To ensure they perform fairly and effectively, regulators must consider what lessons and good practices can be learned from other areas of regulation. 

We recently wrote about the proposed changes to Ofsted’s post-inspection arrangements, including how complaints will now be handled (see here). While many commentators have suggested that more is still required to improve Ofsted’s regulatory performance, the proposals appear to be focused on improving communication and increasing the independence and consistency of the inspection process.

This is an approach that many providers regulated by the CQC would also welcome but where Ofsted appears to be introducing positive changes, the CQC’s new approach seems to be moving further away from addressing the core issues with the way they regulate:

1. By setting out clear check-in points to address any issues quickly at an early stage of the inspection process, Ofsted appears to be acknowledging the importance of inspectors and providers having open conversations. Conversely, under the CQC’s new single assessment framework, there will be a shift towards remote assessments and less emphasis on in-person inspections, reducing the opportunity to see and interact with the inspection team and address issues early on. 
2. With the aim of maintaining independence and consistency, Ofsted will replace the internal review step in the post-inspection complaints process, with an independent review conducted instead by the Independent Complaints Adjudication Service for Ofsted (ICASO). Mature regulators can accept constructive criticism, recognising that it inevitably assists them in improving their own performance. A similar independent review process for the CQC seems essential to address the widespread (and self-acknowledged) concerns about inconsistency. Importantly a fair and robust process of challenge and appeal can help regulators achieve a more consistent approach. 
3. Ofsted has also committed to having staff who are independent of the inspection to address providers’ initial concerns and complaints.  Many of the consultation responses likened the previous post-inspection approach to Ofsted ‘marking their own homework’ and it is hoped that the new approach will help to ensure that complaints and challenges are more fairly considered. Similar concerns arise in relation to the CQC’s rating review process, which in practice rarely produces different results to factual accuracy submissions outcomes and reinforces the need for a truly independent process for review.
4. Ofsted is clearly also trying to move away from the use of rating limiters. They have said that where a school that would otherwise be good or outstanding, but is graded inadequate because of ineffective safeguarding arrangements, inspectors will return within three months to carry out a monitoring inspection. If the school has dealt with those issues, they will have a new inspection report and the good or outstanding rating will be reapplied.

In contrast, the CQC has taken a very different approach. A score of one in any single quality statement will act as a rating limiter, with the provider receiving a rating of no more than requires improvement, with no certainty when that rating would be reviewed again. This is of particular concern when considering some of the quality statements with evidence categories that are more likely to be heavily weighted against providers, such as the statement relating to employee wellbeing. In the context of a high number of vacancies within an underfunded sector, the blunt approach being taken risks penalising providers further, for a number of years, for the failings of national and local funding decisions.

As Ofsted strives to maintain better fairness, consistency, and accuracy, as is essential for a regulator, it is important that other regulators such as the CQC are driven by the same values and consider what they can learn from their counterparts in other sectors.  

For further advice please contact a member of the regulatory team.