Care Quality Commission enforcement – the Tribunal hands down an important judgment that champions proportionality when dealing with providers engaged in turnaround situations

At Ridouts we have dealt with a number of cancellation cases over the last year where there has been a refusal on the part of CQC to back down even though the services in question have improved to the point of being rated overall “good” on reinspection with no breaches of regulations identified. Typically, CQC justifies continuing with the enforcement action on the basis that the provider has not demonstrated sustainability in relation to compliance. CQC will argue that sustainability must be demonstrated over a number of months before enforcement can be lifted or that because of a lengthy history of non-compliance, a recent improvement in standards is not enough to justify compromising the case. In such circumstances, commissioners will be reluctant to place clients with those providers even though the standard of care is no longer an issue and there may be a need for their services given under-capacity issues locally.

Helpfully as far as providers are concerned, the First-tier Tribunal issued a judgement on 2 September 2015 which takes a refreshingly sensible and proportionate approach to CQC cancellation cases. In Wellbeing Care Ltd v CQC [2014] 2344.EA the Tribunal allowed the appeal where the provider had been found to be overall “requires improvement” on its most recent inspection visits in April and August 2015. CQC raised the issue of sustainability before the Tribunal but in response,  the Tribunal stated that “we accept that the home is no longer a failing home but one that certainly requires improvement and one that we are satisfied that there is sufficient evidence to suggest on balance can make that turn around in a short time.”

Hopefully this Tribunal judgement will lead CQC to reflect on how it approaches enforcement, most notably in relation to cancellation scenarios. In particular it is hoped that CQC will compromise cases in a timely fashion where providers have improved to the point where they are no longer rated as “inadequate” rather than persist with enforcement action on the basis of the sustainability argument.

One concern we do have at Ridouts is in relation to the special measures regime which appears to enshrine delay in the whole cancellation process. If a service is served with a notice of proposal to cancel the procedure under special measures is for a decision to be made following another inspection within six months. Historically a decision would be made within a month of receiving a provider’s written representations on a notice of proposal to cancel. Providers in such circumstances should press for a much quicker reinspection, which of course takes us back to the sustainability issue.

Applying the judgement in the Wellbeing case, providers can argue that having to show sustainability is not the right test and, additionally, that the length of any previous non-compliance is only one aspect that CQC should consider. In particular, CQC should be looking at current risk levels in the service. As the Tribunal in that case stated, “We must look at the current situation in light of the adverse history, looking at any improvement but applying a test of whether any of the service users are at risk of harm.”   The Tribunal felt that CQC might have placed the service at the “lower – medium “ level of risk had it not been for an extensive history of perceived non-compliance which then led to a high level risk scoring under its “Enforcement Decision Tree”.

The Tribunal also stated that a key issue was “the impact of closure upon the lives of service users and we do not find it proportionate at this stage [to confirm the cancellation]Instead the Tribunal felt that it could apply proportionality to the situation by imposing conditions on the registration.  In certain cases, providers might wish to consider suggesting conditions of registration as an alternative to cancellation or as a means of compromising ongoing cancellation proceedings.

The Wellbeing judgement is recent persuasive authority from the Tribunal which hopefully will lead to CQC reflecting on it stance on enforcement cases where demonstrable improvement has been shown but where more work may still be required. It also places an enhanced emphasis on the current risk profile of a service, rather than elevating a risk rating on the basis of the length of any previous non-compliance.

Providers can read the judgement on the Tribunal website at:

http://www.carestandardstribunal.gov.uk/Public/View.aspx?ID=1307

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