Caroline Barker, Chief Operating Officer, Solicitor at Ridouts, offers advice on how to contest a registration cancellation.
It can happen and does happen. The CQC can cancel your registration. It could be one location, it could be your entire registration. The CQC might stop you from trading by a number of means: asking a magistrate court to cancel your registration with immediate effect; serving a piece of paper on you urgently which removes your ability to carry on the service(s) immediately; or issuing what is known as a Notice of Proposal to cancel your registration or vary your conditions and remove a location that way.
Whatever means they use, the fact that the CQC seeks to cancel your registration does not mean that it is a foregone conclusion. You have the ability to contest this action and should do so at the earliest opportunity.
Whilst there are a number of ways that the CQC can cancel your registration, when the CQC is not taking urgent action, it will serve a Notice of Proposal to cancel or vary your registration. In this case, as the name suggests, it is a proposal only. You have opportunity to challenge the action that the CQC is seeking to take. For information on urgent cancellation proceedings please see here.
The first opportunity to challenge the proposal is after you receive the Notice of Proposal (NOP). You have 28 days from the date the NOP is served on you. It is important to know when your first submission must be made as it is a statutory deadline which cannot be moved and to miss it means your first opportunity to stop this action will have passed. There are nuances around when the NOP is actually deemed to have been served so it’s important to check the legal position on that.
You should use this 28 days to put together thorough and robust representations about why the proposal should not take effect. The first step is to understand the CQC’s case. The CQC can seek to cancel your registration under the NOP method where it has evidence that the regulated activity/activities you are registered for is not currently being, or at any time has not been, carried on in accordance with the relevant regulations. Most NOPs are issued on the basis of a deemed current non-compliance but the CQC will use your regulatory history to bolster its position on why your registration should be cancelled – essentially you are a provider that cannot be trusted to run a service. This is why when any regulatory action is taken by the CQC, be it regulatory breaches in an inspection report, a warning notice is issued or simply the CQC saying that you are not doing something to the standard required, if it is not true then you should seek to put your position forward to the CQC, otherwise it becomes the accepted truth and will be used against you at a later date.
The CQC have to base their evidence on the legal requirements of the regulations. This means that your representations should do the same, linked to evidence that demonstrates either why the CQC’s position is wrong to start with or, why it is wrong now. It is important to remember that when decisions in this process are made, that the position of the service at the time the decision is made should be considered. That is the established test.
This means that you have opportunities to make positive changes and improvements that can be reflected within your representations. Seeking legal advice at the earliest opportunity enables a strategy to be developed between yourself and your legal team on approach and to understand what the strongest position that could be put forward to the CQC might be. The operational changes, coupled with the legal arguments, complement each other, strengthening your position.
Often, upon receipt of your representations and before issuing a decision, the CQC will re-inspect your service (although this is not guaranteed). This enables the CQC to check whether what you have said in your representations is accurate. If it considers that sufficient action/improvement has been taken, it can lead to the process ending there. This is why it is so important that the opportunity to put forward your position at this first stage is maximised. Since the start of 2020 to the date of this article, Ridouts has successfully defended 100% of NOP’s it has been instructed on that CQC have responded to.
In some cases, the CQC will not be in agreement with you about the representations you made. If they deem it necessary, they will continue with the proposed action and issue what is known as a Notice of Decision, affirming the proposal and the action it seeks to take.
However, this does not mean that your registration will be cancelled at this stage. Now you have the opportunity to lodge an appeal with an independent tribunal called the First-Tier Tribunal (Care Standards). The decision making duty is passed from the CQC to the Tribunal. Again, you have 28 days from the date the decision is deemed to have been served on you to lodge your appeal, after which court proceedings are entered into which requires making legal submissions, liaising with and appearing before a judge, and preparing your evidence, including taking witness statements and responding and reacting to the evidence put forward from the CQC. It can become very detail driven with evidence running to thousands of pages with deadlines to meet along the way.
As noted above, any decision maker in this type of case has to consider the position of the home/provider at the date the decision is taken. The same applies to the Tribunal at the final hearing. However, these are often dynamic situations with cases on both sides developing as time progresses. There is often opportunity along the way to negotiate with the CQC to reach a conclusion that is satisfactory to both sides. At Ridouts we have seen that the CQC has withdrawn its opposition after robust evidence has been presented as part of the appeal that demonstrates that the legal requirements have and are being met. Also the CQC has offered to impose conditions on a provider’s registration instead of pursuing the cancellation. Much turns on the individual facts of each case but there can be opportunity to compromise the matter without reaching a full contested hearing. Your legal team can do this whilst you concentrate on running your service, after all the day job doesn’t go away.
Of course, some cases do proceed to a full hearing at the Tribunal. Here, the Tribunal considers the evidence of both sides and will make a decision on whether the cancellation should take effect or not.
Assuming that you take each opportunity to challenge the CQC, the entire process from the initial serving of the NOP to the full tribunal hearing can take between six and nine months. Whilst this is an unsettling period this gives you time to strengthen your service and take action where it is needed. Of course, the action that the CQC seeks to take can have a knock-on effect. Whilst the CQC should not make public the fact that it is proposing to cancel your registration, it will usually share this information with your commissioners which can lead to, not only embargoes being placed on your service but also service users being removed, almost in anticipation of closure. This can have the effect of closing the home as services start to become financially non-viable. At Ridouts we have helped providers in this situation and provided solutions to help resist this action being taken. Commissioner action can, of course, generate questions being raised by families, and most NOPs follow a poor inspection, which can often be picked up by local media. All this can add to the strain of the situation but working together, you and your legal adviser can take a strategic approach and engage in the necessary discussions or actions that might be required to protect your business.
Whilst it is for the CQC to prove that you are not complying with the regulations, you cannot live in hope that the CQC fails to do so. Early engagement with the process, and establishing a plan based on the issues at hand can help you to gain control over the unfolding events. Understanding the legal basis for the action can help inform the operational action that you might need to take. Demonstrating that action, and how that addresses the alleged failures to comply with the legislation, will enable you to put forward your strongest position and give you the best possible chance of retaining your registration.
Between 1 January 2016 and 18 December 2019, Ridouts was the only law firm to have successfully appealed a CQC decision at Tribunal during this period. Ridouts is well placed to advise you if you receive a Notice of Proposal or a Notice of Decision. Call 0207 317 0340 to talk to us.