In recent months we at Ridouts have seen a significant increase in the Care Quality Commission’s use of enforcement action. Providers are approaching us seeking explanations for the serious looking correspondence that has landed on their doorstep. Emblazoned in bold lettering, the headings bear the ominous text “NOTICE OF PROPOSAL TO CANCEL YOUR REGISTRATION” or “NOTICE OF PROPOSAL TO VARY THE CONDITIONS OF YOUR REGISTRATION”. Providers read on and are presented with pages of “evidence” to support the CQC’s argument as to why this course of action is necessary. Already in a panic, the reader gets to the end of the document and sees that they have just 28 days to submit representations to the CQC as to why the notice should not be adopted. The pressure is immeasurable. The quality of that response will be the deciding factor in whether the CQC proceed with the action and issue a provider with a Notice of Decision or determine that the Notice of Proposal (or “NOP”) should be withdrawn and make the proposed action essentially disappear. Without putting too fine a point on it, this is probably the most crucial piece of work that a provider will ever complete and it will effectively help to decide the future of the individual service and, in some cases, the business as a whole.
Providers react in different ways to NOPs. They can be categorised as follows:
The Ostriches: A breed more common than you would think, some providers receive a NOP and immediately file it in an obscure desk drawer, also home to wage slips from 2005 and some questionable boiled sweets. Contrary to popular belief, this does not make the action go away. All it means is that upon failing to submit any type of a response, the CQC will immediately jump to issuing a Notice of Decision to the Provider. This means that the only way to fight the proposed action at this stage is to lodge a formal appeal at the First Tier Tribunal (Care Standards). Putting forward the strongest argument at the earliest opportunity is a provider’s best chance of avoiding costly and protracted legal proceedings. Being in denial can be fatal to a care business.
Some Providers come to us at this stage, having realised that there is no escape and that if they do not lodge an appeal 28 days after receipt of CQC’s Notice of Decision, the decision will take effect. Whether the consequence of that is the closure of the service or the imposition of conditions on a registration (that could restrict a business), this is undoubtedly very serious.
We can always help providers when they have been hit with a Notice of Decision, even if perhaps they haven’t fully appreciated the importance of engaging with the CQC earlier, but in order to give a Provider the best chance of success, they should use every opportunity to get their side of the story across to the CQC. That being said, we have had great success with lodging appeals with the Tribunal and presenting our Client’s case even at such a late stage.
The Procrastinators: The procrastinators receive the NOP and understand its importance. They accept that action must be taken and start to think about what they can do about it. Then 25 days pass without event. The provider is consumed with ongoing matters at the service and normal life takes over. Two days before the response is due to be submitted to the CQC, reality bites and the mad rush to prepare something begins. This approach is completely usual and understandable. Providers have businesses to run. However, precious time has been wasted which could have been used to gather evidence as to why what is contained in the NOP is not correct or to show that the position demonstrated in the NOP is no longer relevant as it is so historical (both effective arguments).
This delay does not necessarily mean the end of the road for a provider. We have been known to produce detailed and eventually successful responses to NOPs with just a few days’ notice. Whilst this isn’t ideal, we pride ourselves on being able to manage whatever a client throws at us and as noted above in relation to the Ostriches, it is always best to submit something that tells your side of the story as opposed to nothing at all. The simple act of making a submission demonstrates that the leaders of a provider are taking the enforcement action sufficiently seriously and have either committed time to producing a response themselves or have appointed a solicitor to create a legal argument on their behalf. This sends a clear message to the CQC.
The Fighters: Some providers are so incensed or alarmed by a NOP that they immediately start working on a response or instruct us to do so on their behalf. In their view, they have to do everything within their power to make sure that this proposal is not adopted. They will draw together documentary evidence and go through the NOP with a fine toothed comb trying to assemble arguments to deflect the proposed enforcement action. When Fighters come to Ridouts they ask us to support them in drafting the response and going through the NOP forensically. They usually arrive at our offices with a dossier of documentary evidence and it is then our task to create a response that is compelling and would prove difficult for the CQC to ignore. Fighters make use of the full 28 day period, whether on their own or through Ridouts, and will speak to relevant stakeholders, sift through care records and carefully put their case forward.
Fighters usually seek advice from us on the proportionality of CQC’s arguments and whether or not the NOP is justified. All such points can be addressed in detail alongside a full analysis of the issues raised by the CQC.
Every provider’s circumstances are different and their approaches to a NOP will vary. The most important point to emphasise is that you have a right to respond. CQC gives providers the opportunity to makes their case when faced with a NOP. This opportunity should be grasped with both hands. Even if CQC do not uphold submissions to a NOP, if the matter moves to a Tribunal then the provider’s original response will form part of the bundle that is considered by the judge and their panel. It is an excellent opportunity to set out your position.
The best way to defend your registration is through careful and detailed analysis of the CQC’s arguments against you. Supporting this work with relevant and compelling pieces of documentary evidence will give providers the best chance of success.
Being the subject of enforcement action is incredibly daunting and has very serious and far reaching consequences (both commercial and reputational) for providers. Ridouts is here to offer clear legal advice and guidance to providers at any stage of the process.