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Many providers will have been affected by CQC enforcement action, including:
- Fixed penalty notices;
- Notices of Proposal;
- Section 31 notices;
- Investigations and prosecutions.
It remains to be seen what effect the Single Assessment Framework will have on this 1. However, the purpose of this briefing is to highlight the practical steps that providers should take to minimise the impact of enforcement action.
Fixed Penalty Notices
These are most commonly used where CQC identify a failure to make a statutory notification. Invariably there is little that can be done to avoid paying the fixed penalty rather than a potentially higher fine if CQC were to prosecute instead.
However, it will be important to ensure that managers are aware of when statutory notifications are required and that the provider has a double-check system in place to ensure that these are done.
Notices of Proposal (‘NOP’)
NOPs arise when CQC propose to change a provider’s registration, perhaps to impose conditions, or to cancel the registration for a care home. They are often a result of breaches identified during an inspection and the provider will therefore have been on notice as to the issues from that time, well before the NOP is served. It will be important to start taking action to address the areas of breach immediately after the provider becomes aware of this and certainly not to wait until the NOP is served.
Upon receipt of the NOP, the provider has 28 days to serve representations, setting out why the change to the registration should not be made. It is important that these representations address any inaccuracy in the NOP or anything that has been overlooked or taken out of context by the inspectors. Most importantly, the representations need to specify how the issues have been addressed by remedial action. If work had started on this at the time of the inspection feedback, the provider would have had the time since then and the 28 days for serving representations to address the inadequacies.
It is often useful to have external legal advice on representations to ensure that the best case is put forward. We would certainly not recommend waiting until CQC issues a Notice of Decision before obtaining advice, as by that stage, the only further step is to appeal to the tribunal.
Appeal to the Tribunal
If CQC issues a Notice of Decision to impose the proposed change referred to in an NOP, a provider may appeal to the Tribunal. They have 28 days to appeal. That appeal is their chance to re-emphasise everything that has been done to address the breaches.
It is important to take account of the fact that the Tribunal will review matters at the date of the hearing not at the date of the inspection or the NOP. Accordingly, providers who have taken action immediately after a breach is identified will have had several weeks from the inspection until the appeal has to be lodged, during which remedial work can be undertaken. CQC commonly issue a Notice of Decision without having re-inspected and appeal proceedings are therefore often adjourned to enable them to do that.
Section 31 Notices
CQC also have the power to take urgent action under Section 31 Health & Social Care Act where a person may or will be exposed to the risk of harm. Action taken can range from imposing conditions to removing registration. The importance of an s31 Notice is that it takes effect immediately (or when specified). The Section 31 procedure is shorter and requires urgent concentrated input. Commonly CQC send a letter as a Notice of Intention to serve a Section 31 notice unless the provider can address their specified concerns. Such a letter invariably has a very tight timescale and although CQC may agree to a very small extension of a day or so, they are unlikely to agree anything more. This will put a great deal of pressure on a provider but that is the purpose of the procedure, as it is reserved for urgent cases. Invariably an action plan is required, and this should always have very short implementation timings. Frankly, if those timings don’t hurt, then they are not short enough!
A Section 31 Notice can also be appealed to the Tribunal, which will assign it to a fast track to hearing very quickly.
There has been much comment on the fact that CQC are prosecuting more. A provider will be told when CQC are investigating and will probably receive a request for information and documentation, before being asked to respond to questions in writing, as if under caution, pursuant to the Police and Criminal Evidence Act. It is important to obtain early legal advice on these matters, to ensure the best possible case is advanced, and any mitigation is made clear. If prosecution follows, this will also ensure that the provider is able, if appropriate, to plead guilty at the first opportunity and then get the benefit of a one-third discount on the fine.
T: 020 7227 7282
Weightmans have significant experience advising health and social care providers in relation to CQC enforcement action.
Care England members can also avail themselves of 15 minutes free consultation with one of the Weightmans’s solicitors by calling:
- Julie Chakraborty on 020 7227 7364, or
- Joanne Small on 020 7227 6736.