Section 30: What a difference a day makes

At Ridouts we assist providers with all manner of regulatory enforcement action. Much of what we are instructed to challenge falls on the lower to moderate end of the CQC’s scale of severity but occasionally we are faced with the most serious action that is available to the CQC – an urgent cancellation of registration under Section 30 of the Health and Social Care Act 2008. When such a case arrives on our desk the timescales for response are extremely short and a provider needs to react instantly. We can be there at a moment’s notice to support the client and help to build a speedy appeal.

In basic terms, the action means that the CQC is seeking a hearing before a court to have the client’s registration cancelled and the service closed down immediately. When we get that call from a client we need to act quickly and create a plan of action. But what does that look like?

Picture the scene. It’s 8pm on a Thursday evening. It’s been a long week and I (and the majority of people nationwide) are surgically attached to the sofa for the night. My mobile goes off. It’s a client I haven’t heard from in over a year. Last time we spoke she had decided not to challenge conditions that the CQC had urgently imposed on her service’s registration. We exchange pleasantries and then she lets me know why she’s calling.

“I was just wondering, I’ve had this email this evening from the CQC and I don’t really know what it means. Should I be worried?”

I ask her to forward me the email and as I open it – my evening changes dramatically. The client was right to call me and yes, she should be worried.

What we have here is the aforementioned, seldom seen urgent application to a magistrate under Section 30. The proposed hearing is scheduled for the next day at 2pm. The future of this service will be decided in less than 24 hours.

The correspondence received by the client is from the CQC’s lawyer and notifies us of the application they have made to the court. The detail is scant but it includes a statement that the CQC believes that if the order is not made to cancel the registration urgently, there will be a serious risk to a person’s life, health or well-being, this being the statutory test.

This is an extremely high bar, which is understandable for action that will have enormous consequences, namely the instant cancellation of a registration resulting in the immediate removal of any service user residing at the service.

My brain kicks into action but given the time of night there is little that can be done other than reflect on the correspondence, speak to the client to try and understand how we got to this point and start to plan for a busy morning. It will be a sleepless night for us both. At Ridouts we pride ourselves on our agility and ability to react quickly. Cases such as this demand instant action and strategic planning. Given our experience in the sector, we are able to do this at pace. Immediate work will involve an analysis of the grounds on which the CQC seeks to make the application.

Morning arrives and I am already gathering evidence from the client. Our aim will be to try and convince the magistrate that the legal test does not apply in this case.  That requires us to demonstrate, through evidence, that there is no serious risk to a person’s life, health or well-being. Where criticisms of a service have been made a provider can detail through evidence what improvement works are going on at the service. We can gather evidence on what immediate measures have been put in place to mitigate the concerns that the CQC raised during its visit (because the Section 30 application is often made as a consequence of an adverse inspection). A client’s best chance of success in these cases is to show that they are being proactive.

Such a court hearing requires expert advocacy, so whilst I try to build the fastest case of my life, I am also on speakerphone to several barristers’ chambers trying to engage counsel. Clients can feel overwhelmed in these situations and so we can offer immediate support to take the pressure off, such as arranging a barrister to appear at the hearing and deliver our case. Unsurprisingly very few have availability for a court hearing in three hours’ time but 9th time is a charm and we engage the services of a wonderful, tenacious and determined barrister. We become teammates for the day and quickly brief each other on the facts, strategy and how we are going to convince the court that our client’s business should live to fight another day.

Clients in this position are often shell shocked by the position they find their service in. Successful Section 30 enforcement action has huge consequences for the service users who will be forced out of their homes, the reputation of the company when the news finally hits the local press and the staff who will no longer have a place of employment. Ridouts is able to give ongoing advice throughout the preparation process and support the provider to understand what is happening.

It is rare that Section 30 action arrives out of the blue. Most clients that have received an application to court notification from the CQC will likely have been in recent contact with the regulator. This might be through adverse inspections or steadily increasing enforcement action. Any escalating concerns or negative involvement from the CQC should always be managed proactively and legal advice should be sought. Failing to address ongoing concerns can have a snowball effect, resulting in serious court proceedings (such as the Section 30 action). Providers can often be caught out when they do not feel it necessary to address negative inspection reports, warning notices and / or imposition of conditions on their registration that lead them to this point. Providers may not appreciate the extent of problems at the home in question and simply not react quickly enough in resolving issues. In these situations, the CQC can lose faith that the provider can implement and sustain change.

Ridouts can advise clients facing Section 30 action on how to approach immediate work, including installation an independent consultant (a turnaround and crisis specialist). What the Court will want to see is swift and immediate action – enough to show that there is no serious risk to life, health or well-being present.

Whilst the urgent hearing can and will go ahead without a provider present, we would always recommend that clients do attend (with legal support) and give evidence to detail the current position based on the work that has been undertaken (if this is the case). In line with our recommendations, clients often also have an independent consultant give evidence about their views of the service and what it will take to make the necessary improvements. If there is a cogent plan for change, that will be looked upon favourably.

If the Judge is convinced by the client’s arguments and is assured that there is not sufficient enough risk of harm to take such draconian action, then the urgent decision will be quashed and not take effect. If the CQC succeed and the provider’s arguments do not persuade the Judge then the order will take immediate effect, meaning that the registration is cancelled as soon as the document is signed and sealed by the Judge.

In that event, on the basis that the home would then be operating without registration, the staff working there will be prevented from continuing to deliver care as this would be illegal. The relevant local authority (which could be in support of the closure) will then need to take steps to immediately relocate service users. Within a matter of hours after the decision is sealed the service will be empty.

The lives of the provider, service users and staff will change in less than a day but in real terms, this extreme scenario could be wholly avoidable. Small failings and escalating enforcement action are clear indications that the home was failing and that the CQC is losing confidence. Proactivity from the provider and legal support in earlier stages will almost certainly avoid such extreme action from the CQC.

This is a cautionary tale to providers and a significant regulatory power that all must be aware of. This firm has seen urgent proceedings under Section 30 go both ways. Sometimes businesses can be saved and other times providers are seen as making changes that are “too little, too late”. CQC activity accumulates and when the regulator’s confidence in a provider is lost it is hard to regain. We would always advise clients to address any CQC involvement in a contemporaneous way – taking support from lawyers and consultants at the earliest opportunity.

When notice of an urgent hearing arises it is a short, sharp shock. Advice is an investment and when a provider feels that the pressure from the CQC is increasing, this generally means that it is and when pressure increases – something has to give.

Ridouts can be by your side at short notice to support and explain complex legal issues and operational problems. All providers are entitled to representation and seeking advice early can preserve a provider’s reputation, help to maintain commercial viability and prevent life-changing consequences for service users.

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