In recent times, we have noticed that the CQC’s responses to warning notice representations have become very light touch. Reasoned responses to Provider’s detailed submissions and evidence have been replaced with blanket responses which simply specify whether the representations are being upheld or not with no reasons provided, alongside any associated decision on whether to publish the warning notice.
This is concerning for a number of reasons, not least owing to the expectation on public authorities to give reasoned decisions as a matter of procedural fairness. Providers are entitled to know why their submissions and evidence have not been accepted.
Whilst it is not yet clear if this cursory approach to responses to representations is to become the norm, it should not put Providers off providing robust representations to warning notices. This article looks at why and how to respond.
What is a Warning Notice?
Warning notices are issued by CQC for failure to comply with a legal requirement. CQC can issue a warning notice for a current breach of a legal requirement or for a past breach which has been rectified, if it considers the past breach was serious enough.
Why should a Provider respond?
Whilst at first glance a warning notice is perhaps not as concerning for a Provider than say a Notice of Proposal, this more low-level enforcement action can quickly escalate to the CQC taking more serious enforcement action. Warning notices should therefore not be ignored and submitting representations is almost always a sensible approach. This is especially so since the CQC has removed fixed timeframes for re-inspection from the Provider Handbook meaning that Providers have no information about when they can expect to be re-inspected to set the record straight and demonstrate compliance.
The CQC will rely on any failure to challenge a warning notice as evidence that the service acknowledges the appropriateness of it. This could lead to more serious enforcement problems and/ or to inaccurate conclusions about breaches of regulations appearing in inspection reports. It is worth remembering that in terms of inspection reports and ratings, CQC’s Guidance provides, as a rating limiter, that the overall rating for a service cannot be better than requires improvement if there is a breach of regulations. Therefore, if you can dispute an alleged breach at the warning notice stage you should. Often the first opportunity to respond to an alleged breach is to provide representations to a warning notice as these are often issued before a draft inspection report.
What should a Warning Notice look like?
A warning notice must be issued by CQC in writing. It must state: the relevant legal requirement that the registered person is not complying with; how the registered person did not comply; and the timescale within which the CQC expects the registered person to become complaint. A provider has 10 working days to provide representations about the appropriateness of the warning notice.
There is no legally-set timescale for complying with a warning notice and the CQC can set any period which it considers reasonable. In accordance with their guidance, that period must reflect the degree of risk to the safety and welfare of people who use the service and must be a realistic and achievable timeframe. Please note the timeframe to comply with the warning notice and the deadline to submit representations to the Notice are two separate things and often fall on different dates.
Who will know I have received a Warning Notice?
The CQC must send a copy of any warning notice that it issues to relevant external bodies, such as commissioners, in line with section 39 of the Health and Social Care Act 2008.
The CQC may, and frequently does, decide to publish warning notices more widely either in press releases and/ or in inspection reports which can lead to an incorrect narrative about your service being placed in the public domain and even adverse press coverage. For these reasons a robust response is important.
What representations can I make to a Warning Notice?
The CQC’s powers to issue, and publish, warning notices are discretionary. Although there is no statutory right of appeal against a warning notice registered persons can make representations about it which can include that:
- the notice contains a serious error;
- is based on inaccurate ‘facts’;
- has not been issued in accordance with the legal test;
- makes requirements that are not reasonable or proportionate; and/or
- it would be unfair to publish it.
Thinking about the CQC’s current monitoring approach and approach to inspections, it is easy to see how errors and inaccurate conclusions could arise. This could be because the conclusions have been reached following a monitoring review that has taken place without a comprehensive inspection taking place or because part of the inspection has been carried out purely by reviewing documentation, perhaps offsite, without the same opportunity for the Provider to supply the context and corroboration that could be provided during an on- site inspection visit.
What if we don’t dispute the facts?
Even if you do not dispute the facts in a warning notice it is still possible to make representations as to why it should not be published, for example, because it is not in the public interest or because it relates to a historic breach that has already been rectified.
Representations must be made in writing, within 10 working days of receipt of the notice.
How can CQC respond to representations?
There is no statutory timeframe for the CQC to respond to representations about warning notices, but its current published guidance states that the CQC aim to respond within 20 working days of receiving any representations.
This same guidance states that the CQC: “will always send a letter to the registered person who has made written representations to let them know our decision and explain the next steps.” Therefore, the CQC should always respond to your representations in writing and we would argue that the CQC should also always provide reasons for its decision. However, as set out above this does not always appear to be happening at present.
Once your representations have been reviewed, the CQC can decide either: not to uphold the representations or to uphold them. In accordance with its guidance there is no decision to partially uphold representations. If they are upheld then the outcome letter should formally record that the warning notice has been withdrawn.
The CQC can also withdraw an initial warning notice if it contains an error however, if CQC decides that it is still appropriate to issue a notice it can go on to issue another warning notice.
Once the decision as to whether the representations are upheld or not is reached the CQC will then decide whether to publish the notice.
If the CQC withdraws a warning notice, it will not publish the details of it and will inform any relevant external bodies who have been informed of the notice that it has been withdrawn.
If you have concerns about a Warning Notice
Ridouts regularly assist Providers to prepare robust representations to warning notices. This can lead to the notices being withdrawn and/or not published more widely.
If you have received a warning notice, contact Ridouts on 0207 317 0340, who can explain your available options.
