The admission by the Care Quality Commission (CQC) came after it made only a half-hearted attempt to investigate claims that a woman who was later jailed for abusing disabled people had been able to work for a care agency.
Susan Murphy worked for nearly a year for the A1 Medical and General care agency even though she had been suspended from her job as a nursing assistant at Doncaster’s Solar Centre, and should have been barred from all care work.
Murphy was suspended in 2008 after a whistleblower alleged that disabled service-users were being abused, but from 2009 to 2010 she found work with A1, which is based less than a mile from the day centre.
Murphy was eventually found guilty last year of 15 charges of ill-treating adults with learning difficulties and high support needs, and was jailed for two years and nine months, along with another former nursing assistant from the Solar Centre, James Hinds.
In the wake of the court case, in May 2013, Disability News Service (DNS) told CQC that Murphy had found paid employment for nearly a year with A1, which provides staff to the NHS, private hospitals, prisons and private and public sector care homes across Yorkshire.
The care watchdog eventually agreed to investigate, several weeks after the concerns were first raised by DNS.
Now, following the publication of a serious case review into the scandal, CQC has again appeared reluctant to answer concerns about Murphy’s work at A1.
It has finally confirmed that Murphy was working for the agency, but also that A1 does not itself have to be registered with CQC for most of its work, thanks to a loophole in care regulations.
This means that A1 – and other such agencies – can escape fines or other sanctions if they allow nurses and care workers who have been banned or suspended from the care industry to work with disabled people.
CQC said it was told last year that Murphy had supplied “adequate references” to A1 but that the agency claimed it “had not retained” a copy of the check it carried out with the Criminal Records Bureau (CRB).
CQC claims that its inspectors were unable to confirm with the Disclosure and Barring Service – which has now replaced CRB – that these checks were carried out because “as this part of the A1 service is not registered with the CQC we have no powers to follow this up”.
CQC has also admitted that, although A1 claimed it secured three references for Murphy, its inspectors have not confirmed this information in person with the agency, or seen the references.
And although A1 claims it has informed South Yorkshire police that Murphy may have secured the job through “deception”, CQC has made no attempt to confirm this, either.
South Yorkshire police has so far not been able to confirm to DNS whether it has investigated this alleged “deception”.
A CQC spokesman said: “When CQC raised concerns with A1 Medical and General following information provided by [DNS] in June 2013, A1 informed the police of those concerns.
“As [Murphy] did not work for the regulated part of A1 it is not within CQC’s powers to request information from the police, as we could if she worked for a regulated service.”
When asked if CQC believes the government should close the loophole that appears to allow agencies to use care workers who have been barred from such work, the spokesman said: “It is the Department of Health (DH) that has responsibility for setting the regulations and therefore decisions about whether to widen the scope of regulations to include additional service types are for DH.”
But when challenged on this answer, he eventually agreed that CQC “will raise this issue about scope of services and functions that are outside of regulation with DH through our normal channels”.
He also admitted that CQC had only checked the information with A1 by telephone and email, and made no attempt to check any of the documents or records in person.
DH this week refused to say whether it would close the loophole, or even if it recognised its existence.
A DH spokeswoman said in a statement: “Care providers are responsible for making sure the people they employ are fit to work, whether they are employed directly or via an agency.”
But Gary Bourlet, a leading self-advocate and co-development lead for People First England, said that Murphy’s ability to work when she should have been barred will make people with learning difficulties “think that nobody cares about them and feel unsafe”.
He said it would be impossible for people to be safe if there was still a gap in the law, and that CQC should have acted far more quickly.
He added: “People in care find it already difficult to speak up and complain about the service they are getting.
“People who abuse people with learning difficulties should be [found guilty of] a disability hate crime.”
And he said the law should make sure that people like Murphy “cannot work with people with other disabilities”.
Bourlet said CQC should be able to check if employers were sticking to the relevant regulations, and were employing highly-qualified staff who have been trained by disabled people.
“They should have the power to get people struck off [from working with disabled people] and they should support whistle-blowers. This would need to be supported by their nearest self-advocacy group.”
Sue Bott, director of policy and development for Disability Rights UK, said the loophole was “extraordinary” and “needs to be corrected”.
She said there were “still many questions to be answered” about how Murphy had been able to work for A1.
She added: “The problems with CQC inspections in the past are well known. They have often been confined to telephone enquiries which of course reveal very little.”
But she said CQC was “completely changing” its system of inspection from October, following a series of “full day co-production events involving professional groups, providers, statutory agencies, service users including experts by experience, and voluntary sector groups”.
She said: “Disability Rights UK has been involved throughout the process and I feel confident that the new inspection regime will be far more robust.”
John Pring’s expose of institutional abuse of people with learning difficulties at the Longcare residential homes, Longcare Survivors: The Biography of a Care Scandal, is available through the DNS website
21 August 2014