Response to PSA consultation on approach to reviewing the regulators

2 March 2021

Dear Alan,

Re: Professional Standards Authority consultation on their approach to reviewing the regulators

We welcome the opportunity to comment on the Professional Standards Authority’s review of their performance review process and to provide feedback which we hope will support that work. As a new professional regulator, we are experiencing the Authority’s performance review process for the first time. At the time of this consultation feedback, we are part way through that process. Our comments on the consultation are therefore limited by that context.

About us

Social Work England is a specialist body taking a new approach to regulating social workers in their vital roles. We believe in the power of collaboration and share a common goal with those we regulate - to protect the public, enable positive change and ultimately improve people’s lives.

Consultation feedback

Question 1: Are there other concerns about the current performance review process that we have not identified here?

Generally, the key areas for the current performance review process have been identified in this question and we would agree with much of the feedback already received by the Authority in this area, as outlined in 2.8. We would particularly support the views expressed by regulators for more regular and frequent engagement during the year. We believe this would help address potential areas of misunderstanding or lack of clarity, allowing for greater focus for the targeted questions on the key issues in relation to how a standard is being met or not met. Such engagement would also support an approach that could be more risk based and move away from an annual review cycle for all regulators.

At 2.4 the consultation document references the internal decision-making panel and its role on deciding the nature of the review. It has been our experience that the reasoning behind the decision of this panel to carry out a further review is not very clear and does not come through in the targeted questions. It may be worth examining this process and again it may be aided by improved ongoing engagement.

Question 2: Do you have any comments on our role or the broad approach that we take to performance review as we have set out here?

The Authority’s proposed approach to focus on how the regulator is aware of and is addressing the risks to the public by its registrants can offer a relatively narrow view of the regulator’s performance. Aligned with the Authority’s question on whether it could focus more broadly on outcomes aligned to public protection, perhaps a wider focus would enable a more holistic view of performance.

To be aware of the risks and to properly address them, it is crucial that the regulator is immersed in the issues that impact the profession and those with experience of the profession. It must also be able to respond with a range of regulatory tools that can be applied to the unique context of the profession. It is important that regulators anticipate, participate in and respond to the changing needs of society, their sector and the professionals they regulate.

It would be useful to explore, through ongoing engagement, the context for the profession and agree a broader view of what needs to be considered when looking at the performance of a specific regulator.

Question 3: Do you think we should continue to look at the regulators’ performance against all of the Standards every year or could the scope of our reviews be more targeted?

Reviewing every standard each year may be viewed as disproportionate and can leave very little room for a learning approach which would underpin progression and sustain development over time. The road to quality is always under construction and it is important to allow time to evolve and grow. In this context it is difficult to see how annual performance reviews against all standards can sustain a learning development approach that builds year on year on the quality of performance. We would suggest a more nuanced and potentially thematic approach to ensure all standards are assessed in depth over a reasonable timeframe.

The Authority could adapt the focus and frequency depending on level of risk, recognising that it takes time to ensure sustained and embedded improvements in performance.

The Authority should seek to assure themselves that a regulator’s improvement plans are robust, measurable and monitored via the regulator’s own routine reporting and assurance mechanisms.

Question 4: If we were to change our approach, are these the right factors for us to consider in determining the scope of reviews? Is there anything else we should be considering?

The introduction of new processes and procedures alone should not necessitate a more detailed review, if there is no evidence that the outputs have had a negative effect. We’re concerned that this could discourage innovation and change.

We think using the dataset alone to determine ‘serious adverse variations in performance’ is not sufficient. We would also ask what the Authority defines as ‘serious’ and whether it would take into account contextual factors?

We also note the use of key performance indicators in the Authority’s consultation proposals. We think these should be defined by the regulator and not the Authority. The context against which a regulator fails to meet targets (such as work set out in its business plan) should be considered on its own merit and should not necessarily lead to a more detailed review.

Question 5: If we implemented a system as described above, do you agree that there should be a presumption that the Authority should actively review all of the Standards at regular intervals? What do you think an appropriate timeframe would be?

Depending upon the interval between reviews, we would see this as a fair approach. The steps outlined at 3.15 are reasonable and we would support a 5 year timeline for the review of standards as a maximum period of time to lapse against a standard.

The Authority may want to consider the profession regulated, how quickly that particular sector changes, how frequently the regulator needs to respond to those changes and to allow time for the implementation of those changes, balanced against the need to consider the impact of those changes on public protection.

Question 6: Do you agree that we should introduce monitoring processes as described above? Do you have any comments on these suggestions?

We would not support the introduction of a monitoring process for the Authority. It is difficult to see how a monitoring process where the Authority has identified ‘major risks to public protection’ would work in practice and it is likely to be disproportionate and become overly burdensome on the regulators, therefore diverting their resources away from addressing performance improvement.

Question 7: Have we identified the right areas of our approach that we need to develop in this area? Is there anything else we should be considering?

Identifying risks to public protection and the impact of public confidence as a result of regulatory failure is a particular challenge, and the inquiries highlighted at 3.18 do not include failures in social care such as the Baby Peter Serious Case Review, or the report by Lord Laming following the death of Victoria Climbie. Ensuring that a performance review process is designed to identify risks that include failures in the regulatory system is also a challenge. Engaging effectively with stakeholders and widening the scope as a one-off engagement related to a particular performance review is likely to illicit limited feedback. This is largely due to the distance from day-to-day delivery. Perhaps a more ongoing approach could be developed that could feed into a performance review but would form an ongoing conversation with key stakeholders in relation to regulation and its impact. As noted above, profession specific risks are a central consideration and even the context within professions needs to be taken into account. For example, in Children and Family Statutory Social Work there is the strong presence of a systems regulator in Ofsted, whereas in Adult Social Work the Care Quality Commission (CQC) does not provide the same systems regulation presence.

We would support the introduction of thematic reviews but share the concerns of other regulators in terms of capacity and our ability to engage in such reviews.

We support a focus on outcomes and drawing out regulators to meet their overarching outcomes in public protection. There are different ways to achieve the same aim of public protection and will be dependent upon the regulated profession in question, the resources of the regulator, and as highlighted above, other regulatory partners in that sector, e.g., systems regulators.

Question 8: How could we best engage with stakeholders, to ensure that we are aware of key risks to public protection? Is there any other evidence that we should be seeking to inform our performance reviews?

We think the Authority needs to consider how it can develop a more effective way of engaging with the regulators. Regular, focused conversations may be more effective in determining key risks than datasets and narrative responses.

In the past, the Authority has carried out research with the public on issues like sexual misconduct and the duty of candour. These are helpful ways of gaining insight into the risks seen by the public. These insights can be useful to the regulators in identifying changes to their own approach and in addressing public protection issues. We see value in doing more of this type of engagement with the public.

Question 9: Should we retain the binary system or adopt a more nuanced approach?

We appreciate that a binary system is clear and easy to understand and bridges the diversity of the different regulators. We also appreciate that a broader system of options comes with its own issues. To have options such as ‘nearly met’ or ‘met in some areas’ could create ambiguity and confusion, or the implication that the Authority is tolerant, to some degree, of a regulator not meeting its standards.

However, we think a more nuanced approach could more accurately reflect a regulator’s performance overall and introduce a learning approach to continuous improvement. A binary approach suggests a destination that can be arrived at, at which point the only possible movement is backwards. The key element for a performance review process is to chart a journey of improvement and ongoing progression. It is difficult to define quality as an end point destination, particularly within the context of each regulator. We would support a move away from describing a standard as met or not met, as it is a blunt tool that drives behaviour that is more about passing the exam than it is about the value of learning and continuous improvement – it suggests an end point where none should exist.

Question 10: If we were to adopt a different approach, what alternative approach would you prefer and why?

It is difficult for us to comment at this stage on the merits of any particular system or assessment tool, as the key consideration is the approach taken to the performance review process and ultimately what the process is attempting to achieve. In this context, and as part of this review, it will be important to underpin the approach with an assessment and reporting tool that drives the behaviour desired of regulators by the Authority. We think the assessment tool that best delivers behaviour that has a focus on learning, ongoing development and supports a pathway towards best practice in regulation is the right assessment tool. One standard can cover many different aspects of a regulator’s activities, any new approach needs to be able to reflect the wide-ranging ways in which a regulator can demonstrate the standards.

Question 11: Would these changes support the regulators to learn from our work and that of other regulators, in order to better protect the public?

Yes, we think it should be part of the work of the Authority to support and articulate what good performance is, identify it and share it. Acknowledging and highlighting good practice supports the principles of right touch regulation and can be useful for the regulator in question and others, to look at how they might adapt their approach in future.

It should be clear though that any recommendations made by the Authority would need to be open enough to allow the regulator to take action within their own limits in terms of resource, in line with their own strategic vision and values, but balanced against the overarching objective.

Question 12: Do you think thematic reviews would assist us in our scrutiny of the regulators and enhance our public protection role?

Yes, thematic reviews are a way the Authority could gather information across the regulators to establish a clear overview of all our approaches. This would allow it to address previous concerns raised regarding proportionality and the differing contexts in which each regulator operates.

Though we support the need for cross-regulatory working, we acknowledge that these networks, forums and working groups already exist in a number of areas. We think the Authority should consider what involvement it should have in this area, whether their involvement could improve the current arrangements and how it might use its position to cast an overarching view over the regulators.

The Authority could consider how a regulator has responded to any learning they identified through the thematic review. This would be in line with Standard 4 (“The regulator reports on its performance and addresses concerns identified about it and considers the implications for it of findings of public inquiries and other relevant reports about healthcare regulatory issues.”).

Question 13: Please set out any impacts that the proposals set out in this paper would be likely to have on your organisation or considerations that we should take into account when assessing the impact of the proposals.

We are currently undergoing our first performance review and as such have a limited view of the potential impact of changes to the performance review process. Ultimately it is important that the process is proportionate and that both the Authority and the regulators have the capacity to engage in a process that brings considerable added value to public protection and is the most efficient and effective use of resources.

Question 14: Are there any aspects of these proposals that you feel could result in differential treatment of, or impact on, groups or individuals based on the characteristics as defined under the Equality Act 2010?

We believe in the power of collaboration and support the Authority’s intentions to extend collaboration beyond professional and system regulators to other relevant stakeholders. From our experience we understand the importance of considering engagement inclusive of everybody and paying particular attention to including those who may need support in contributing and participating fully.

I hope the Authority finds this feedback helpful.

Yours sincerely

Colum Conway

Chief Executive