Caring Times – Fixed Penalty Notices – To pay or not to pay CQC? That is the question

Adult social care providers are required to have a registered manager. It is a condition of their registration with CQC under section 33 of the Health and Social Care Act 2008. A breach of this condition without reasonable excuse can lead to a provider being prosecuted, the sanction being a fine which is unlimited. As an alternative to prosecution, CQC can issue a Fixed Penalty Notice (FPN) offering the provider the opportunity to buy off the offence up to that point by paying £4,000.  It is little wonder that most providers get their cheque book out at this point rather than face the risk of a day in the local Magistrates’ Court.

Providers may recall that back in 2014, CQC went on the offensive, issuing a large number of FPNs for alleged breaches of the registered manager condition.  Now in 2017, we are noticing a renewed effort on CQC’s part to tackle the registered manager issue via FPNs, or the threat of the same, but often in a blunt and ill-considered manner.

Several of our clients have received letters headed in capitals, “IMPORTANT CONCERNS CRIMINAL OFFENCE”.  On closer scrutiny, all CQC is saying in these letters is that it suspects an offence may be being committed and requests that the provider give an explanation of what steps, if any, it has taken to recruit a registered manager. In the cases we are seeing there is normally a perfectly reasonable excuse. Active efforts have been taken to recruit a new manager but it can take time to get the right one bearing in mind notice periods and, in some cases, relocation.

We are seeing cases where CQC is issuing letters even though the new manager has started at the service and has submitted an application for registration to CQC. One problem is the time it can take to obtain registration. If there is even the smallest error or omission in an application it is returned with a request for a new one to be submitted. Why on earth the original application cannot simply be amended is evidently beyond the intellectual capacity of a simple lawyer like myself.

Providers in receipt of the above letters are then required to respond on a form entitled “FPN Response Form” even though CQC at that stage has not even issued a FPN. It is misleading and understandably puts providers on the defensive.

In certain cases, CQC is issuing not only a letter threatening a FPN in relation to the absence of a registered manager but also one in respect of an alleged failure to notify CQC of changes in management pursuant to Regulation 15 of the Registration Regulations. In relation to the latter, the provider can buy off the risk of prosecution by paying £1250 to CQC. We are coming across situations where providers have notified CQC of the change in mangement but not on the form that CQC demands. However, Regulation 15 only requires CQC to be notified of a change in manager not that a particular form be used.

So what should providers do?

First, they should ensure that an evidence file is kept of all steps taken to recruit a new manager and keep CQC appraised of developments.

Secondly, where they do receive a letter threatening a FPN (or they receive a FPN proper) they should seek legal advice to determine if they have a reasonable excuse for not having a registered manager in place. Importantly, it should be remembered that it is for CQC to prove that any excuse put forward is not a reasonable one on the balance of probabilities.

Finally, as far as notifications are concerned, providers should keep a record of how and when a change of mangement was notified to CQC. It makes sense however to use the right CQC notification form to avoid the threat of an FPN coming out as a purely bureaucratic exercise.

More fundamentally, it is diasppointing that CQC is reverting to sending letters out of this nature. Back in 2014, CQC issued guidance which advised inspectors to first pick up the telephone and speak to provider about the issue. Surely, dialogue rather than regulation by officious letter is the better course of action in the first instance?  CQC says it is committed to greater collaboration with providers.  In delivering on this pledge, this area of regulation would be a good place to start.

 

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