On 8 December 2021, the Competition and Markets Authority (the CMA) published its revised consumer law advice for care home providers (Guidance).
On 7 September 2021, the Regulator of Social Housing (RSH) published its annual consumer review. The review covers the year 2020-21 and following a record number of regulatory notices in the previous year, it is perhaps understandable that the year saw only one regulatory notice as RSH sought to take a supportive and proportionate approach in response to the pandemic. However, the review provides a valuable insight into the issues causing RSH greatest concern and highlights a number of issues that providers will need to address.
RSH has once again taken the opportunity to remind providers of the need to anticipate the changes to the regulatory regime outlined in the Social Housing White Paper. It is anticipated this will require providers to take a more holistic view of resident safety, looking to ensure that all safety-related risks are addressed rather than simply ensuring that specific statutory obligations are complied with.
The review also highlights the need for providers to comply with their new obligations outlined in the Fire Safety Act, which removes any ambiguity over the responsibility of providers for the exterior of properties (comprising two or more residential units) and to anticipate the changes which will be required by the Building Safety Bill. Providers with buildings falling within the scope of the Building Safety Bill will need to be ready to comply with enhanced obligations in relation to safety, once again focusing on a need to take a holistic view to ensure that buildings are structurally safe and that all fire safety risks have been addressed, rather than simply taking a checklist approach to compliance. We have prepared a range of tools to support providers in planning and monitoring their approach to building safety. For more details please contact firstname.lastname@example.org.
At present, RSH only has a remit to take a reactive approach to breaches of the consumer standards, however, the review contains a reminder that in the future RSH will take a proactive role. Providers will need to be ready for periodic inspections, scrutinising the effectiveness of their operational approach, with the timing of inspections likely to be based on risk. In planning how to prepare, providers would do well to look at the new strategy adopted by the Care Quality Commission (CQC), with inspections in the care sector increasingly taking place in response to concerns about risk and a dramatic rise in poor inspections outcomes. The data used by the CQC to trigger inspections mainly arises from complaints, statutory notifications by providers and reports from third parties such as local authorities.
That approach appears to be echoed in comments made within the consumer review "All providers should respond to issues or complaints promptly. The pandemic and subsequent restrictions affecting us all may have impacted upon some registered providers’ ability to resolve concerns in line with their usual timeframes or processes, but the importance of learning from complaints should not be overlooked. Complaints provide rich insight for boards and councillors about the performance of services and are often an early indicator when things are going wrong". Providers who use complaints data in this way may well reduce the risk that RSH will be prompted to bring forward an inspection and should be well placed to demonstrate that effective action is being taken when an inspection does take place.
In each previous review, RSH has made clear the value of having robust systems to ensure that all safety-related checks and inspections are up to date. While the 2020-21 review makes much of the flexible approach RSH took to providers balancing their resident safety and Covid-19 related risks, it also takes the opportunity to comment that in the vast majority of cases providers were in a better position to respond to those unexpected and unique challenges because most already had robust systems in place.
The importance that RSH places upon the need for effective systems is reinforced by their message on the link between failures in relation to resident safety and failings in governance. ‘There is a clear correlation between registered providers who are not able to demonstrate they have effective governance arrangements in place, and who cannot demonstrate compliance with the consumer standards. This is particularly the case when we find registered providers have not been meeting all applicable statutory requirements to keep tenants safe in their homes. When a provider has not completed health and safety testing this is usually due to a gap or failure in its governance arrangements.’
As ever, RSH provides a number of case summaries, which provide examples of relevant breaches, the key contributory factors and the conclusions reached.
One case study relates to where RSH identified a failure to carry out a range of statutory health and safety checks. Whilst there had been an initial failure to notify RSH, new board members had identified and taken action to address the problems. RSH went on to find a breach of the Governance and Financial Viability Standard for a range of issues, including a failure to have an effective risk management and internal controls assurance framework. In reaching that conclusion, RSH regarded the failure to ensure that statutory health and safety requirements were met to be a critical indicator of governance failings.
In a second example, a large registered provider self-referred following an investigation by the Health and Safety Executive into an asbestos disturbance. A contractor had been given a copy of the asbestos survey for the property at which they were working, which identified asbestos-containing materials but did not specify the location. There was no tenant exposure to asbestos and the matter was reported to the HSE. While the HSE concluded that there was a breach of health and safety legislation, RSH did not find a breach of the Home Standard because systems were in place and because appropriate steps had been taken to manage the incident once it occurred. It is also likely that RSH will have been unable to establish that residents were exposed to a serious detriment in this scenario, which at present is a requirement before they can issue a regulatory notice. Given the proposed abolition of the serious detriment test (also outlined in the White Paper), it will be interesting to see whether a similar breach would in future reach a different conclusion.
In a third example, a provider made a self-referral and explained that it had been moving to a five-year electrical inspection programme. In doing so they identified that there were a number of properties that had not had an electrical safety check in the last 10 years. However, the provider gave the assurance that it had commissioned an electrical audit in 2018, including reviewing the storage of certificates. The provider had also engaged with industry specialists to provide expert advice. The inspection programme was risk-based, taking into account tenure, the height and age of buildings. Based on the available information, RSH was convinced that the provider was managing electrical safety and did not find a breach of the Home Standard.
With the sector moving towards the implementation of the proposals in the White Paper and preparing for the Building Safety Bill becoming law, the review provides helpful insight for providers. The emphasis is on providers having robust systems, policies and procedures; having the systems, procedures and policies alone, however, is unlikely to be sufficient and providers must ensure and seek assurance that they are being applied effectively and consistently.
For more information
For further information in relation to this article, please contact your relevant ACS contact or Tim Coolican.
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