Responding to CQC registration action

The Care Quality Commission (CQC) is continuing to take enforcement action against registered care providers, including proposals to cancel registrations. For providers, understanding the process and how to respond is key.

The CQC has the power to issue a Notice of Proposal to cancel a provider’s registration. These are issued under section 26 of the Health and Social Care Act 2008 and are, as the name suggests, a proposal only. A provider has 28 days from the deemed date of service to make representations as to why the Notice of Proposal shouldn’t be adopted.

The CQC will then consider those representations and issue a Notice of Decision, either adopting the Notice of Proposal (if your representations haven’t been successful) or deciding not to adopt it (if your representations have been successful and the enforcement action comes to an end).

At present, the average time it takes the CQC to issue a Notice of Decision is 60 working days (around three months) from the date it receives representations. If a provider takes the full 28 days to respond to the Notice of Proposal, which is often necessary for tactical reasons, at least four months will have passed since the Notice of Proposal was issued. In many cases, the Notice of Proposal itself is issued several weeks after an inspection.

It’s important to remember that it’s established law that the CQC (and the First-tier Tribunal, if the matter proceeds to a full court hearing) should consider the position of the home or provider at the time it makes its decision. In practice, this often means the CQC is assessing a position more than four months after the inspection that gave rise to the Notice of Proposal.

In many cases, the CQC doesn’t revisit the home or provider before issuing a Notice of Decision. While there’s no legal obligation for it to do so, this means the most up-to-date evidence available is often that submitted by the provider as part of its representations. Even then, many weeks or months may have passed since the provider submitted that evidence and before the Notice of Decision is issued. Significant improvements can be made during this period, so it’s concerning that the CQC is choosing not to check the current position, particularly if it chooses to reject the provider’s evidence.

This is why it’s essential for providers to put forward well-considered, thorough and robustly evidenced representations. These should consider whether the CQC’s evidence is factually accurate, proportionate and properly supported, and demonstrate what changes or improvements the provider has made on points of concern since the inspection.

While the burden of proof remains with the CQC to demonstrate non-compliance with the regulations, providers can’t afford to sit back and do nothing. The strongest position is to show that meaningful steps have been taken to address areas of concern, and that these are in place, being followed and are working.

Careful thought should be given to how evidence is presented to the CQC. Legal input can be invaluable in ensuring that evidence clearly addresses the allegations, links to the relevant regulations and focuses on the strongest points.

The CQC aims to ensure ratings are contemporaneous, and this should extend to decisions about enforcement action. Without up-to-date evidence, it’s difficult to assess whether enforcement action proposed months earlier remains reasonable and proportionate.

The CQC is currently under a lot of pressure. Although it’s increasing the number of assessments and inspections it’s carrying out, this is to improve outdated ratings that providers have sat with for many years. Where the CQC chooses to take serious enforcement action, it must ensure it has the resources to do so fairly and thoroughly.

Where providers find themselves in this position, they should ensure their case is prepared to the highest possible standard. This not only strengthens their position but also makes it more difficult for the CQC to reject their evidence, especially where it isn’t prepared to come and take a second look itself.