On 9 October 2017, the Tribunal issued an important judgement overturning a decision of CQC to impose an urgent condition on a provider’s registration preventing admissions to a care home without the prior written agreement of the regulator.
In Clarendon Care Group v CQC  3125.EA-MoU, Ridouts acted for the provider with one of its Senior Solicitors, Errol Archer presenting the case before the Tribunal.
The Tribunal disagreed with CQC’s decision that the factual examples upon which it relied evidenced an extreme level of risk, which under CQC’s Enforcement decision tree would justify urgent enforcement action that would have immediate binding effect on the provider. Instead, the Tribunal categorised the concerns as either low risk which would support a Requirement Notice (basically an action in an inspection report) or medium risk which would typically lead to no more than a section 29 Warning Notice or the slow imposition or variation of a condition (the latter allowing for protracted challenge, potentially up to the Tribunal, during which the condition would have no binding effect.
At Ridouts we come across many instances where CQC assesses the facts and evidence in a disproportionate manner, leading to unfair ratings and excessive enforcement action. The case of Clarendon Care is a salutary reminder to CQC that it can be held to account by the Tribunal for its civil enforcement decisions when the matter is appealed and brought before it.
In Clarendon Care, the provider was able to demonstrate evidence of improvements through a Risk Reduction Plan and Quality Audit Improvement Plan while acknowledging that it would take a period of time to fully achieve. However, the Tribunal was concerned that the CQC inspectors “refused to answer the question” as to whether it would allay their concerns if these changes had been put in place.
The inspectors “continued to say that there was no evidence that the changes had been made and that they would want a further period of time to make sure that the changes were embedded in the system.” This is the usual sustainability argument that CQC falls back on when trying to justify delays in lifting enforcement action. The Tribunal was not impressed, particularly as CQC had not re-inspected the home prior to the hearing. Instead the inspectors stuck to the CQC official line that they would inspect within six months of publication of the report which had only happened the day before the hearing.
The problem with national regulation is that a fixation on process can override professional judgement, objectivity and commonsense. While the Tribunal did not doubt the integrity of the inspectors, it was concerned that “they did not appear to be prepared to consider explanations that were given to them about their concerns, at the inspection. They were reluctant to accept documents that evidenced that change and improvements were in progress, but would take a period of time to achieve.”
The Tribunal also accepted the provider’s evidence that “…in practice, while the condition is in place, the local authority will not place residents in the home.” This reflects the reality of things on the ground. Commissioners are wary to place in a service where CQC has placed a bar on admissions without its permission.
Unanimously the Tribunal allowed the appeal on the basis that it did not agree with CQC’s analysis of risk or with the proportionality of the condition.
This case emphasises the importance of providers who are subject to urgent action of this nature challenging the decision by way of appeal where issues of risk and proportionality are in question. The alternative is to have an unjustified bar on admissions slowly stifling a business to the point where viability may be compromised. Providers should be emboldened by this decision – the Tribunal has shown that it is independent and willing to overturn CQC’s decisions where it considers they are unmerited.
The full decision will be publicly available on the Tribunal website