Section 64: A Simple Request Or A Formal Obligation?

At Ridouts, when the CQC issue a notice of proposal seeking the imposition of conditions on a provider’s registration, we commonly find ourselves submitting that such extreme measures are unnecessary given the CQC’s powers to make a one-off request for information under Section 64 of the Health and Social Care Act 2008 (“Act”). But, what is Section 64? And, what impact does this have on a provider?

In short, Section 64 of the Health and Social Care Act 2008 allows the CQC to request from a provider “any information, documents, records (including personal and medical records) or other items which it deems necessary or expedient to have for the purposes of any of its regulatory functions.” While the majority of legislation tends to be fairly convoluted in what powers they grant, this section is clear in its purpose to provide the CQC with the power to request any information within the context of its regulatory function.

The sticking point is that a failure to comply with a Section 64 request may result in a provider being found guilty of an offence and responsible for the payment of a fine not exceeding £2,500. This consequence should lend itself to a cautious approach when considering requests from the CQC.

When receiving a request for information from the CQC, you may wish to ask yourselves the below questions:

  • Is this a formal request under Section 64 of the Health and Social Care Act 2008?
  • What is the context of this request?

A request under Section 64 of the Act is a formal request for information and should be afforded the formality of a letter which clearly indicates use of its Section 64 powers and sufficiently outlines the information requested. Despite this, it is not uncommon for the CQC to make a request for information in a format which alludes to formality but simply wields false authority.

For example, at Ridouts we often see the CQC making requests of providers for information which it intends to use for the purpose of building a prosecution case. The context of this request is that the CQC are seeking to utilise the provider’s resources and knowledge to obtain evidence which assists its potential proceedings against the provider. This is not a cause which you are likely to want to assist therefore it is strongly recommended that you take a moment to consider whether you are under any obligation to provide the requested information.

I must note that politely declining the CQC’s informal request for information may spur an inspection of a service. This is because when undertaking an inspection, the CQC have power to review and receive documentary material. Despite this, the power of well-worded letter should not be underestimated and may result in further action intended to be taken by the CQC – for example, a notice of proposal or notice of decision – being prevented. The drafting of a well-worded letter is a matter which Ridouts is highly experienced and would be more than willing to prepare on behalf of a provider.

While Section 64 of the Act can be a useful tool to argue against the imposition of conditions on a provider’s registration, it is also a powerful tool for imposing obligations on provider’s to provide a wide-ranging amount of information. It is important that providers understand their obligations and that the CQC must take steps to formally request the information under Section 64 before an obligation is imposed.

At Ridouts we are well-versed at navigating requests from the CQC and would be more than willing to assist a provider with a formal or informal request for information. Our experience can help a provider understand what is being requested and for what purpose. This insight can help a provider prepare for what action may follow and be prepared for those next steps. In responding to a request, we can review the documentary material to ensure that information beyond the scope of the request is not being provided to the CQC.

If providers need any advice or assistance, please contact us using the email address info@ridout-law.com or by calling 0207 317 0340.

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