Laura Hannah, Partner, Stephensons Solicitors LLP
The main purpose of many recruitment businesses in the care sector is to recruit the right individuals into a care setting. For many, this is where their role ends. However, it is becoming increasingly common for these types of businesses to take more of an active and ongoing role in that recruitment following the initial introduction of a carer to a client, whether that be a service provider or service user. It is this additional involvement which often triggers the registration requirement with the CQC and develops them into a service carrying out the regulated activity of personal care.
A regulated activity is an activity which involves, or is connected with, the provision of health or social care in, or in relation to, England. Section 8(3) of the Health and Social Care Act 2008 outlines that activities connected with the provision of health or social care include:
- the supply of staff who are to provide such care;
- the provision of transport or accommodation for those who require such care;
- the provision of advice in respect of such care.
The various regulated activities and the definitions of those activities are contained in Schedule 1 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. It is a criminal offence to carry out a regulated activity without being registered with the CQC under Section 10(1) of the Health and Social Care Act 2008. If found guilty of an offence under Section 10, the Court can impose an unlimited fine and/or a sentence of up to 12 months imprisonment.
The regulated activity of ‘personal care’ is defined in Schedule 1(1) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 as follows: “the provision of personal care for persons who, by reason of old age, illness or disability are unable to provide it for themselves, and which is provided in a place where those persons are living at the time the care is provided.”
There are a number of exemptions to this regulated activity and these are set out in Schedule 1(3). In particular, Schedule 1(3)(a) confirms that the supply of carers by an employment business to a service provider does not require registration with the CQC. However, this particular area of registration becomes quite complex when considering the exemption under Schedule 1(3)(b) and individuals and businesses often find it difficult to decipher whether they require CQC registration when this particular exemption appears to apply to their situation. This confirms that the CQC registration requirement for the regulated activity of ‘personal care’ does not apply to:
“the introduction of carers to an individual (other than a service provider) by a person (including an employment agency or an employment business) having no ongoing role in the direction or control of the service provided to that individual”
It is the latter part of this exemption which causes the most confusion and often finds individuals and businesses facing criminal enforcement or a prosecution by the CQC. This exemption is further set out in the CQC’s ‘The scope of registration’ document dated March 2015 at page 19. This states that: “You should not register if you provide carers (in the role of an employment or introductory agency): […] To an individual who will then wholly take responsibility for the provision of their own care under a personal budget or private arrangement.”
It is therefore vital that care recruitment agencies either have no further involvement following the introduction of a care worker to a client or where they do, that their involvement is restricted to the specific activities permitted by the legislation and associated guidance.
The consequences of failing to properly identify the correct registration position can be devastating, both financially and reputationally. It is therefore essential to establish the correct legal position in respect of any registration requirements for each particular set of circumstances and prior to setting up a business, such as a care recruitment agency. However, in the event of criminal enforcement action or a prosecution by the CQC, specialist legal advice should be sought as soon as possible in order to mitigate the potential impact of such action on the relevant individual(s) and business.