Ridout solicitor, Gemma Nicholas, considers the First-Tier Tribunal process and what happens during the appeal process if the CQC tries to cancel, vary or suspend your registration.
What is involved in the appeals process?
The appeal process is a long and intense road. It is important that providers have an idea of what they are entering into before embarking on an appeal. Prospects of success depends on the case. However, what is evident is there is not one way to succeed at appeal, success can be anything from negotiation with the Care Quality Commission (CQC) during the appeal process to a judgement in the provider’s favour at the final hearing. Ridouts has a wealth of experience representing providers during appeal proceedings and applying the appropriate strategy at every step of the way.
Where it all begins
In accordance with the Health and Social Care Act 2008, the CQC can impose conditions (s.12); cancel the registration (s.17) or suspend the registration (s.18). In accordance with section 26 of the 2008 Act, the CQC must give notice of its intention to do so (Notice of Proposal) followed by notice of its decision (Notice of Decision).
The appeal process begins when a provider responds to a Notice of Decision issued by the CQC. The provider has 28 days from the date they received the Notice of Decision to submit an appeal to the First-tier Tribunal (Care Standards). However, the issues at hand begin before this stage, the CQC issues a Notice of Proposal before issuing a Notice of Decision. The provider would have had an opportunity to submit representations within 28 days of receiving the Notice of Proposal. It is important that providers submit thorough and robust representations about why the proposal should not take effect, as this is their last opportunity within the CQC’s internal process to set the record straight.
Providers may find that the CQC disregards the representations against a Notice of Proposal, leaving the provider in a position where they have to repeat themselves at the appeal stage. Nevertheless, given all that is at stake, the provider can be left with no choice but to appeal.
More than form filling
The CQC is notified by the Tribunal of the appeal and has 20 working days (3 working days in an urgent cases) to formally respond. The Respondent (the CQC) considers the approach it will take, whether it will oppose or allow the appeal.
Throughout the proceedings there will be a number of Case Management Hearings which take place by telephone. These are usually short hearings attended by the Tribunal Judge, and the Appellant’s (Provider’s) and Respondent’s (CQC’s) representatives. The first of these hearings will be to agree the timetable for the rest of the proceedings up to the Final Hearing.
There are timescales dictated by the Tribunal rules as well as directions and orders issued by the Tribunal Judge. This involves communications between the Appellant, the Respondent and the Tribunal. However, communication often takes place between solely the parties, the Appellant and the Respondent which the Tribunal is not aware of at the time they take place. It is in this arena that negotiation often happens. Lawyers at Ridouts are well equipped to navigate this arena to achieve the best result for providers.
Throughout the proceedings the parties can submit applications to the Tribunal to stay proceedings or strike out whole or part of the appeal proceedings. Also either the Respondent or the Appellant can seek agreement of the other party to dispose of the appeal case by an alternative method, for example, by imposing conditions as an alternative to cancellation, and to lodge a Consent Order with the Tribunal disposing of the appeal.
Work, work, work
The burden is on the CQC to prove the facts on which they rely in establishing that the enforcement action should be carried out (conditions imposed, suspension and cancellation). However, the tribunal makes the decision afresh based on the state of the service at the time of the final hearing and is entitled to consider post-decision evidence. Therefore, the provider has an opportunity to make positive changes and improvements in the service and to reflect them in the appeal submissions. It is for this reason that providers must not underestimate the amount of work that goes into an appeal. Lodging of the appeal can involve a lengthy response to the concerns raised by the CQC in the notice of appeal, along with documentary evidence showing the current position of the service.
As the case progresses there will be the exchange of witness statements, agreeing the hearing bundle, responding to CQC’s evidence and agreeing of the case summary. Each of these stages being an opportunity for the provider to illustrate to the Tribunal that the service is not as described by the CQC in the Notice of Decision. Each stage is timetabled by the Tribunal Judge and deadlines must be met. The process often involves analysis of fine detail with masses of documentary evidence.
There may also be the opportunity to showcase improvements in a re-inspection. Usually the evidence relied on by the CQC in its Notice of Proposal and Notice of Decision has become out of date and obsolete, furthermore, the CQC may wish to check whether what the provider has said in their appeal is accurate. The re-inspection of the service could lead to the end of the Tribunal proceedings if it is considered that sufficient action/improvement has been made. It is important to maximise the opportunity at the stage of lodging an appeal (as well as submitting representations against a Notice of Proposal) as the strength of those submissions can trigger a re-inspection, which, if positive, can lead to a Consent Order disposing of the appeal.
It can take between 6 to 9 months from launching the appeal, for a case to reach final hearing. The Tribunal considers evidence presented by each side and makes a decision based on the current position of the service whether enforcement action should take effect or not. Whilst it may be hoped that the appeal never gets to a final hearing because the strength of the appeal lodged with supporting evidence persuades the CQC to stop the enforcement action, the provider must be prepared for it to go all the way.
There is also the knock on effect of the appeal process, which involves the CQC often sharing information with commissioners about proposed enforcement action, leading to commissioners taking their own action, such as placing embargoes on the service. Our lawyers are able to take a strategic approach in dealing with both the CQC and commissioners simultaneously.
It is essential that providers seek specialist legal advice as early as possible and not let an opportunity to fight for their business pass them by. Ridouts is alive to the severe financial consequences, as well as the devastating effect on staff and service users that CQC enforcement action can have. Our clients are able to concentrate on running their services during this period relying on their lawyers to manage proceedings, deadlines and strategy.