Home Legal CQC enforcement powers: urgent action under Section 31

CQC enforcement powers: urgent action under Section 31

by Kirsty Kirsty

Jenny Wilde, Lead Partner, Acuity Law

Since the pandemic there has been an increase in the level of enforcement action taken by the CQC. This can be linked to the CQC’s shift to risk-based regulation. There are different levels of enforcement action available to the CQC. The action can be on an urgent basis (which is used in the most serious of cases under Section 31 Health and Social Care Act 2008 aka “Section 31”) or using the more common “slow process”. This article focuses on the urgent action the CQC is able to take under Section 31.

Under Section 31, the CQC has the power to impose, remove or vary conditions of registration, with immediate effect.

Whilst it cannot be used to cancel an entire provider registration, Section 31 can have a similarly catastrophic impact if, for example, the variation of one of the conditions is the removal of one of the locations on a registration.

Why Section 31?

When deciding the level of enforcement action it will use against a provider, the CQC will reflect on its most recent findings and the perception of risk that those findings reveal. The legal test for taking urgent action under Section 31 is that the power will be exercised if the CQC has “reasonable” cause to believe that unless it takes the action any person “will or may be exposed to the risk of harm”.

This is a low bar.

There is no definition of “harm” in the Act, but it has been traditionally approached by the relevant courts to take into consideration the health, safety and welfare of service users and can include both physical or psychological harm.

How is a provider notified of a Section 31 Decision?

Unlike the “slow” version of CQC’s enforcement action, a provider will not be issued with a Notice of Proposal warning it that the regulator is considering taking action. Section 31 has an instant impact and the provider will be issued with a Decision detailing what changes have been made to its registration.

Sometimes, the CQC will issue a “letter of intent” in lieu of a Notice of Proposal – warning providers that it is about to this urgent action. These should be taken seriously.

Can I respond to a Section 31 Decision?

Given the urgent nature of this enforcement action there is no mechanism to submit any representations directly to the CQC. As the Decision is instantly adopted, the only way to challenge it is through the First Tier (Care Standards) Tribunal. This must be done within 28 days of the Decision being received.

This will bring a provider into formal legal proceedings.

If a provider does not appeal within the 28-day period then it will lose the right to appeal and the change to the registration will remain in place.

How can I succeed in an appeal against a Section 31 Decision?

When submitting an urgent appeal to the Tribunal a provider must be persuaded that there was not sufficient enough risk of harm present to justify the action taken. Where there has been risk, providers must be able to demonstrate that this has been remedied. Section 31 appeal hearings are complex. Providers should find a legal advisor that can work with them on both operational changes that are required as well as the preparation of their legal case.

Taking early legal advice when faced with a Section 31 appeal will enable providers to develop a strong strategy and prepare compelling and targeted evidence to present to the Tribunal.


Image depicts Jenny Wilde, Lead Partner, Acuity Law

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