Since November last year CQC has been issuing fixed penalty notices to providers who have been without a registered manager for more than six months. We have obtained figures from CQC that reveal the following breakdown:
· 2 fixed penalty notices in November 2013;
· 79 in December 2013; and
· 47 in January 2014 (up to 15 January).
No period of grace was given to providers by CQC in introducing this crackdown and it has come as a surprise to the sector. At £4,000 each, the above 128 fixed penalty notices will generate an income of over £500,000 assuming they are all paid.
Under the Freedom of Information Act, we have obtained CQC’s original internal guidance for inspectors on dealing with breaches of the registered manager’s condition. It emphasises the need to look at the individual circumstances of each case and indicates that in the ordinary course of events a warning notice will be served first rather than proceeding immediately to a fixed penalty notice or prosecution.
Our concern is that CQC appears to be adopting a blanket approach to the issue, following a line that if there has not been a registered manager in place for six months the consequence will be a fixed penalty notice for the provider concerned. That is not a proportionate approach and fails to acknowledge that CQC has a discretion on whether to issue a fixed penalty notice in the first place.
Factors that CQC should take into account before issuing a fixed penalty notice (and which are set out in its own internal guidance) include:
· the risks posed to people who use the service;
· any safeguarding issues;
· the provider’s history of appointing and retaining a manager for the location in question;
· the steps the provider has taken to appoint a manager;
· the provider’s attitude to the need for a registered manager;
· the deterrent effect of a fine, caution or prosecution on the provider and others; and
· the provider’s personal circumstances.
Providers need to think carefully about whether they might have grounds to challenge the fairness of the financial demand. A breach of the registered manager’s condition is an offence under section 33 of the Health and Social Care Act 2008 but comes with a defence of reasonable excuse. If there are grounds then they should be submitted in writing within 28 days of receipt of the fixed penalty notice.
Equally, there may be good commercial reasons for paying a fixed penalty notice rather than face the threat of a prosecution where a fine on conviction would almost certainly be far higher than £4,000 (with the maximum fine per offence standing at £50,000), as well as the risk of having to pay the prosecution’s legal costs as well as your own if convicted. However, payment of a fixed penalty notice is not an admission of guilt and a provider may want to specify that for the record they are not accepting the allegation of criminal breach when settling the notice.
It is worth obtaining legal advice to consider your options. Please feel free to contact us at Ridouts to discuss your fixed penalty notice. You may be able to get it overturned or, if you are minded to pay it, we can assist you in setting out your position for the record. We’re here to help.