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3rd January 2014

CFW's response to Inspection & Regulation White Paper is published

Care Forum Wales is publishing its response submitted in response to the consultation on the Welsh Government's Inspection and Regulation White Paper.

This response, compiled by senior policy adviser Mary Wimbury, was submitted ahead of the deadline for consultations on January 6, 2014.

You can read our responses to consultation questions is below, in full:

The Future of Regulation and Inspection of Care and Support in Wales

Response from Care Forum Wales, January 2014


Section 3 – A Citizen Centred Approach

  1. What, if any, challenges will there be to introducing an outcomes-based approach to regulation and inspection?


Care Forum Wales believes regulation can reasonably look at welfare, risk and safety, including safeguarding: effectively an MOT for care homes. Commissioning and therefore contract monitoring needs to focus on quality and outcomes.

Currently there are issues around duplication of the two functions with commissioning / contract compliance taking little account of the role of the regulation and inspection process and vice versa. We are concerned that, without a clear focus on commissioning, this will be perpetuated and become increasingly entrenched through a more outcomes focussed approach to regulation and inspection. There is a danger that regulator will effectively be commissioning by the back door unless commissioners are bound and regulated to ensure they are commissioning a service based on outcomes.

Outcomes need to be built effectively into commissioning and contract monitoring to ensure they are realistic against what is commissioned and paid for. It should then be the job of the inspection and regulation regime to inspect commissioning to ensure it is appropriate, as well as inspecting providers. Otherwise our fear is that commissioners commission the bare minimum and that providers are judged on quality of life outcomes.  This will put considerable strain on providers. We already have situations where the provider is put in an invidious position: being told by commissioners, that that is the level they are commissioning at but by the inspector that they should have refused the work if that was all they could provide at that price. In summary commissioning against outcomes must be the first step and should be built into the work to take forward the Memorandum of Understanding Securing Strong Partnerships in Care.

If Welsh Government wishes to regulate and inspect against outcomes it needs to be borne in mind that:

  • Outcomes are difficult to define (e.g. how it will look on the ground and be meaningful for the citizen) and even more difficult to measure in a transparent and consistent fashion;
  • Outcomes need to be drawn up against an appropriate baseline e.g. how much has service intervention improved, say quality of life, compared to how it was previously, the expected outcome, alternative forms of provision;
  • There is a need to define through a Person Centred Planning Process what outcomes matter to service users, their families and society as a whole; Outcomes are also often determined by commissioners with little reference to service users.
  • Outcomes need to be realistic compared to what is being commissioned and paid for. The fees paid can impact on and determine the extent to which outcomes can be fully realised.
  • Social outcomes are often overlooked for older people and these should also be included;
  • Finally consideration would need to be given into how an outcome based regulation and inspection regime would tie in with enforcement and prosecution and this may require a review of National Minimum Standards to ensure that they reflect outcomes and are fit for purpose.

The body or bodies responsible for regulation and inspection should also use its role to promote and share good practice within the sector.

Finally consideration would need to be given into how an outcome based regulation and inspection regime would tie in with enforcement and prosecution and this may require a review of National Minimum Standards to ensure that they reflect outcomes and are fit for purpose.

  1. What, if any, benefits will there be to introducing an outcomes-based approach to regulation and inspection?

An outcomes-based approach to regulation and inspection would require significant work to be done with regulatory and inspection bodies to ensure consistency. We are already seeing regulation move from objective to subjective and would argue this is not appropriate, is hard to maintain consistency and is not the role of regulation. Traditionally inspection and regulation has been focussed on minimum standards and more specifically compliance with regulations and it has been up to commissioning to build in quality. Commissioners are still struggling significantly to commission against outcomes and without this it is difficult to see how any inspection and regulation based on outcomes can be built. Any regulation and inspection system should benefit those using services by focussing on outcomes for them. An outcomes focus could also provide benefit if the advantages from particular courses of action are clearly identified and enabled to be spread.

  1. What is your view of our requirement for service providers to produce an annual report?

An annual report could be a useful tool to allow prospective users, commissioners and families to compare and contrast service provision.   However, it needs to be clarified whether these are in addition to or a development of existing requirements e.g. the Service Review under Regulation 33 in Children’s Homes.

Any such additional requirement needs to be mindful of the burden on providers and make similar and at a similar time to other demands for information e.g. CSSIW SDF and SASS, returns for SCiP etc., requests from commissioners. This is a particular issue for SMEs.

The report should make use of and bring together other publicly accessible and easily identifiable and verifiable information such as the scores on the doors for food hygiene rather than expecting providers to reinvent the wheel.

We would also suggest a statement of financial viability being included or added to the accounts from either the homes accountants or their banks .

  1. What information do you think should be included in the annual reports?

In addition to those areas outlined we would like to see other independent accredited awards, such as Investors in People encouraged and included in a ‘scores on the doors’ type format, together with membership of any professional organisations, such as Care Forum Wales. Any measures would obviously need to be carefully considered and readily understandable by the public e.g. a high level of POVAs may well indicate a robust reporting mechanism but might signify a problem to the public. Staff turnover might be could be included, but would need to be compared to similar services e.g. CSSIW, local authorities, NHS.

We would also expect to include a commentary on or response to the CSSIW report from the provider and comments from service users and families.

  1. Do you think a quality judgement framework will be a useful tool for the citizen? Why/why Not?

A quality judgement framework could be useful if it is properly developed, robust and is subject to an independent appeals process. We would question how well this can this work with the current snapshot inspections which give a picture of the service on one day rather than the more rounded view experienced by residents, other service users and families throughout the year.

Lessons should be learned from the trial of a quality framework in Newport and Torfaen, which focussed on tick boxes rather than outcomes and took a considerable amount of provider time for little result.

  1. Are there any other ways we could provide citizens with more control over the care and support they receive?

There needs to be an understanding that in the same way some citizens will feel more comfortable holidaying in a homely B&B and others in a more clinical chain hotel, citizens will make different choices about service provision. Such legitimate differences and choices should be understood and expected.

Some of these differences are matters of taste. However, we also need to be realistic that unless public funding for social care is significantly increased we have a two tier system for care homes for older people in the UK. The quality expected and provided in some care homes in affluent areas, mostly in England, where the majority are private payers cannot be provided on current public sector fees. But these are the areas where significant numbers of new care homes are being built. In Wales, where the vast majority of social care is is paid for by the public purse there often seems to be denial of this.

There may also be situations where citizen (or family) rights cannot be met by service. There may be problems where citizen control collides with the Mental Capacity Act, or where people make choices that are not deemed appropriate e.g. they would prefer not to be re-abled. It also needs to be recognised that there are particular issues with looked after children, who need an element of control in order to feel safe as any child does.

We need to recognise that for citizens to genuinely have more control over services, service providers need to have permissions to be innovative in the way they work. Over the past two decades it has become much more difficult to be spontaneous or to encourage people using services to take the day to day life ‘risks’ that we all experience without thinking about. For example, it is insulting to ask people to prepare or help clear up after meals using plastic utensils and washing up bowls on dining room tables, when a few months ago they may have been managing their own household. There is something very limiting about the way we treat older people, who after all have more life experience than the rest of us.

Managers are striving for families and people using services who are completely happy with everything, to satisfy inspectors when we all know that people who are in control and empowered are far more likely to provide constructive criticism (if we are fortunate). Citizens must have more control over the care and support they are offered and that must start with an assessment process that seeks to find out what support the person believes they need, rather then what the professionals think they need. We all have to change the way we perceive people who access services and the power of the professional, the regulators need to lead the change and that means very different attitudes. We have to have far more than ‘informed consent’ to move this forward and we have to work in genuine partnership to achieve it, this means that we all have to recognise our prejudices. There must be a genuine equal partnership with independent providers in both the voluntary and private sector. This is difficult when some professionals and regulators reinforce deep negative preconceptions.

  1. How could the service regulator involve citizens further in their work?

Residents, other service users and their families should have an ability not just to respond to pre-inspection questionnaires but to comment on inspection reports and have their comments considered and incorporated in or published as an appendix to the published report. In order to give the citizen voice, choice and control it does not seem reasonable that their home can be subject to subjective comments widely available on the internet, increasing numbers of which are not seen as accurate, with no right of reply.

Like tripadvisor, CSSIW should allow verified comments and a right of reply on inspection reports.

There is also a need to consider how to effectively engage with children and young people in this process as the approach will probably need to be different to that used with adults.

  1. Are there any other ways we could strengthen the voice and control of the citizen in regulation and inspection that you believe we should consider?

We believe there would be greater understanding of and support for the inspection and regulation system if there were an independent appeals mechanism for inspection reports. We believe this would also ensure there was greater consistency in inspection reports between different inspectors. Good inspectors can communicate well with citizens, but we believe this is an area where further training is required for some. Again there is a need to consider how to communicate effectively with children and young people as questionnaires are not the most effective means. There is also a need to make effective use of information from the Older People’s and Children’s Commissioners.


Section 4 – Firm and Broad Regulation

  1. What, if any, risks are there to a service based regulatory system?

It is important to ensure each setting is still inspected appropriately and that there is a level playing field in inspection between smaller and larger organisations. Managers of individual parts of the service must be clear that responsibility rests with them, not with head office. It also needs to be clear that if one part of a service has difficulties there is not an automatic judgement made against the service as a whole.

It is particularly important to ensure that this new model closes any current loopholes and does not create any others: in particular we are aware of the current situation of domiciliary care agencies operating in Wales but only registered in England which needs to be rectified.

  1. What, if any, benefits are there to a service based regulatory system?

It would be clear who holds the ultimate corporate responsibility and would seem to make sense and allow for service innovation provided the points above are addressed.

  1. Are there any services that are not currently regulated that you feel should be? Why/why not?

We believe that there should be regulation of those providing care to people in receipt of direct payments from the public purse and also of agencies matching service users with personal assistants.   Our view is that the latter are effectively an unregistered domiciliary care agency and the lack of regulation in this area is a major safeguarding issue. Regulating supported living arrangements, staffing and employment recruitment agencies should also be considered to ensure a level playing field and safeguard the citizen.

We also need to ensure that any new models fit within the regulatory framework e.g. extra care housing in the grounds of a care home. This may well make care more sustainable and allow innovation. There also needs to be clarity about responsibility when you have health professionals e.g. district nurses going into a care home, they are responsible for the care they deliver, not the home.

Consideration should also be given to regulating NHS services, as they are in England, as this was key in identifying issues in mid Staffs. Combining the work of Health Inspectorate Wales and CSSIW should also be considered. This is particularly important for nursing beds where the same person may be under one regulator one week and another the next without their needs having changed substantially as they move from hospital to a care home or vice versa.

  1. Should local authorities be required to produce an annual report which will provide the basis of inspection by the service regulator? Why/why not?

We believe local authorities should be required to produce a public report for inspection and that this would provide a level playing field with those providing services. In particular we would like to see them report on their commissioning of services in a way that can provide a framework for inspection.   As addressed earlier the link between commissioning, payment and quality needs to be drawn out. At the moment we feel it is too easy for the inspectorate to hold providers responsible for commissioning failures and too hard for them to hold commissioners to account. Effectively providers are held to account for others’ failings, even though they are beyond their control.

  1. How could the regulator assess whether the Responsible Individual is a fit and proper person?

We would expect a DBS check and an interview to ensure the Responsible Individual understands their responsibilities and has sufficient standing within their organisation to deliver on them and with the appropriate level of accountability.

Also need to assess how the RI views the discharging of statutory; contractual and professional duties.

There should be clarity for regulators of the role and expectations placed upon the RI and ways of ascertaining ‘fitness’. For instance it has become quite common for the RI to be asked to complete the Level 5 Diploma required of Registered Managers. As this is a competence based qualification it is unlikely that all RI’s will be able to complete this with any integrity, as their role will not always match the NOS on which the qualification is based. This leads to the question why if RI’s are asked to complete the competence based qualification required of the RM and deputies we need two clearly identified roles?

  1. Do you think the requirement for service providers to undertake a risk assessment about continuity of service would help prevent provider failure? Why/why not?

This feels like a reaction to the last problem i.e. Southern Cross rather than the next one. In Wales we are heavily dependent on small, family providers to operate – particularly in rural areas. The demands on them should not be so onerous as to make their continuation impossible.

Better solutions might be for the local authority to consider the risks of its own commissioning position, including whether too much of the local market was with one provider, particularly if it is a large national provider, without significant local links . Co-operative or mutual solutions to provide continuity drawing on the expertise of other local providers could also be considered.  

We would also like to see risk assessments on extended stays in hospital for older people, so that a fair comparison can be made between care in care homes and in hospital.

  1. In the event of provider failure, would local authority contingency plans help ensure the continuity of service provision? Why/why not?

Local authorities and LHBs should have a responsibility to prepare such plans or approve providers’ plans. The detailed contract between providers, the LAs and UHB in Cardiff, Vale of Glamorgan, Merthyr and RCT was prepared by agreement of representative of all parties. The contract makes detailed provision to allow the commissioners to enter into homes, pay existing staff until orderly arrangements are made for the well being of service users. Such a contract could be implemented across Wales and there would be a double safeguard and managed transitions would be possible that would be in the interests of service users. Please also see our answer to the previous question.

  1. Do you think a registration fee should be introduced for organisations registering to provide care and support services? Why/why not?

A survey of Care Forum Wales members in November indicated unanimous opposition and that none thought it would improve the quality of regulation and inspection. So far, we haven’t found anyone who think this proposal will improve regulation and believe other organisations have found the same. Given that the vast majority of care and support within Wales is funded by the public purse we believe the transaction costs involved in recycling public money around the system will outweigh any gain and do not believe this will improve the quality of inspection and regulation. An independent appeals mechanism would be far more likely to do that.

  1. Do you think a fee should be charged for organisations providing care and support services to renew registration?

No for similar reasons to our answer to question 16.

  1. What, if any, challenges would there be to introducing time limited registration, in particular circumstances, for organisations providing care and support services?

Time limited registration could well force a provider in difficulties under as there would be a disincentive to use such a service and an incentive for staff and current users to look to move elsewhere. Access to finance and capital could also be a problem. There is currently provision for CSSIW to close a service down with immediate effect and therefore we do not see why this additional provision is needed. Also prior to getting to the stage of closing a service CSSIW can issue compliance notices which do require the provider to address a particular issue relating to the service not meeting regulatory requirements within a specified timescale to report back once the compliance matter has been addressed which gives CSSIW the opportunity to carry out a further inspection if felt necessary.

  1. What, if any, benefits would there be to introducing time limited registration, in particular circumstances, for organisations providing care and support services?

We cannot see any benefit or need based on the above comments.

  1. Do you think that the service regulator has sufficient enforcement powers? Why/why not?

Yes – as stated above homes can and are closed under the current system. Often such closures are against the wishes of residents and families and this needs to be considered as we increase the emphasis on citizen control.

Other compliance measures can also be imposed with time scales for remedial action to be taken.

  1. Should the existing offence of providing false or misleading information in an application form be extended to the provider’s annual report to the inspector? Why/why not?

We agree that it should in order to protect good providers. However, such an offence should also apply to expert inspectors.

  1. What are your views in relation to making provision for ‘aggravated’ versions of certain regulatory breaches which would provide stronger sentencing powers to the courts in relation to the most serious regulatory breaches?

At the present time it is difficult for many providers to recruit staff, nurses and managers and there is a particular shortage of managers in adult care. We feel the pressure staff, and managers in particular, are placed under by, for example safeguarding investigations, is discouraging staff from seeking such positions. We feel any hardening of such regulatory breaches would only be likely to make the situation worse.

Furthermore, if such sanctions could apply to the workforce it would need to be ensured that they were compatible with employment law.


Section 5 – Strong and Professional Delivery

  1. Are there any groups in the care and support workforce that are not currently registered, that you think should be? Why/why not?

In an ideal world we would like to see all those working in the care sector registered. Our first priorities would be:

  • Personal assistants – we are aware of people switching from domiciliary care after incidents which may make them unsuitable;
  • Social work assistants
  • Commissioners
  • Contract monitors
  • Inspectors

That said we recognise this is aspirational. It will take a long time to professionalise a workforce that is generally unrecognised and certainly undervalued for the work it does by professionals and to some extent the general public who do not rely upon their support. Support should be given to the Academy of Care Practitioners to further professionalization of social care.

Whilst the Care Council for Wales has worked steadily towards professionalization for over a decade, during the past two years their influence has been diluted by changes outside their control which fall within the remit of education and training.  Social care must be the only profession that does not have a strong  Professional Body of its own or indeed any way of regulating or managing those who assess and train the staff who will be responsible for facilitating the change in power balance and control of services.  For the change to be successful monitoring and regulation of social care training should be firmly in embedded within social care and ‘owned’ by the sector.  

  1. What, if any, challenges would there be to extending registration of the care and support workforce?

Financing it would be challenging. We have already highlighted recruitment problems and would expect requiring care workers to pay a registration fee to make recruitment more problematic.

The implementation would also need to be carefully thought through. The current manager shortage has been exacerbated by a failure to allow suitable candidates reasonable time to obtain the qualification.

  1. What, if any, benefits would there be to extending registration of the care and support workforce?

We would expect to see a more professionalised workforce and more reliable staff. There would also be a public assurance benefit and we would expect the positive feedback and reinforcement to lead to a better trained social care workforce.

There is also evidence that regulation of the workforce can contribute to workforce development and therefore service improvement.

Such a change could also provide data that would support the creation of a National Data Set.

To make transition easier and assess gains registration could be introduced at varying levels for different groups.

  1. If registration is extended, what are your views about extending protection of title to other groups in the care and support workforce?

Currently this primarily relates to social workers.   However we would like to see consideration given to protecting the title of Manager. Given the current shortage of managers this could enable a service to be designated as having an unregistered manager rather than being non-compliant.

  1. If registration is extended, what are your views about extending protection of role to other groups in the care and support workforce?

Should include those working for people receiving direct payments i.e. personal assistants

Social work assistants


CSSIW inspector

Residential Child Care Staff – to raise their professional profile that reflects the complexity of their role.

  1. What is your view of the proposal to require social care managers to only register with the workforce regulator?

We believe it makes sense to only register with one.   However, this would need to include a fit person test rather than basing registration on qualification alone.   The Inspector would also need to be required when inspecting a service to inform the workforce regulator of any relevant issues involving the manager. It is important that management skills are seen as a primary need rather than an over-focus on social care practice.

Currently the system feels one-sided in that the regulator can assess if a provider has an appropriate manager in place as part of the performance of the provider. However the provider is still fully responsible for the calibre of their manager.  There need to be clear guidelines on the person specification of a manager.

  1. What are your views on our plans to remove voluntary registers?

We would like to see a move towards compulsory registration of the social care workforce. In the meantime there is a need to consider the impact on those registrants who have registered on a voluntary basis if access to the register for them is removed.

  1. What, if any, risks are associated with negative registers?

We believe negative registers involve the bulk of the costs of positive registration without many of the benefits. We would prefer to see a positive register.

  1. What, if any, benefits are associated with negative registers?

They may identify some people who shouldn’t work in sector who are not currently picked up.

  1. Do you think we should adopt negative registration in Wales? Why/why not?

We believe considering the costs and benefits it would be better to plan to roll out compulsory registration and in the meantime rely on DBS and employment checks as well as the on-going employment processes of supervision and appraisal.


Section 6 - Taking the next step to Improvement and Professionalisation

  1. What are your views on the proposal to introduce a National Institute of Care and Support?

Care Forum Wales believes it is important to have a strong voice for social care in Wales. We understand the call for a National Institute based on the Care Council; however, we believe that it might provide better continuity to call such a body the Care and Support Council. We would not want to see the ground the Care Council has already covered and what it has achieved to date in terms of profile and reputation which could be lost with a change of name.

There is also the cost of ‘rebranding’ which we believe adds to the view that more could be lost than gained.

  1. What functions should the Institute be responsible for?

We would see the Institute or Council as a strong voice for improvement in Social Care in Wales which is responsible for the current remit of the Care Council plus regulation and registration of training companies within the care sector. We would like to see it continue to take into account the voice and experience of the registered and regulated to ensure they can influence current practice – we believe this contributes enormously to the strength of the current Care Council. We would like to see a regulation of social care training, the promotion and dissemination of good practice and the commissioning of research to develop and inform practice, although the latter function should be in conjunction with SCiE. We would strongly urge continued support for SCiE, which provides a powerful well-funded voice with an all UK remit, where Wales gets significant benefits for a relatively small input.

This body could also have an overarching remit or ‘watching brief’ over the activities of regulators and commissioners of social care provision to ease and facilitate the change process to citizen lead services across Wales.


Section 7 – Working Together

  1. Do you think that the functions of service and workforce regulation should be carried out inside or outside of the Welsh Government? Why?

Whichever model is adopted two things are important:

  • The public are clear who is ultimately responsible – the Minister or a Board?
  • Users and providers are part of the governance structure as is currently the case with the Care Council. Their involvement is vital and both should have a voice in the governance of the service and workforce regulator.


The Welsh Government is interested in understanding whether the changes proposed in this White Paper will have an impact on groups with protected characteristics. Protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex, and sexual orientation.

  1. Do you feel that the changes outlined in this White Paper will have any positive impacts on groups with protected characteristics? If so, which changes and why/why not?

Anything that improves the status and improvement role within social care in Wales will have a positive effect on those who use such services, specifically older groups and those with disabilities. Citizen led services apply to all the citizens of Wales.

  1. Do you feel that the changes outlined in this White Paper will have any negative impacts on groups with protected characteristics? If so, which changes and why/why not?


  1. What are your views on any costs associated with the changes outlined in the White Paper?

Costs are very closely linked to the quality of what is commissioned. This will depend in part on the quality demanded from providers and on the recognitions of increasing demographics.

  1. What opportunities do the proposed changes set out in this White Paper provide to reduce or replace the current system of regulation and inspection?

We have already highlighted the burden of duplication on providers from regulators, inspectors and commissioners.   Any time and resource that is freed up from this can go into directly improving care provision.

  1. We have asked a number of specific questions. If you have any related issues which we have not specifically addressed, please use this space to report them.

We would like to see improved process for sharing appropriate information with providers as fellow professionals with social workers, and NHS workers to the benefit of those being cared for as well as with safeguarding agencies and commissioners.

It is also important to build on what is clearly working ‘some things are not broken and do no need fixing’ and avoid introducing legislation in response or reaction to things that have gone wrong e.g. Southern Cross which could be seen as isolated examples (albeit with a major consequence). History tells us that such action is likely to have other adverse consequences.

Finally we would like to urge more integration between different departments of Welsh Government. Firstly since the vast majority of social care providers are SMEs we would like to see greater co-operation between the Health and Social Care, Local Government and Business departments to promote home-grown welsh businesses, and development and commissioning which encourages spending the welsh pound in Wales. Secondly there is a role for Education, Business and Social Care to come together to develop employment skills needed for social care and grow our own workforce.




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