Response to PSA consultation on its approach to performance review

17 December 2021

Dear Alan,

Re: Professional Standards Authority consultation on its approach to performance review

We welcome the opportunity to comment on the Professional Standards Authority’s approach to performance review.

We support the principles of the proposed changes but ask the Authority to ensure that any changes do not increase the regulatory burden on the regulators. We also note that the success of the proposed changes will be dependent on the quality of our ongoing relationship, as well as the process that underpins it. To this end, we hope this feedback is helpful and informative to your programme of review.

Consultation feedback

Question 1: Do you agree with our assumptions? Please provide reasons for your answer.

We agree with the Authority’s assumptions in developing its approach to performance review but have some additional observations and questions.

In section 1.6 of the consultation document, the Authority states it will aim to publish its reports sooner than it does now. We think it would be helpful for the Authority to make clear in its assumptions that it intends to ensure that reports are published as close to the end of the review period as possible in any new arrangements.

In section 2.1 of the consultation document, the Authority states that “periodic reviews should be similar in intensity to a current annual review. The overall burden of a full cycle should be less burdensome on the regulators than the current equivalent period, though individual regulators may receive greater scrutiny than others on the basis of risk.” It is unclear what this risk relates to. Would a regulator receive greater scrutiny if the profession(s) it regulates present(s) more risk, or would it be based on risk related to the performance of a regulator and/or changes within the profession it regulates?

We’d welcome assurance on how the Authority plans to mitigate the risk of the changes increasing any regulatory burden on the regulators.

Question 2: Do you agree with our proposed approach to periodic reviews? Are there areas that should be looked at as part of every periodic review. Please provide reasons for your answer.

Overall, we agree with the Authority’s proposed approach, and whilst we think it would be useful to share information with the Authority throughout the year, we would need to be clear about boundaries in sharing information. For example, we would need to be clear that any data shared was compliant with GDPR, or would not prevent us from carrying out our work efficiently and effectively. We would also want to be clear with the Authority about sharing our policy thinking in its early stages, where such thinking may not lead to changes to our approach or activities.

We also don’t think that there should be areas that are automatically looked at as part of every periodic review, as we believe that this goes against the purpose of the approach, which should be intelligence-led. However, if it were decided that some areas would be looked at as part of each review, we would suggest that they should be limited to key areas of public protection.

We would also welcome further clarity on the standards, what it means to ‘meet’ or ‘not meet’ them and a clearer definition of the weighting the Authority gives to aspects of determining whether a standard has been met.

Question 3: Do you think the areas we will look at to form our evidence base are appropriate? Are there any other areas we should explore to enhance the evidence we collect? Please provide reasons for your answer.

We agree with the ways in which the Authority is looking to form its evidence base, but there are some practical considerations to some of the proposals that are not set out in the consultation document.

For example, education providers may potentially have concerns about the Authority observing education quality assurance inspections, including any potential effect on the outcome of those inspections, what information the Authority intends to collect and how it intends to use it. It would be helpful to understand more about the Authority’s views on these matters, and what data protection-related considerations would need to be taken into account. This includes how the Authority might provide information to education providers about its use of any information, including personal data, coming into its possession directly.

We’d also like to be clear on how the Authority’s activities will enable them to assess performance against the standards of good regulation and how this will be pursued in a way that doesn’t confer additional burden on the regulators.

Question 4: Do you agree with our proposed approach to monitoring performance in the years between periodic reviews? Please provide reasons for your answer.

We agree with the proposal to implement a monitoring process in the years between the periodic review. However, it would be helpful to know more about what thresholds the Authority intends to apply, and the rationale and application of these thresholds to determine the level of monitoring the Authority intends to carry out.

We would like to know what the Authority defines as a ‘major’ or ‘significant’ change and how these are calibrated across different regulators. What might be a major or significant change for one regulator might not be for another. Or one regulator may have more advanced corporate knowledge to manage the change and any risks it might present, which would affect the risk which such a change presented.

We manage major changes through internal governance arrangements and through our executive leadership, audit and risk committee and our board. Our reporting on these changes is made available through our board papers. It would be helpful to understand where the proposed activity around major change links to the standards of good regulation. Is this, for example, resulting from a concern that information about changes is not shared sufficiently with boards, and as a result this may connect to standard 2?

Question 5: Do you think we have identified the right factors to consider when determining the length of review cycle? Please provide reasons for your answer.

No comment.

Question 6: Do you agree that a three-year cycle would be appropriate? Please provide reasons for your answer.

3 years feels appropriate with the Authority reporting on the outcome of its monitoring work each year. We think it would give the public, and our board, appropriate levels of assurance. We would encourage the Authority to provide monitoring activity results in a timely manner, so we are best placed to act on feedback.

In terms of the timing of the periodic review, we think it should be linked to the strategic cycles of the regulators. This would ensure the review is be linked to the delivery of the strategic/corporate plan, which would provide more of a strategic driver for the review of performance against strategic, rather than day to day, operations.

Question 7: Do you agree that these are the right factors for us to consider when deciding the areas we look at during periodic reviews? Are there any that you would like to see added, removed or amended?

We think the factors seem appropriate. As with our response to question 4, it would be helpful to understand more about the thresholds and decisions the Authority makes to ensure that regulators and the public can have confidence that the process is being applied correctly and consistently.

We would also like to see transparency around decision-making for determining the scope of a periodic review, with clear rationale and reference to the evidence framework that underpins the standards of good regulation. This would help us understand the Authority’s perceived risk to public protection, which would in turn help us to respond to the review and better meet our own obligations in this area. We also note the importance of ongoing engagement and communication to support the Authority with “any gaps in understanding of how a regulator is performing.”

Question 8: Do you agree that these are the right factors for us to consider when deciding to look in more depth at particular areas outside of periodic reviews? Are there any that you would like to see added, removed or amended?

We think the factors seem appropriate. However, it would be helpful to know if a request by a regulator to review a standard that is not currently met would always be acted upon.
We note that the monitoring activity the Authority describes in figure 1 of the consultation document is limited and may not give the Authority the information it might need to assure itself that a standard previously not met, is now met.

We think a regulator should be able to request the review of particular standards where they were previously assessed to be ‘not met’ during monitoring reviews. This would ensure that Parliament and the public are given an accurate account of a regulator’s performance for that year.

Question 9: Do you agree that the factors for bringing forward a regulator’s periodic review should be similar to those for undertaking reviews out of cycle? Do you think this is an appropriate threshold? Are there any that you would like to see added, removed or amended?

We think the factors seem appropriate, though we would find it helpful to understand more about the Authority’s proposed decision-making process to bring forward a review. As with our comment above, we would like to understand the rationale for determining the scope of a review to help us understand the Authority’s perceived risk to public protection.

Question 10: Do you agree that these are the right factors for determining the order for regulators in the cycle? Are there any that you would like to see added, removed or amended?

We agree with the need to determine an order for the regulators in the cycle. However, we have some questions about some of the proposed criteria for determining the order. For example, does ‘size of regulator’ refer to the number of registrants/registered premises, or the resources available to the regulator?

All the health and social care regulators have largely the same functions and are assessed against the same standards. We would suggest that the decision on the cycle order should be based on public protection risks, a regulator’s strategic planning cycle and the length of time since the last review was undertaken.

It would also be helpful understand more about how the Authority will work with regulators to ensure that the interaction and engagement points are fit for purpose. For example, does the Authority intend to consider other regulatory commitments and functions, such as a regulator’s renewal cycle? Social Work England has an annual renewal cycle. As such, much of our resources are taken up during the renewal cycle every year (September to November).

Question 11: 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.

Without more information on what increased communication or interactions will mean, it’s difficult to know what impact it will have on resources, whether extra resources will be needed, and whether the increased engagement justifies the resourcing costs.

Operationally, there will be implications for ongoing engagement with the Authority throughout the year. We would need the Authority to work with us on scheduling this in advance, as far as possible. The Authority should also be mindful of points throughout the year when asking for information or formal questions may conflict with our ongoing activity.

Question 12: 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?

The methodology the Authority employs to ensure it seeks a breadth of feedback through its approach to stakeholder engagement is crucial to ensuring it doesn’t impose inappropriate barriers for individuals with certain protected characteristics, especially where these individuals are patients, service users and people with lived experience of social work. However, we think the Authority is best placed to understand the potential impacts and how to mitigate them.

Throughout our work we are open and honest about what we’re doing and how we’re doing it, and we support the Authority’s intentions to develop a review process that is more targeted and proportionate, based on trust and cooperation. We understand the value of collaboration and support the extension of that collaboration beyond professional and system regulators to other relevant stakeholders.

I hope the Authority finds this feedback helpful.

Yours sincerely

Colum Conway
Chief Executive