At Ridouts we are frequently seeing that the CQC is automatically adopting Notices of Proposal, seemingly ignoring, or not testing the validity of, the representations submitted by Providers. In some cases the CQC is sending out Notices of Decision months after the Notice of Proposal was issued and therefore months and months, in some cases up to a year, after the original inspection. In this article I explore the abuse of process which leaves Providers spending a considerable amount of time and resources defending irrelevant and out of date allegations through to the Care Standards First Tier Tribunal (‘Tribunal’) appeals process but explain why it is so important to still submit robust and thorough representations to the Notice of Proposal and every stage thereafter, in order to maximize all opportunities to preserve your business.
Where it all begins
In accordance with the Health and Social Care Act 2008 the CQC can impose conditions (s.12); cancel the registration (s.17) or suspend the registration (s.18) of regulated providers. In accordance with section 26 of the 2008 Act, the CQC must give notice of its intention to do so (Notice of Proposal) followed by notice of its decision (Notice of Decision).
The Provider has 28 days to submit representations against the Notice of Proposal (‘NOP’). These representations would detail improvements with the service and reasons why the Notice of Proposal should not be adopted. A robust set of representations would be accompanied by a bundle of evidence illustrating the improvements or in some cases challenging the allegation or correcting the position.
Despite the representations and evidence submitted the CQC are increasingly automatically adopting the NOP without conducting a re-inspection of the service to corroborate the submissions put forward by the Provider. The CQC then issues a Notice of Decision (‘NOD’), which, in order to challenge, requires the Provider to file an appeal with the Tribunal. At that stage the Provider would be challenging allegations and observations which are historical and the enforcement action being pursued by the CQC would be based on evidence which may no longer reflect the service.
Often the CQC disregards the representations against a NOP and as well as automatically issuing a NOD, the allegations within the NOD usually mirror those within the NOP resulting in the Provider, at the appeal stage repeating their initial challenges against the allegations. Having to go through formal legal proceeding by filing an appeal with the Tribunal to have one’s position heard and acknowledged, causes unnecessary stress on Providers and is time-consuming and costly.
What stands Providers in good stead is if a robust appeal application is submitted evidencing the robust representations that were submitted to the CQC. Providers must not underestimate the amount of work that goes into representations against a NOP and an appeal against a NOD. Each can involve a lengthy response to the concerns raised by the CQC, along with documentary evidence showing the current position of the service.
The next step after the filing of the appeal is the CQC is notified by the Tribunal of the appeal and has 20 working days (3 working days in an urgent cases) to formally respond. The Respondent (the CQC) considers the approach it will take, whether it will oppose or allow the appeal. Throughout the proceedings there will be a number of Case Management Hearings which take place by telephone. These are usually short hearings attended by the Tribunal Judge, and the Appellant’s (Provider’s) and Respondent’s (CQC’s) representatives. The first of these hearings will be to agree the timetable for the rest of the proceedings up to the Final Hearing.
Communication often takes place between solely the parties, the Appellant and the Respondent, which the Tribunal is not aware of at the time they take place. It is in this arena that negotiation often happens. Lawyers at Ridouts are well equipped to navigate this arena to achieve the best result for Providers. Ridouts are finding that in these types of cases through negotiation, action is settled before the Final Hearing. In fact, often the CQC seek to stay/suspend proceedings before they have even responded to the appeal application.
The stay is to give the CQC time to conduct an inspection, and if the inspection is positive and improvements detailed in the initial representations against the NOP are acknowledged, the proceedings are usually settled. Whilst this is a good result for the Provider – to avoid the case progressing to a Final Hearing, it is unreasonable and extremely unfair that the CQC fail to inspect upon receipt of the representations against the NOP to confirm the position before issuing a NOD. This consistent action by the CQC is a waste of public money and is putting additional strain on an already struggling sector.
The plus side
The burden is on the CQC to prove the facts on which they rely in establishing that the enforcement action should be carried out (conditions imposed, suspension, and cancellation). However, the Tribunal makes the decision afresh based on the state of the service at the time of the final hearing and is entitled to consider post-decision evidence. Therefore, the Provider has an opportunity to make positive changes and improvements in the service and to reflect them in the appeal submissions.
It is also the case that Providers need to be ready for a re-inspection. The CQC requesting a stay in proceedings in order to re-inspect provides the Provider with some notice that an inspection will be imminently taking place. However, the inspection date will be unannounced. That said, Providers should ideally be ready for an inspection as soon as representations against the NOP are submitted. Providers need to be ready to showcase the improvements it has declared in submissions.
If the case is not stayed and progresses there will be the exchange of witness statements, agreeing the hearing bundle, responding to CQC’s evidence and agreeing of the case summary. Each of these stages are an opportunity for the Provider to illustrate to the Tribunal that the service is not as described by the CQC in the NOP or NOD. Each stage is timetabled by the Tribunal Judge and deadlines must be met. The process often involves analysis of fine detail with masses of documentary evidence.
Whilst it may be hoped that the appeal never gets to a final hearing because the strength of the appeal lodged with supporting evidence persuades the CQC to stop the enforcement action, the Provider must be prepared for it to go all the way. As mentioned the Tribunal considers evidence presented by each side and makes a decision based on the current position of the service, taking into account the history of the service, whether enforcement action should take effect or not. It can take between 6 to 9 months from the launching of the appeal, for a non-urgent case to reach final hearing.
There is a knock on effect of the appeal process, which involves the CQC often sharing information with commissioners about proposed enforcement action, leading to commissioners taking their own action, such as placing embargoes on the service. This makes it all the more vital that Providers present a strong case against the CQC at the outset. Our lawyers are able to take a strategic approach in dealing with both the CQC and Commissioners simultaneously.
It is essential that Provider’s seek specialist legal advice as early as possible and not let an opportunity to fight for their business pass them by. Ridouts is alive to the severe financial consequences, as well as the devastating effect on staff and service users that CQC enforcement action can have. Our clients are able to concentrate on running their services during this period relying on their lawyers to manage proceedings, deadlines and strategy.