Challenging Warning Notices & Fixed Penalty Notices

Challenging Warning Notices & Fixed Penalty Notices

CQC can serve notices about previous failures to comply with legal requirements or about continuing non-compliance.

Warning Notices, and to a lesser degree Penalty Notices, are often the first formal enforcement
option used by CQC. Warning Notices must be issued before CQC can prosecute a provider for
failure to comply with the regulations, although this is due to change with the introduction of the
fundamental standards. In addition with the introduction of the single failure regime being introduced
under the Care Act 2014 if the CQC issues a warning notice on a NHS hospital provider which is not
complied with, the Commission must consider whether to require Monitor to appoint a trust special
administrator. Prosecutions can attract fines of up to £50,000 per offence.

Providers are given the opportunity to make representations about why a Warning Notice should
not be published. It is essential that providers challenge any Notices that they consider defective, either
because they are based on erroneous judgments or because the process was unfair or disproportionate.
CQC would likely rely on any failure to challenge the Notices as evidence that the provider acknowledges
the appropriateness of the Notices should CQC escalate enforcement.

CQC can issue Fixed Penalty Notices where a provider has failed, amongst other reasons, to comply
with relevant legislation. Each individual breach can attract a fine of up to £4000 which can soon add up.

Moreover, CQC has a power to publish information about Warning Notices that it uses routinely
whilst in respect of Penalty Notices, CQC has a duty to publish information once the fee has been paid.
Local press often report on stories generated by press releases by CQC on Warning Notices causing
reputational damage and low morale.

Services include:

  • Taking detailed instructions on the factual basis for the Notices;
  • If appropriate, challenge CQC on its judgments;
  • Challenge CQC if it acts unfairly or fails to follow its own Guidance;
  • Drafting representations to CQC about why Warning Notices should not be published;
  • Advise as the likelihood of a successful prosecution if a Fixed Penalty is not paid;
  • Where necessary, assist with reputational management.

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