In our December 2011 edition of the Ridout Report, we raised concerns about CQC’s powers under section 31 of the Health and Social Care Act 2008 (‘the Act’), particularly in relation to providers operating services at more than one location. Section 31 effectively makes it easier for CQC to close down a service if the provider is operating at multiple locations than if it is only operating at one location. This is not only unfair on multi-location providers but may even be wrong in law.
If CQC want to close down a single-location provider, they have to apply to a justice of the peace under section 30 of the Act, requesting an order to cancel the registration of a person as a service provider. The magistrate will only agree to CQC’s application if it appears to them that ‘unless the order is made, there will be a serious risk to a person’s life, health or well-being.’ Moreover, the provider or their legal representative will usually have the opportunity to make representations to the magistrate to challenge CQC’s application. This is clearly hugely advantageous because in some cases this challenge may be successful.
In contrast, where a provider is registered with CQC as operating at a number of different locations, and CQC have serious concerns about the way in which the provider is operating at one of its locations, there will be no application to a magistrate. Instead, CQC can effectively close a home down immediately by serving a notice under section 31. Section 31 enables CQC 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. Whilst a provider has 28 days to appeal this Notice of Decision under section 32, they will have no opportunity to make oral submissions before a magistrate to try and challenge CQC’s application before the decision comes into effect. Moreover, under section 31, CQC only need to demonstrate that they have ‘reasonable cause to believe’ that unless they act in this way a person ‘will or may be exposed to a risk of harm.’ This appears to be a lower test than that under section 30, although in practice, CQC’s Enforcement Policy makes it clear that it will only use section 31 where it believes service users ‘will or may be exposed to unnecessary and serious harm to their safety if CQC does not act immediately.’
However, we have seen more cases recently of CQC using their section 31 powers to try and stop multi-location providers operating at a particular location. The fact that this is also happening during a time when CQC are also carrying out more out-of-hours and weekend inspections makes multi-location providers particularly vulnerable. Moreover, although appeals under section 31 can be expedited, it is still likely to be several weeks before an appeal will get listed. A huge amount of financial and reputational damage may already have been sustained by this point. It may be that CQC will try and use their section 31 powers in this way even more once their ‘Fundamental Standards’ have been published, if they think they can demonstrate that a ‘fundamental standard’ has been breached.
This will become clearer in the months ahead. What is already clear now is that if you are served with a section 31 notice you should take legal advice straight away. Indeed if you are threatened with any enforcement action you should be pro-active and take legal advice at this stage, in order to try and prevent it escalating this far. We believe that section 31 may be incompatible with the European Convention on Human Rights because in the circumstances described in this article, a multi-location provider faced with such a notice has no opportunity to challenge the decision in a legal context before that decision takes effect. There may thus be scope for us to take urgent steps to challenge a case like this by way of judicial review through an application to the High Court to stay the effect of the Notice. Ridouts are happy to help if you find yourself in this difficult position.