Principal Legal Advisor (Adult Social Care)

Anne Palmer

Principal Legal Advisor (Adult Social Care)

Customer & Corporate Services Directorate – Legal Services

Care Quality Commission

Citygate

Gallowgate

Newcastle upon Tyne

NE1 4PA

16 June 2017

Dear Ms Palmer

Account: 1-2998554682

Client: Allen Heath; The Old Rectory, 70 Risley Lane, Breaston, Derby

I write in response to your letter received today by email. This correspondence has also been reviewed by my Client.

Your response is not satisfactory and fails to address any of the points raised by my Client in respect of the validity of the judgements reached by the inspector and her failure to consider evidence. This evidence has now been ignored by an inspector, her manager and the Principal Legal Advisor of a national regulator. This is unacceptable. My Client has pointed out, now in two separate pieces of correspondence, the flaws with the draft report and the regulator has failed to consider them. You note that you have considered the points individually at a MRM on 15 June 2017 but do not elaborate on the results of those discussions or who was present at that meeting. We now require full disclosure of the minutes of that meeting.

You have failed to provide any basis for your organisation’s continued refusal to consider evidence.

I have been instructed by my Client to make clear to the CQC that he formally rejects the final inspection report that has been produced. The report is based on the unreliable and uncorroborated judgement of the inspector. If he receives any enquiries about the report from any party he will make his position clear.

My letter dated 12 June 2017 does not in any way amount to the personal abuse of Andrew Peck. My Client’s concern is more specifically directed at the inadequate and biased system set in place by the CQC. As this firm has pointed out, on a number of occasions, the way that factual accuracy comments are considered by the regulator is not acceptable and does not provide a fair or transparent opportunity for Providers to have their views taken into consideration. It cannot be right that the primary person considering factual accuracy comments is the very person who has made the errors in the first instance. In order to satisfy the ruling of the SSP case, the CQC now requires that the responses provided by the inspector are “signed off” by their own manager. My Client’s concern simply relates to the obvious problem of lack of impartiality. How can a target driven inspection team, from the inspector to their manager, seriously be trusted with amending inspection reports without any reference to an unrelated person at the organisation? It is plain that it is not in that team’s interest to admit that errors have been made or to change a report in a way that would show themselves or their colleagues to have acted improperly or that there are weaknesses in the way that the team inspects services. This could have negative repercussions for both the inspector and their manager.

In a recent case handled by this firm our Client submitted factual accuracy comments, CQC’s response failed to properly consider evidence despite the document being signed off by the Inspection Manager and the Client expressed concern that this had happened. The Inspection Manager concerned accepted that the mere existence of a dispute was cause for a further review and ordered an Inspection Manager from an unrelated region to conduct the factual accuracy review again, in full. This was done and resulted in a number of elements of the report being changed. That manager not only reviewed the response of both the Provider and the CQC inspector, but also looked in detail at the evidence submitted to support the challenges made. This is true impartiality. It also demonstrates a reasonable approach by that CQC employee and that your response as contained in your letter is not one that is universally followed across your staff team. This inconsistency is very confusing for the providers that you regulate. My Client has lost out because the individuals concerned, representing your organisation have taken it upon themselves to fetter their discretion and not advance the FAC response to an unrelated party where people at the same level elsewhere in the country would acknowledge, in virtually identical circumstances, that a further review was required. In our view, this was what was intended in the judgement of the SSP case and we are hopeful that future cases will crystallise this.

Please note that my Client not only made an FOIA request, but also a subject access request (under the Data Protection Act 1998) for any documentation that refers to him by name. I expect to receive any correspondence, internal communication / memo, minutes of any meetings or notes that identifies my Client. Your point about the documents only being what “members of the public would be allowed to see” does not apply. I understand that this will be processed by your Information Access Team.

Finally, you express concern about some of the assertions made with reference to information about what the staff members’ experience of the inspection was. Your suggestion is that my Client has been applying undue pressure on staff in order to get information about the conversations they had with the CQC inspectors. This concern has no basis. The draft report was shared with staff in order to investigate its factual accuracy. During this review staff members approached my Client and have categorically denied that the statement made by the inspector was accurate or what they said. The reason we have requested the notes of the inspection was partly to identify the truth of the assertions based on staff statements but you have refused to share those notes, thus asserting your decision not to conduct a full investigation of my Client’s concerns.

Your approach is a disappointment andis not the type of response we would have hoped for from an impartial national regulator tasked with delivering accurate and well-reasoned reports. The approach employed by your representatives is inconsistent and inherently unfair. We would remind the CQC that its failure to produce accurate inspection reports that are then released into the public domain could have extremely negative consequences for providers and that the CQC will be held accountable where it can be proved that it has knowingly done so.

I am now on annual leave until 3 July 2017 but you or your colleague may respond to Laura Paton who is progressing this case in my absence.

Yours sincerely

Jenny Wilde

Senior Associate Solicitor