Posted by Mei-Ling Huang, Partner
Care Management Group Limited v CQC: Size limits for learning disability care homes and the law of unintended consequences
In June and July, the First Tier Tribunal heard an appeal brought by Care Management Group Limited (CMG). At issue was CQC’s refusal to allow CMG to extend the registration of a care home for people with learning disabilities from 7 beds to 10. The Tribunal held that CQC’s refusal of the provider’s application was correct.
In order to understand the rationale for this decision, we need to re-wind to 2011 and the scandal at Winterbourne View. Most of us remember the Panorama program that exposed the abuse that occurred there. It was gut-wrenching and has had seismic reverberations for the regulation of care, commissioning and safeguarding. The regulator and safeguarding authorities were heavily criticised for allowing the scandal to happen on their watch. They responded by taking tougher compliance and safeguarding action.
One effect of Winterbourne View was an examination of how we care for people with learning disabilities. Winterbourne View was a hospital (not a care home) and a highly institutionalised setting. Since the scandal, guidance has been issued that militates towards housing people in community settings with a smaller, more homely feel. The emphasis is on keeping people in their communities near friends and family, not far away in an institution.
There has been guidance issued by NICE, the DoH, ADASS, the LGA, NHS and CQC. The latest incarnation – CQC’s “Registering the Right Support” – was issued in 2016 and then again in 2017. It is long but in a nutshell it advocates registering learning disability (LD) services of 6 beds or fewer in the community. Services that are located in “campus” or “congregate” settings are frowned upon and thought not to comply with the regulations that require care to be personalised and provide dignity and respect.
The Tribunal’s decision
In the CMG case, CQC had rejected the application to add three beds to the service. The Tribunal upheld CQC’s decision. It found that the policy ideals stated in “Registering the Right Support” and the other guidance were correct and furthered CQC’s purpose to protect and promote the welfare of service users. As the provider did not meet the requirements of the guidance, they would have needed a “compelling reason” for CQC (or the Tribunal) to depart from the guidance and approve the application. In the event, the Tribunal held that the provider did not have a compelling reason. The fact that they already had a good rating and provided quality care was not enough to sway the Tribunal. The decision is fact-specific and the fact that the home was in a “congregate” setting (i.e., “separate from communities and with access to the options, choices, dignity and independence that most people take for granted in their lives”) and had an “institutional” feel to it seemed to convince the Tribunal that CQC was right to pursue its policy of registering smaller care homes in the community.
The logical disconnect
The Tribunal’s decision is eminently logical, discussing the various facts and guidance. However, it seems to me that the entire discussion is lacking consideration of a very obvious point: if it is accepted that it is correct policy to only care for younger people with learning disabilities in small services, why is it acceptable for CQC to register very large services for the elderly? Care homes for the elderly are getting larger and larger. 10 years ago, services had 30 beds. A typical new build now has around 100. Should we not be caring for the elderly in small, cosy settings too? What makes the care needs of an elderly person so different from those of a young person? I doubt there is much difference but if anyone has a rationale based on care needs, I would be interested in hearing it.
To be clear, I am not advocating that we put unrealistic size constraints on elderly care homes, but I do think that if one is going to accept the proposition that younger people should be kept in small, community-based services, then we must be honest about the reasons why there is a different standard for registration of services in elderly care. The answer probably comes down to two numbers: (1) the ever-growing number of elderly who need care; and (2) the ever-rising cost of providing that care. Many local authorities are on their financial knees. The elderly care system is too well-established to be changed wholesale. It is would simply be too difficult to care for the elderly in small six-bed homes. While I agree that we should have uncompromising goals for the care we provide, we should also be honest about why we allow a logical disconnect to exist between these two part of the sector.
I also wonder about the effect of this somewhat rigid decision-making by CQC on the LD sector more widely. In “Registering the Right Support” CQC say:
“We do not wish to be overly prescriptive, and it is not our intention to create a ‘one size fits all’ approach. We will support genuine innovation where providers are able to demonstrate that their model aligns with the national model and is underpinned by evidenced-based best practice.”
However, it seems to me that this decision and this policy will stifle quality and innovation. Providers tell me that in order to provide excellent care for people with high-level needs, they must have a sizeable management and staff team. The size and quality of that structure provides their homes with the stability and attention to detail that fosters outstanding care. The problem is that the guidance ignores the reality of LD care, which is that local authorities and CCG’s are putting aggressive downward pressures on fees. The already existing larger homes will be able to submit cheaper tender bids and win contracts. Smaller, very high quality services simply have better management structure, which results in higher costs.
Turning to the issue of innovation, there are also outstanding providers who have great ideas about the new kinds of facilities they could provide in a group setting. However, due to the very realistic fear that these won’t be registered, they will never risk bringing them to fruition. One cannot expect to have innovation without allowing the scope for the blue-sky thinking that fosters it. The bureaucratic decision-making process (in which standard decisions are the goal) is simply at odds with that type of thinking. This is not CQC’s fault; they must provide a standardised set of decisions. However, it should be recognised that the sort of constraints that this guidance imposes will have negative, unintended consequences for the provision of LD care.
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