The Notice of Proposal: a forgone conclusion or a meaningful last chance saloon?

I’ve lost count of the number of calls that Ridouts has received from panicked health and social care providers over the years, anxious about an alien piece of correspondence that has just landed in their inbox from CQC, Ofsted or any other regulator.

The wording can be confusing to a provider that has never faced regulatory enforcement action before:

NOTICE OF PROPOSAL TO CANCEL YOUR REGISTRATION
or
NOTICE OF PROPOSAL TO VARY THE CONDITIONS OF YOUR REGISTRATION

It doesn’t look great. We are asked what this means. Many are distraught, thinking that this is the end of the road for their business and that the decision has already been made by the regulator– the service will be closed or a condition will be added to its registration, preventing it from doing something or adding a positive condition requiring that it take a specified action.

But this is not the case. It’s easy to get swept up in the language of “cancellation” but what is more important is to focus on the term proposal.

At this stage the correspondence has no effect. It is only a proposal to take action, a step that the regulator is considering. A provider has 28 days from the date of receipt of the Notice of Proposal (or “NOP” as we often refer to them) to make representations about anything it wishes regarding the proposal.

Thereafter, the regulator will consider these representations and issue a Notice of Decision (“NOD”). There is no statutory timescale in which the regulator must issue a NOD although each regulator will have internal guidance setting out some expected response times (e.g. the CQC aim to respond to NOP representations within 28 days).

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.

In the event that the NOP is adopted and a NOD issued, there is still the chance for the provider to continue its fight. At the NOD stage the power is taken out of the regulator’s hands. If a provider feels that the NOD is not reasonable and wants to challenge it further, it has an additional 28 days (from the date of receipt of the NOD) to lodge an appeal to the First-Tier Tribunal (Care Standards).

The action still does not take effect – i.e. no cancellation or amendment to registration will happen under this mechanism, until an appeal has been heard at the Care Standards Tribunal and a decision made by the presiding judge and panel. Providers can take some comfort in the fact that, at present, appeal hearings are being scheduled for around 6-9 months after an appeal is lodged. This means that a health or social care business can continue to operate uninterrupted in this timeframe.

This is particularly important because a Tribunal hearing must look at the position of the service as it is on the day that it makes its decision. This means that, whilst the Tribunal will obviously be aware of historical breaches, it will be deciding whether or not the regulator’s decision should still take effect in the “here and now”.

This offers a lifeline to providers that accept that improvements need to be made. If providers take ownership of weaknesses and put into place a robust action plan to spark and sustain change, then this will go a long way to improving its chances of success at a Tribunal hearing. The more improvements that are made, the less reasonable the regulator’s course of action becomes.

Often, providers start to set out their program of improvement as soon as the NOP response stage begins, in an attempt to persuade the regulator that there is no need to take the action proposed (because the provider has taken responsibility and is making changes). Ridouts has found this to be a highly effective approach, where appropriate.

In order to fully appreciate the positive side of the NOP process (it’s hard to consider that there is one!) we must reflect on the alternative methods of enforcement action available to regulators.

There is a more urgent process that a regulator can follow to cancel or amend a provider’s registration. This is known colloquially as the “Urgent procedure”. The regulator 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.

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. In order to take this route CQC would have to show something significant over and above what they have presented already.

Regulators are also able to take action to immediately close or suspend a service where they believe that a risk is posed to service users.

We mention these channels briefly in order to draw comparisons with the NOP process which, by its nature, lacks the urgency that other processes rely on. This is why the NOP process is widely known as the “slow process”. If we tie that back into the NOP process’ timings of hearings and the relevance of showing improvement at a service as part of any response or appeal, it is clear to see that there is much scope for providers to build strong arguments and negate the enforcement action.

Providers ought to regard the receipt of a NOP as a last chance at convincing the regulator that they can be a good provider that will take responsibility for shortcomings (where applicable) and will be proactive about creating a plan of action to implement and sustain change.

If a provider disagrees with the basis of a NOP and does not believe that it has justifiably been issued, then that should also form part of any challenge.

NOPs should be broken down by allegation and responded to in detail, using supporting evidence to demonstrate the work being done in respect of each.

Receipt of any enforcement action can be daunting and the language used can strike fear into the hearts of any provider – but remember the key word “proposal” here. This is a slow process and you are being afforded the chance to use the time set out in the response framework to build your service back up to its best and present a current and improved picture to any relevant decision maker. If there were enough risk and urgency involved to take immediate action, a regulator would

engage the relevant urgent processes described above, however, the NOP process gives breathing space to providers that are reflective and responsive. This is not to say that a NOP is not serious – it absolutely is – but remember – you can operate as normal whilst your challenge is ongoing and nothing will take effect until either you decide not to appeal or the Tribunal confirms or quashes a NOD upon your appeal.

The way providers spend this time is vital, as is the level of detail that they present to the regulator in their NOP response. Ridouts responds to NOPs in the course of our day to day practice and we find that forensic reviews, coupled with tangible evidence of change has the best chance of success.

We have found that very few of our cases end up being heard at the Tribunal because providers who engage properly with the NOP response process are able to put forth detailed submissions and reassuring evidence to a regulator that results in any action against them falling away. This can happen either before a NOD is issued or after the submission of an appeal when the regulator returns to a service to inspect against the cited improvements.

Providers must remember that NOPs indicate the start of very serious enforcement action and will potentially end in court proceedings. On that basis, providers should take legal advice and comply with all deadlines issued by the regulator.

Receipt of a NOP is a serious indication of perceived failure to comply with regulations but it does not mean the end for your business. This is the opportunity for troubled providers to take control of the matters in hand, plan their improvements and build a case to try and convince the regulator that it will, once again, be a good and consistent provider of care.

For advice and support in responding to a NOP or any enforcement action, call Ridouts on 0207 317 0340.

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