A recent prosecution brought by the Care Quality Commission (CQC) against an unregistered provider has further highlighted a serious gap in the legislation concerning the regulation of unregistered services.
On 10 June 2020, the owners of a homecare business appeared before Portsmouth Magistrates Court and pleaded guilty to carrying out the regulated activity of personal care without the required CQC registration, which is a criminal offence under Section 10 of the Health and Social Care Act 2008.
In a press release issued by the CQC on 12 June 2020, it is stated that the court heard that the homecare business had been providing personal care to six people in their homes since 2 March 2015. It is further stated that the CQC had contacted the homecare business from October 2017 to September 2019 about the fact that they were not registered. Whilst it is stated that the directors made a number of attempts to register with the CQC, it is understood that their applications submitted between November 2018 and June 2019 were rejected due to incompleteness. On receipt of a further subsequent application, a decision was finally made by the CQC to refuse their registration on the basis that they did not meet the standards required.
During this period, the homecare business continued to operate and it is reported that a registration visit was undertaken by the CQC in May 2018, which found a number of concerns relating to a “lack of training for staff, unsafe medicines practices and lack of governance systems, processes and understanding of the regulations and requirements of a registered manager”.
However, the current legislation only permits the CQC to take enforcement action, both civil and criminal, against registered providers and managers. This means that the CQC had no power to close down the homecare service, or prosecute the directors or manager for a breach of the fundamental standards outlined in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
The District Judge ordered that the directors pay a fine of £34,833, as well as a victim surcharge of £170 and costs of £9,000. In his judgment, the District Judge stated:
“I was surprised to learn that the CQC only has power to issue such notices and/or prosecute such cases if the business is registered. If the business is not registered, then the only action the CQC can take is to prosecute under section 10 of the Act. If that is indeed the case, then it appears to me that it exposes a very serious gap in the law designed to protect vulnerable people from the risk of harm.”
This is just one of many prosecutions brought by the CQC in recent years against unregistered homecare providers, which reflects the CQC’s increasing use of their prosecution powers. The CQC reported in their Annual Report for 2018/2019 that they had issued 211 criminal actions in 2018/2019, compared to 159 criminal actions in 2017/2018, which is a notable increase of 33%.
In June 2019, the sole director and manager of an unregistered domiciliary care service were prosecuted by the CQC and pleaded guilty to the offence of carrying out a regulated activity without registration at Basingstoke Magistrates’ Court. The director was ordered to pay a fine of £1,100, plus costs of £4,000 and the manager was fined £660 plus £4,000 costs.
In September 2019, two companies, who were also prosecuted for the same offence for providing personal care without registration with the CQC and each provider was fined £4,000 each.
Joyce Frederick, Deputy Chief Inspector of Registration, emphasised the importance of obtaining CQC registration in a press release issued by the CQC in September 2019: "The law requires all care agencies to register with the Care Quality Commission. This then ensures that all registered providers are then subject to a system of monitoring and ongoing inspection to make sure that standards are being maintained.
Providers of personal care services deal with people whose circumstances can make them vulnerable, and who may not be able to report abuse or poor care. We do not hesitate to take further action to protect people from providers who ignore the requirements of the law."
The importance of determining whether you require registration with the CQC is therefore clear and where you are unsure about whether you fall within the scope of registration, it is pertinent that you seek specialist advice as soon as possible to protect yourself from a criminal prosecution.
Whilst there is still clearly a gap in the legislation at present, unregistered providers need to be mindful that, by continuing to carry out a regulated activity after notification of their requirement to register with the CQC, they are knowingly carrying out a criminal offence thereafter. This continued unregulated activity may be considered as an aggravated factor in a prosecution pursued under Section 10 of the Health and Social Care Act 2008 and could lead to a much larger fine. However, at present and until the law changes, it is clear that the CQC have no power to use their civil or criminal enforcement powers to close down or prosecute an unregistered provider for failing to meet the required standards prior to registration.
At Stephensons, we have a specialist team of CQC lawyers who regularly advise care providers and managers nationwide in relation to registration; criminal investigations and prosecutions; and interviews under caution with the CQC. If you require any advice or assistance, please contact us now on 0161 696 6250.