Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
On page 68 of the report is a table which sets out which regulations were breached when enforcement action was taken. The table shows that failures in governance were the most common marker indicating the need for enforcement action. Taking the report and statements regularly made by Andrea Sutcliffe and David Behan, it is fair to say that what is meant by failures of governance in this context really means failures of leadership.
We act for hundreds of care providers and a number have been subject to enforcement action. Often the action is in respect of one location among many otherwise good, or even outstanding, services, which tends to support the widely held view that problems are often more of a marker of failure of local leadership than of organisational failure. It is a truism of the care sector that a good manager makes a good service and vice-versa but if that is so, why do organisations allow poor managers to continue to lead services without proper challenge or adequate support? Is it not at that level (i.e. supervision and reporting) that there is a governance failure, or lack of leadership, in dealing with known problems?
Boards set the tone for the governance of organisations of any significant size and it is not good enough for Boards to explain failures solely in terms of local management. Their governance structures ought to provide a clear line of sight right into performance at the service level so that problems can be spotted, actioned and any learning integrated across all services, thus driving a virtuous feedback loop. Such a process is exactly what demonstrates “effective” services in terms of the KLOE assessments.
Senior directors who approach us when enforcement action is threatened almost never seek to deny there are problems. If they do wish to challenge the actions which CQC is threatening it is usually because they consider there has been a poor inspection process, in which case it is possible to divert CQC from enforcement action, with a measured approach asserting they have not acted in accordance with their own procedures.
Where there are real problems with a service, most well-advised providers will work with CQC and demonstrate a wish to get things right with CQC’s assistance and we have been involved in several cases of services being ‘turned around’ in this way.
However, from a governance perspective, the lack of surprise about poor services begs the obvious question; why have the problems not been resolved before CQC threatened action? A harsh question, but aren’t hard questions exactly what Boards are there to ask their executive team?
For further information please contact John Wearing. John is a leading UK expert in his field, advising many well-known care providers on strategic issues concerning good governance, risk management, portfolio development and the transfer of care assets.
The UK Government has been consulting on how it should promote social value in its procurements. Here is our response that we submitted to the consultation...
The Tenant Fees Act 2019 came into force on 1 June 2019.
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A long-awaited decision of the Court of Appeal has clarified that a lower standard of proof should apply than previously thought before an Inquest can return a conclusion of suicide.
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Social housing providers will routinely have a number of construction projects underway at any one time. It is essential for client teams to understand and avoid key contract management pitfalls.
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