Notices of Decision – Using the Appeal Process to your Advantage

It is always worrying when you receive a letter from the CQC that states it has decided to cancel your registration, suspend your registration, or impose conditions on your registration, which in effect, will prevent you as a provider from conducting business.

At Ridouts we have received numerous calls from panicked providers about the effects of Notices of Decision (“NOD”) and how soon they take effect.

We are here to let you know that you can breathe a little, because not all NODs are  final or immediate in all cases.

In this article I will outline the legal provisions that govern NODs, what a provider’s appeal options are, depending on the type of NOD issued, and how this appeal process can be used as a second chance to improve your service and invalidate the CQC’s initial findings.

Legal Framework

The CQC’s ability to issue NODs is governed by the Health and Social Care Act 2008 (“HSCA”).

Usually a NOD will not be a surprise to a provider because they are typically preceded by a Notice of Proposal (“NOP”).

According to S.28(3) of the HSCA, where the CQC has decided to adopt a NOP issued under S.26 of the HSCA, then it must give the provider, who is subject to the NOD, (i.e. the adopted NOP) notice in writing. By virtue of S.28(4) of the HSCA, the NOD must also include details of a provider’s right to appeal under S.32 of the HSCA  and the underlying reasons for the enforcement action being taken.

There are rare circumstances in which the CQC can issue a NOD without issuing a NOP first. This is known as an Urgent NOD and only occurs in exceptional circumstances when the CQC believes that if it does not take immediate action then people’s lives and welfare will be at serious risk of harm. These NODs, issued under S.31 of the HSCA, can be issued in relation to varying, removing or imposing conditions on registration and suspending registration.

It is important for providers to know the relevant section of the legislation that the NOD is being issued under because this will determine how soon the NOD takes effect. In the case of S.31, these take effect immediately when the notice is given, whereas with S.28 these will not take effect until after 28 days have passed and a provider does not make any representations, or the appeal process has been exhausted and the provider has not been successful in its appeal.

Regardless of the section under which the NOD is issued, all give the providers a right to appeal under S.32 of the HSCA.

Under S.32(2), providers have 28 days to lodge an appeal with the First-Tier Tribunal (“FTT”) from  the date the NOD is served on a provider.  There are rules around when a NOD is deemed to have been served so it’s really important that this is checked to ensure you don’t miss the deadline to appeal.  You should consult specialist lawyers on this. Once the appeal is lodged, the appeals process must be exhausted before any NOD can take effect (bar S.31) or if a provider decides to withdraw their appeal. This means that while there may be a timeframe or deadline to comply set by the CQC in the NOD itself, providers need not change their provision of service in line with it until after the appeals process is finished (bar S.31).

The FTT may then confirm whether or not that NOD will take effect – in the case of NODs issued under S.28 – or that the NOD will cease to have an effect – in the case of NODs issued under S.31.  The FTT can also impose discretionary conditions or vary the period of suspension.

Impact of NODs & Action Providers Can Take

  1. 28 NODs are basically the last step that the CQC must take before any proposed enforcement action under S.26 of the HSCA is confirmed and final.

This makes it nerve-wracking for providers and they can often feel trapped and/or helpless. However, this is why it is crucial to utilise the appeals process outlined in S.32 of the HSCA, because this can offer providers a vital resource – time. By utilising the appeal process providers also pause the enforcement action (bar S.31 NODs), at least for the time being.

Providers should use the timeframe over the appeal to address the points raised in the NOD so as to invalidate the CQC’s justification for issuing it. This means taking the time to improve their services where necessary and enhance their service where processes and systems already in place are sufficient and effective.

Where a S.31 NOD has been issued a provider will be required to comply from the date of notice. However, by still utilising the time to improve their services in line with the NOD they increase their chances that the FTT will determine that it ceases to have effect. This can be especially useful in the case of conditions which do not have a specified end date and/or are to be in place for an extended period of time.

The appeal process also give providers the chance to argue their case to an objective third party, because unlike warning notices, NOPs and even inspection reports, NOD appeals are reviewed by the FTT as opposed to the CQC.

This is also why utilising the time for the appeal to run its course to make improvement is invaluable. The FTT will make its decision based on the state of the service at the time of the appeal. So while the NOD may have been issued a number of months prior, the FTT will be looking at the service at present as opposed to when the NOD was initially issued.

Any improvements made since the NOD was issued will be taken into account , and as such a provider’s efforts can help to increase the chances that the FTT accepts the appeal.

Conclusion

Ridouts always recommends challenging the CQC’s decisions, especially where these are made hastily, disproportionately, and/or are unfounded.

While receiving a NOD can seem final, NODs are not the set in stone. The appeals process is always available to providers and should be utilised where a provider believes the NOD was issued in error or on erroneous grounds.

Further, NOD’s do not have to mean the end of your business. Where providers do appeal these, Ridouts has often seen success in getting the CQC to compromise by issuing lower level enforcement action (i.e. instead of cancelling a registration, imposing conditions that have been agreed between the parties; shortening the timeline for conditions; imposing less onerous conditions; etc.) and even withdrawing the NOD before the final FTT hearing.

The appeals process outlined in S.32 of the HSCA is an invaluable tool for providers and should be used whenever possible. However, Ridouts understand that this process is daunting and time consuming. If you need help appealing a NOD or challenging any other enforcement action taken by the CQC Ridouts team of specialist solicitors is here to assist. Ridouts has experience in supporting providers throughout the NOD process, including handling and preparing evidence and providing advice on NOD procedure, potential risks and strategy. For more information, please contact our specialist team of solicitors on 0207 317 0340 or email info@ridout-law.com.

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