Ridouts solicitor, Nythan Smith, considers the nature of the playing field once providers appear in front of a judge led panel and reflects on what they can do to bolster any appeal that they may submit.
|Since August 2016 the CQC has had decisions it has made in respect of the registration of health and social care providers appealed 55 times before the First Tier Tribunal (Care Standards). Of those 55 occasions, only four appeals have been successful. This translates to a ‘success rate’ of 92%. This figure should come with a warning as in our experience a great deal more cases are settled in favour of providers prior to proceeding to a formal hearing, which is very much the final throw of the dice in an often prolonged period of action being taken by CQC.
Why is CQC’s success rate in defending appeals of its decisions so high?
The reason for such a high ‘success rate’ for the CQC at Tribunal could be due to a whole host of reasons. Perhaps CQC only seeks to proceed to oppose appeals where it has the strongest evidence against a provider or perhaps it has not received strong reasons from the provider to dissuade it from taking such action. It could also be due to the lack of experience of the provider seeking to bring the appeal and responding to each stage prior to appearing at the Tribunal.
What is also clear in research is the relatively high number of providers representing themselves in front of a Tribunal and perhaps not putting forward the most robust case possible. Appeals need to be carefully prepared and not only based on a strong evidential base but also well-established legal arguments. An appeal may feel like yet another regulatory hoop to jump through but providers should make no mistake, this is a court hearing, in front of a judge. It should be treated with the same level of seriousness as a criminal trial in the Crown or Magistrate’s Court. After all, your business is likely to be at stake and is in the hands of a judge led panel.
What is important to understand is that the CQC is changing and it may seek to resort to issuing decisions to cancel registration of or place conditions on providers’ registration more readily than has been the case in the past. Given the high success rate in defending appeals against its decisions this could mean that CQC are even more confident in the decisions that it makes not being successfully challenged. In the last five years, cases defended by CQC to the Tribunal stage have only just risen to double figures with an average of 10.4 cases being brought in a calendar year. The low number of appeals being brought against CQC may give providers reason to rest on their laurels and adopt a less rigorous attitude when interacting with CQC on the proviso that any such action will go away. We suggest that this is not wise. The low number of decisions being appealed can be interpreted one of two ways: either providers are accepting of CQC’s findings or providers find it difficult to challenge CQC’s decisions when they reach the Tribunal phase. Irrespective of how one chooses to interpret this information, the numbers would appear to be on the side of the prudent and responsive provider. These providers, we assume, can supply quality evidence to CQC prior to a decision being reached, which removes the need for an appeal of that decision.
How can providers successfully challenge CQC decisions?
Providers have to look at interactions with the regulator with ‘worst case scenario’ lenses on and seek protection from becoming part of ‘the 92%’ who find themselves unsuccessful at the appeal stage, the ultimate consequence of which being the cancellation of their ability to provide regulated activities. So few have had the experience of appealing against a decision imposed by CQC that it can be difficult for providers – with little, if any, exposure to the process – to know what the best course of action is.
A successful defence against CQC action is not guaranteed but adopting a reflective and positive approach far before the receipt of a proposal or decision affecting your registration is likely to improve your prospects of success. This means responding comprehensively and promptly to CQC with factual accuracy comments on inspection reports or requests for information and not adopting an overly adversarial stance in response to any such communications. The end goal is ultimately to retain one’s registration free from onerous intervention from CQC and as such, the focus must be on demonstrating your position in the most effective manner possible. Providers should seek to correct the factual position when it is incorrect, especially when that position is supported by evidence. They should also accept those points where a providers’ resources are better placed to rectify points in response to CQC’s position and, for example, bringing in consultants to assist with improving the day to day position on the ground.
In terms of being engaged in the appeals process to a decision taken by CQC, the more work that can be done sooner, the better. Each decision that is made by CQC is – unless an urgent decision – underpinned by a proposal both of which must be responded to within 28 days. Responding to both stages is time intensive and requires a great deal of consideration of the pertinent points raised and a critical consideration of the evidence in your possession. You should employ experts such as ourselves to assist you in making formal legal submissions to protect your position. Given our vast experience in such matters and our size, we have the ability to provide you with expertise and access others simply are not able to provide.
It is our experience that CQC are often using the stick of issuing of notices of proposal and decision to encourage improvement within providers. It is clearly an important tool in CQC’s arsenal and irrespective of the merits of CQC operating in this manner, this is a landscape within which providers must operate. A little known fact is that from the point of being issued a notice of proposal to actually having an appeal against a decision heard before a Tribunal can take the better part of 12 months. The Tribunal will consider the position of the provider as at the point of the hearing, so you continue to have the opportunity to rectify any historic issues raised within any decision between being issued with a proposal and decision and having the opportunity to appeal it. Despite there being that time delay, it would be unwise to go through the motions and only raise matters at the Tribunal hearing. Engaging with process at the earliest possible moment can help to narrow the issues in contention and force CQC to reconsider its position.
How can providers improve their prospects of success in challenging CQC’s decisions?
In order to provide you with the best chance of succeeding in appealing decisions made by CQC, the work needs to be put in well in advance of any formal decision being made. Providers need to take CQC communications seriously and treat all such communications as though they will be scrutinised in front of a judge and as such great care and thought should go into such communications. Providers need to, if possible, review their position as if a third party is reviewing their position and work backwards to see how it might best present its position so that it is easily understood by that third party. Providers are proud of the services that they provide and providers need to bring CQC along on their journey and provide evidence which supports their position.
It seems inevitable that CQC will continue to pursue providers in the manner which it has historically. Given CQC’s redoubling of focus on risk in its most recent version of its strategy the numbers of providers finding themselves appealing CQC’s decisions are likely to rise. What remains to be seen is whether CQC’s 92% success rate in defending appeals against its decisions will rise or fall. One thing is certain, engaging Ridouts to defend you at an early stage in challenging inspection reports, responding to CQC notices of proposal or decision or action proposed by local authorities will provide you with the tailored support you require to challenge CQC when the time comes.