A little known CQC enforcement power with devastating consequences for providers

Single registration, enabling a provider to be registered in relation to multiple services, was trumpeted as a more proportionate and sensible way of regulating the sector when the Health and Social Care Bill (now Act) was passing through Parliament. However, providers who fall into this category are at considerable risk of a new form urgent enforcement action which CQC has started to deploy under section 31 of the Health and Social Care Act 2008. CQC can serve a Notice of Decision on a registered person imposing, varying or removing a condition of registration on an urgent basis which will take effect immediately.  CQC can deploy the power whenever it has reasonable cause to believe that any person will or may be exposed to risk of harm in a service.  Sounds innocuous enough so why the concern at Ridouts?

Our anxiety derives from CQC being able to remove a location (expressed as a condition of registration) from the registration with immediate effect by simply serving a Notice of Decision on the provider. The effect of the Notice will be to close the service as it will be unlawful to carry it on once the condition is removed.  The provider has no statutory means of challenging or appealing the decision until after it has taken effect. There is a right of appeal to the First-tier Tribunal which will be fast tracked, meaning the hearing should come on within a matter of a few weeks but by that stage all the service users will have left the service and the provider may not have the resources to challenge the decision.

In contrast, if a provider runs a single service under their registration the only way that CQC can cancel that registration is by making an urgent application to a magistrate under section 30 of the 2008 Act. The statutory test is that if the order is not made to cancel the registration there will be a serious risk to a person’s life, health or well-being. Ordinarily, the provider will be notified of the application and will be able to attend the magistrates’ court and contest the application, with or without legal representation.

The first thing to note is that the test of serious risk under section 30 is higher than the one under section 31 which only requires CQC to have reasonable cause to believe a person will or may be exposed to the risk of harm.  Why might this be the case? Our view at Ridouts is that section 31 was never intended to have the effect of cancelling a service. That is because conditions of registration are only meant to be restrictions on a registration e.g. a cap on numbers in a care home, or, alternatively, a means of setting actions to be taken by a provider to bring them into compliance with statutory requirements. A condition of registration is not intended to have the effect of closing an entire service down.  However, CQC is faced with a real difficulty in regulating the multi-site provider in circumstances where, say, one service falling under the registration is deemed to be failing to the point where it needs to be shut, yet the other services are running to an acceptable standard. CQC cannot apply to a magistrate for an order cancelling the entire registration as that would be disproportionate. All CQC can do is serve a Notice under section 31 removing the location which is deemed to be failing from the registration.

The first reported instance of CQC using this power to remove a location from a registration came out in a press release on 12 August 2011 in relation to a care provider in Kent with 6 homes. The press release states that in June 2011 served a Notice of Decision under section 31 of the Health and Social Care Act 2008, adding “this means that that this location is no longer registered to care for people and by law cannot continue as a care home.”

It remains to be seen how often CQC uses this power. What is clear is that CQC will have to be very careful how they exercise it given the draconian consequences for the provider, staff and the residents.  In practice, CQC should only be exercising this power in the most serious cases and that appears to be confirmed by the CQC Enforcement Policy which talks of its use “whenever it believes that service users will or may be exposed to unnecessary and serious harm to their safety and welfare if CQC does not act immediately.”

The concern from a human rights point of view is that a provider has no statutory opportunity to challenge the decision to remove a location from a registration in a legal setting before it takes effect.  That must make such a decision vulnerable to challenge in the courts as it is difficult to see how the power is compatible with the Human Rights Act.

On a practical level, it will be important for multi-site providers to develop their risk management strategies to take into account the existence and use of this new enforcement power. It should not be left until something goes wrong as CQC may not give any warning before service of the Notice. Specialist legal advice will assist in developing strategies to manage and reduce the risk of this power being exercised by CQC.  In circumstances where such a Notice is served on a provider, urgent legal advice will be required to consider the possibility of a judicial review application to the High Court to stay the effect of the Notice. Ridouts would be delighted to help providers in responding to this new challenge.

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