As reported on in our October 2020 Newsletter, the introduction of CQC’s Transitional Monitoring Approach means that the CQC is moving away from timetabled inspections and towards a more risk based approach. The CQC will base the action it takes on the information it is in receipt of, but this does not necessarily mean that the CQC will ever set foot in a location. Information will be gathered from various places and different stakeholders and should that information flag a potential risk then the CQC will consider what action, if any, it should take. Historically this would have usually prompted an unannounced inspection but with the CQC’s seeming desire not to cross the threshold unless absolutely necessary, at Ridouts we are already seeing the impact of this with an increase in the use of ‘Letters of Intent’.
Now, if you look at the CQC’s Enforcement Policy you won’t find mention of a ‘Letter of Intent’, so what is it?
It is a letter from the CQC served on a provider indicting that the CQC has a concern about a service. It gives the provider a short window of opportunity to provide assurance that the CQC doesn’t need to take further action. Usually the letter indicates that the CQC is considering taking action under its urgent powers as provided for in section 31 of the Health and Social Care Act 2008 (“Act”). Often CQC will say a Letter of Intent has been issued under section 31. This is incorrect – it’s a precursor to action being taken under s.31.
The provider is asked to respond to the issues raised and provide an action plan indicating that appropriate action has and will be taken to mitigate any perceived risk. The timeframe that the CQC allows for providers to respond to these Letters are usually very short, often 24 hours. You’re lucky if you get a weekend – received on a Friday at 4pm and a response is required by 10am on the Monday. I’ve even seen a request come in on Christmas Eve, requesting a response on Boxing Day – Merry Christmas to you too CQC.
The Letter will state that if the CQC isn’t provided with the assurances it requires it can take urgent action to suspend your registration or add, remove or vary conditions to a provider’s registration. This includes removal of a location where a provider has multiple locations on its registration and so in effect means cancellation of a location’s registration. As the action takes effect as soon as the urgent document is served, with a suspension or removal of a location it means that service users have to be removed immediately. To carry on the regulated activities after that document has been served on you is a criminal offence.
There is no external oversight of the action. If there was a single home attached to a registration the CQC would have to apply to a magistrates’ court in order to cancel your registration under a separate section of the Act. With a section 31 notice that decision takes effect when that piece of paper is handed to you.
Under section 31 the CQC can take action “If the Commission has reasonable cause to believe that unless it acts under this section any person will or may be exposed to the risk of harm.” Such wording is wide ranging and seemingly a low threshold (although we would always argue that the urgent nature of such action determines there should be more than a minimal risk).
One has to question the purpose of these letters. As noted above, the CQC often states that these letters are served under section 31. They aren’t. The CQC has certain powers under the Act. It can inspect a location where regulated activities are being carried out at any time. It also has the power to request information or an explanation from a provider. These Letters of Intent are not served under these provisions of the Act. Legally the CQC does not have the right to request such information to be handed over outside their powers under the Act. However, the threat of enforcement action at its highest level is enough to spur any provider on to hand information over. Don’t get me wrong, I’m not suggesting for one minute that providers should not respond to these Letters – far from it. In fact a very thorough response should be provided. However, are these letters to allow providers an opportunity to correct/put things right or an opportunity for the CQC to gather more information – after all if the CQC had reasonable cause to believe that someone will or may be exposed to the risk of harm should they not have taken action already?
Providers should take these letters very seriously but should also not panic. Timeframes in which to respond are often tight but as noted above, a thorough response should be provided. It is important to set out a clear plan addressing the CQC’s concerns, noting where action has already been taken, if action is to be taken (with short but achievable deadlines) and demonstrate how the risk of such matters arising again will be mitigated. Assurances should be provided but it may be the position that you do not agree with what the CQC has said or the conclusions it draws from the facts it presents. Remember that CQC should only take action when it deems that Providers are not meeting the relevant regulations. Providers should consider seeking legal advice at the Letter stage as a well-crafted response, with reference to the legal requirements of the regulations and legal standards that CQC must prove in order to justify the action it seeks to take, can provide food for thought to the CQC and put the brakes on any enforcement action.
With any form of enforcement action, whilst the burden of proof is on the CQC to demonstrate that standards have fallen below that required under the relevant legislation, the reality is that providers must put forward their position to demonstrate why the CQC is not correct in its assumptions or the action it is seeking to take. Responses should be careful not to provide ammunition to CQC to justify it taking action beyond the Letter of Intent stage and this is where legal advice can be invaluable to provide the right balance.
Should the response to the Letter of Intent not assuage the CQC and urgent action is taken by the regulator, its impact can have an immediate and devastating effect. All may not be lost though, as such action can be appealed. Ridouts has successfully brought an appeal to the First-Tier Tribunal when CQC took such action against a provider under section 31 which immediately stripped it of its registration. Ridouts believes that this is the only successful appeal of its type to date.
It seems likely that if the CQC is relying more and more on third party information, with potentially an unwillingness to physically visit a service, that we will see more Letters of Intent. It would appear fundamentally unfair for the CQC to take action without having seen the alleged issue with its own eyes but as we move more and more into a virtual world it is even more imperative that providers are enabled to present their position and counter it if required, even if they only have a short window to do so. A comprehensive, carefully worded, and supported response could make all the difference.
Please contact Ridouts if you receive a Letter of Intent from the CQC, or if the CQC seeks to take enforcement action again your service. We’d be happy to talk through your available options.