At Ridouts we have seen a significant increase in CQC issuing Notices of Proposals to cancel provider registrations, vary registrations by imposing a condition or removing a location and suspend registrations. All of these to date have been under section 26 of the Health and Social Care Act 2008 which is colloquially called the “slow procedure”.
At this stage the condition has no effect. It is only a proposal to impose. A provider has 28 days from the date of receipt of the Notice of Proposal (“NOP”) to make representations about anything it wishes regarding the proposal. Thereafter, CQC will consider these representations and issue a Notice of Decision (“NOD”). There is no statutory timescale in which CQC must issue a NOD albeit its internal guidance states that it will endeavour to do so within 28 days of receipt of the representations to the NOP. It can be shorter, it can be longer. When a NOD is issued it will either:
- Uphold the provider’s representations and therefore this matter ends and the provider’s registration continues as it did before; or
- Adopt the NOP, indicating that the proposal should take effect.
However, the Provider then has a further 28 days from the date of receipt of the NOD to lodge an appeal to the First-Tier Tribunal. The condition still does not take effect. Matters then proceed to a final tribunal hearing. This can often be 5-9 months after lodging the appeal to the NOD.
The Tribunal hears the evidence of both the provider and the CQC and will decide whose evidence it prefers. Only at the end of the appeal proceedings would the NOP take effect should the Tribunal find in CQC’s favour.
It is important that anyone making a decision regarding the matter (i.e. the person considering the representations before issuing the NOD and the Tribunal considering the evidence before it) must look at the position at the provider at the date they/it makes it/their decision. If it is considered that the alleged breach of the regulations which justifies the proposed action has been remedied then the requirement for the NOP to take effect is removed. What is good about the slow procedure is that it gives a provider time to put right things that were wrong.
There is an alternative procedure CQC can follow. This is known colloquially as the “Urgent procedure”. CQC can impose a condition of registration (or indeed, vary a condition or suspend registration) by serving a written notice on the provider where they have reasonable cause to believe that unless it acts any person will or may be exposed to the risk of harm. This was discussed in detail on The Ridout Report December 2011.
In this situation the condition would take effect immediately and the provider would have a fast-track appeal procedure to the First-Tier Tribunal and which can take place within a matter of days. However these are very rare. In order to take this route CQC would have to show something significant over and above what they have presented already.
Where CQC imposes a condition of registration the effect of this is that if a provider breaches the condition without reasonable excuse (i.e. does not comply at any time) it is an offence and the registered person in breach is liable on summary conviction to a fine not exceeding £50,000. The registered person is the registered provider and the registered manager.
Where CQC suspends or cancels registration and a provider carries on a regulated activity after such suspension or cancellation then the provider is guilty of an offence and is liable on summary conviction to a fine not exceeding £50,000.
In addition, where the offence is committed by a body corporate (e.g. where the registered provider is a limited company) and with the consent, connivance of or neglect of any director, manager or secretary of the body corporate or any person purporting to act in any such capacity, those persons are also guilty of an offence and liable to be proceeded against and punished accordingly.
Where the body corporate is an English NHS body, this included any officer or member of the NHS body. This is likely to be any board member of that body.
If a provider does not wish to challenge the NOP then it will take effect at the end of the 28 day representation period and thereafter the provider will have to comply e.g. by no longer carrying on the regulated activity or by complying with a condition imposed. As noted above, failure to do so is an offence and the provider and individuals of the provider can be prosecuted.
Providers may wish to challenge a NOP and a subsequent NOD, especially where the effect of such NOPs and NODs is for a provider to lose its business or have is so severely restricted. This is also likely to have a knock-on effect on provider’s other locations and CQC are likely to turn its attention to other services.
Ridouts are well placed to advice where a NOP has been issued and can prepare robust representations and support providers throughout the procedure.
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