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Personal care - the requirement to register and when it goes wrong

View profile for Laura Hannah
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Healthwatch releases report of findings following two year analysis of home care services in England

A regulated activity is defined as “an activity which involves, or is connected with, the provision of health or social care in, or in relation to, England." Activities which are considered to be connected with the provision of health or social care include:

(a)        the supply of staff who are to provide such care

(b)        the provision of transport or accommodation for those who require such care

(c)        the provision of advice in respect of such care

The various regulated activities and the definitions of those activities are contained in schedule 1 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. There is a legal requirement to register as a service provider with the CQC where a regulated activity is being carried out and as such, it is a criminal offence to carry out a regulated activity without being registered under Section 10(1) of the Health and Social Care Act 2008. This offence can be dealt with by the Magistrates or Crown Court and if found guilty, the court can impose an unlimited fine and/or a sentence of up to 12 months imprisonment.

The importance of determining whether you require registration with the CQC is therefore clear, and failing to establish whether you fall within the scope of registration is your responsibility. There is often a very fine line between what is and is not considered to be a regulated activity and this is often the case when considering whether the regulated activity of ‘personal care’ is being provided. Specialist advice is therefore almost always advisable to ensure that you protect yourself from any criminal action.

What is personal care?

‘Personal care’ is described in the CQC’s ‘the scope of registration’ document dated March 2015, as: “…the provision of personal care for people who are unable to provide it for themselves, because of old age, illness or disability, and which is provided to them in the place where those people are living at the time when the care is provided. As an example, this includes personal care provided by a domiciliary care agency.”

That document sets out a decision tree to assist in establishing whether personal care is being carried out. This confirms that a service requires CQC registration if the following apply:

The service:

i.  involves the provision of personal care

ii.  is provided to someone who needs it because of old age, illness or disability

iii.  is provided in their home or place where they are currently living

iv.  is provided as a complete service in its own right

v.   is directed and controlled by the provider

Broadly speaking, a person will most likely fall within the definition of carrying out ‘personal care’ where care is provided to an elderly, ill or disabled person in their own home; that care is not provided by that person but another person on their behalf (such as an employee); and the payment for that care service is not received directly from the service user, but via another person or the local authority (so that the service user has no direct control over the payment). However, each case should be considered on its own facts and where it is unclear, specialist legal advice should be obtained to ensure that you are operating within the law.

Where the CQC suspect an individual of committing a criminal offence under Section 10, they will often write to the individual confirming their suspicion and provide them with three options, namely:

  1. apply to CQC for registration
  2. stop carrying on the regulated activity
  3. make written representations about why you do not need to be registered.

Where the individual concerned makes no response; does not apply to register with the CQC or continues to carry out the regulated activity, the CQC will assess whether it is proportionate and in the public interest to prosecute the individual in the criminal courts. Over recent years, we have seen an increase in the number of prosecutions instigated by the CQC and it is clear that the CQC are cracking down on any unregistered activity.

Recent prosecutions

By way of an example, our specialist lawyers recently represented an individual who was being prosecuted by the CQC for carrying out the regulated activity of personal care pursuant to Section 10 of the Health and Social Care Act 2008. Our client was providing domiciliary care to approximately 11 elderly service users in their homes and had employed three care staff to assist in providing this care. As such, they fell within the scope of CQC registration and were committing a criminal offence without such registration.

Our client entered a guilty plea at the first opportunity at the Magistrates’ Court and our CQC defence lawyers were subsequently instructed to assist with the sentencing hearing in May 2019. By way of mitigating circumstances, our client had vast experience in the care sector, having worked as a carer for many years as well as a manager of a care home prior to starting this domiciliary care service. Our client had also not experienced any previous complaints or concerns from service users, GPs or the local authority, nor was there any evidence that any harm had been caused to any service users throughout their career and evidence was further provided to demonstrate our client’s compliance with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. In addition, submissions were made to the fact that our client had been genuinely unaware of the registration requirements and had unknowingly committed this criminal offence.

Whilst our client did initially apply for registration with the CQC during these proceedings, our client later took the decision to cease employing any care staff and began providing the care directly to service users themselves, which brought them outside the scope of CQC registration.

In line with the sentencing guidelines, our client was at risk of receiving an unlimited fine, a term of imprisonment not exceeding 12 months, or both. At the sentencing hearing, taking into account our client’s reduction in income and providing maximum credit for an early guilty plea, the Magistrates’ Court imposed a fine of £1,600.

The CQC sought to recover costs in excess of £6,200, however, the court limited these costs to a sum of £4,500 and a victim surcharge totalling £160 following our submissions on our client’s financial circumstances, health, and ability to pay.

More recently, the CQC prosecuted another company director and a manager who were found to be illegally providing domiciliary care services by carrying out personal care without registration for two people over a period of around 14 months. As they were not registered, the CQC had not been able to carry out any monitoring or inspection of their domiciliary care service throughout this time and as such, no checks were made on the safety of the care provided to those two people. At Southampton Magistrates’ Court in June 2017, the company director was ordered to pay a fine of £660 and £4,000 costs, a total of £4,660. The manager was also ordered to pay fine of £1,100 and £4,000 costs, a total of £5,100.

These are just two examples of the proactive approach the CQC is now taking to prosecute unregistered providers and the financial penalties paid. However, whilst the defendants in these two cases did not face a prison sentence, this is still within the court’s sentencing powers and is a realistic possibility for anyone who knowingly continues to carry out regulated activities, such as personal care, without registration over a prolonged period of time with no regard to the requirement to register with the CQC.

What should I do if I am carrying out a regulated activity without registration?

The key to minimising any potential criminal enforcement action or prosecution by the CQC is by ensuring that early and prompt action is taken to rectify any genuine error as quickly as possible. If you are unsure whether you require registration, you should cease all services whilst you seek specialist legal advice and if required, until you receive your CQC registration. Where regulated activities have been undertaken for some time without registration, it is important that any responses you make to the CQC are carefully drafted and considered to mitigate any potential action and proactive steps are taken to rectify this in a reasonable and timely manner.

Our specialist lawyers previously represented the directors of a home care agency, who had been assisting with and supervising the provision of physical and domestic activities for vulnerable adults. Upon applying for registration as a service provider with the CQC, our clients were invited to attend an interview under caution as the directors of the company on the basis that they had been providing the regulated activity of ‘personal care’ without the appropriate CQC registration prior to their application. It was alleged that the agency were therefore committing a criminal offence contrary to Section 10 of the Health and Social Care Act 2008.

Following our representation at the interview under caution, and further written submissions, the CQC decided to take no further action against our clients and the home care agency was subsequently registered as a service provider with the CQC. In this case, their prompt action to apply for registration as soon as they realised their error and their engagement and cooperation with the CQC throughout the criminal investigation and registration process, resulted in a positive outcome and no prosecution resulting in a hefty fine and costs.

At Stephensons, we have a specialist team of CQC lawyers who regularly assist care providers and managers nationwide in relation to criminal enforcement actioninvestigations, interviews under caution and prosecutions by the CQC. If you require any advice or assistance, please contact us now on 01616 966 229.