Home Legal Take Notice! If the CQC proposes, you do not need to accept

Take Notice! If the CQC proposes, you do not need to accept

by Kirsty Kirsty

Jenny Wilde, Partner at Acuity Law, discusses the evolving landscape of Care Quality Commission enforcement actions and their impact on care providers, focusing on the “slow process”,

.In recent years there has been a notable increase in the level of enforcement action taken by the Care Quality Commission (“CQC”). This can be directly linked to the CQC’s shift to risk-based regulation. There are a number of levels of enforcement action available to the CQC. The action can be executed on an urgent basis (which is used in the most serious of cases under Section 31 Health and Social Care Act 2008) or using the more common “slow” process. This article will focus solely on enforcement action taken on the “slow process”.

Under the “slow process” of enforcement action the CQC will issue to the provider a “Notice of Proposal” letter. This will indicate that the regulator intends to take steps to cancel a registration, remove a location from a registration or vary the conditions of a registration in some other way.

At this stage the provider needs to understand that the action described in the correspondence is simply a proposal and that no action has yet been taken (unlike in Section 31 cases where a decision will take immediate effect). The letter will set out information on which the CQC seeks to rely to justify the action that it wishes to take. This is likely to be an account of a recent inspection where concerns have been found.

Providers should spend time reflecting on the contents of the Notice of Proposal and establishing their position in relation to what the CQC are alleging. Providers will note at the end of the Notice of Proposal that the CQC gives them 28 days to make a response to the correspondence. If, at the end of that 28-day period, no response is submitted, the Notice of Proposal will automatically convert to being a Decision and it will take immediate effect. This essentially means that the proposed action is executed and the only way that the provider can appeal that Decision is through the First Tier (Care Standards) Tribunal.

As such, it is absolutely critical that robust representations are submitted within this timeframe, whether a provider agrees with the contents of the Notice of Proposal or not.

Given the very high stakes of the enforcement action (e.g. the continuation of the business’ registration), it is crucial to take detailed and expert advice on how to robustly and effectively convey your position.

It is important for providers to understand that if the enforcement action did proceed to the aforementioned Tribunal then the panel considering the case would be largely concerned with the position of the service as it is on the day of the hearing, rather than what it was at the time of inspection on which the CQC relies as its main body of evidence. At the time of writing, Tribunals are being heard around 6-9 months after an appeal is lodged, meaning the position could be completely different to how the service was perceived by the CQC at the offending inspection. As such, if the provider accepts that there were deficiencies in its service then it can produce a response to the Notice of Proposal demonstrating the action that it has taken and will take to remedy the issues. This could be enough to persuade the CQC not to adopt the Notice of Proposal or if the regulator decides to adopt the Notice of Proposal in any event, it will show the Tribunal that the provider was proactive in making changes quickly.

Essentially, in its response to the Notice of Proposal, the provider is attempting to persuade the CQC that it is neither reasonable nor proportionate to take this serious enforcement action.

After considering the representations, the CQC will serve a Notice of Decision, which will either confirm that no further action will be taken in respect of the action or uphold its proposal to cancel or amend the registration (which essentially means that the representations have been rejected). 

In the event that Notice of Proposal is adopted and a Decision to take the intended action issued, this is still not the end of the road for the provider.

At this point, the process moves away from the CQC and the provider has the option to appeal to the Tribunal, independent to the regulator. The provider has 28 days from the date of the Decision to submit such an appeal. If no appeal is submitted by the provider, then the action cited in the Decision takes effect on the 29th day and the registration will either end or be amended as per the Decision. However, if an appeal is submitted to the Tribunal within the set period, the registration will continue as normal until a Tribunal orders otherwise.  This illustrates how important it is to put in representations at every possible stage. The business can carry on as usual during this period and every day that passes where the service improves will be useful evidence to the Tribunal in making the Decision more remote and historical in its relevance.

In my experience, most appeals do not make it to a final hearing. During the aforementioned 6–9-month period and through the appeal documents and witness statements, the provider can illustrate the changes that have been made and implore the CQC to return to inspect to avoid the final hearing. This is done on the basis that the CQC’s action is no longer necessary because the position of the service has changed so drastically. In most cases where improvements are significant and sustained (and verified through a CQC inspection), the regulator will withdraw its opposition to an appeal and the action falls away. This negotiation must be done with caution and under the advice of a legal representative who can assist with building arguments and help to guide a provider on what the most compelling evidence looks like.

On many occasions I have been contacted by providers who have missed the opportunity to respond to a Notice of Proposal, not understanding what it meant or how important it was to put their position forward.

In those cases, they enter straight into the appeals process and can still take their opportunity to put their case forward -however, this is now through formal legal proceedings rather than in representations to the CQC.

If providers are faced with this type of enforcement action then they should treat it with the utmost seriousness. I have seen providers’ own attempts at responding to proposals which simply haven’t done enough to convince the CQC that the action isn’t warranted. Responses need to be comprehensive and supported by evidence. Registrations and therefore businesses are at risk and if costly and time-consuming appeals can be avoided then more resource can be directed to making necessary improvements (where needed).

If the basis on which the enforcement action is being taken is not accurate, then this can also be challenged through the representation stage and relevant evidence provided to the CQC to counter the assertions. A provider’s true position should be reflected at every given opportunity or it will be assumed that the provider is in agreement with whatever position the CQC is putting forward. This will become more relevant when the service users, stakeholders and press become aware of the action that is being taken by the CQC.

Being reflective, proactive and detailed is hugely beneficial in these types of proceedings. The most important message that providers should take from this article is that engagement at the earliest opportunity is vital and investment in detailed representations will go a long way to limiting more averting a final hearing where a registration hangs in the balance.

For any advice on this or any other type of CQC enforcement action, contact Jenny Wilde on 07581 063602 or by email at Jenny.Wilde@acuitylaw.com



Image depicts Jenny Wilde, Partner at Acuity Law

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