CQC defence lawyers case studies

Our specialist CQC lawyers have gained an excellent reputation for providing high quality advice and representation to businesses and individuals in the health and adult social care sectors, particularly in relation to challenging decisions, inspection reports and ratings issued by the Care Quality Commission (CQC).            

We pride ourselves on achieving the best possible results for our clients and have achieved successful outcomes for numerous clients nationwide. Our team has specialist experience of dealing with a wide range of cases including factual accuracy challenges, ratings reviews, criminal investigations and prosecutions, enforcement action and appeals to the first tier tribunal (care standards).

The following cases provide a brief overview of our experience in this area. If you would like to discuss your case, please contact our specialist lawyers on 0203 816 9274 without delay.

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Challenging inspection reports and ratings

CQC factual accuracy challenge / notice of proposal to impose conditions

Our specialist lawyers represented a domiciliary care provider whose overall rating had dropped from ‘good’ to ‘inadequate’ following a comprehensive inspection by the CQC. As a result of their findings from this inspection, our client was also issued with a notice of proposal to impose conditions on their registration, which prohibited them from providing personal care to any new service user without the CQC’s prior written agreement and required them to provide monthly reports on late and missed care calls.

Our specialist lawyers were instructed to challenge the factual accuracy of the draft inspection report arising from this inspection and to draft detailed representations against the notice of proposal to invite the CQC to withdraw their proposal in light of the inaccurate findings. Our representations sought to contest the accuracy of some of the CQC’s findings and request that the report be withheld from publication pending a further inspection, on the grounds that it would be disproportionate and demonstrably wrong and misleading (as per R (On the Application of SSP Health Limited v Care Quality Commission [2016] EWHC 2086 (Admin)) for the CQC to publish the draft report.

This argument was made on the basis that, after some investigation, it was established that one whole section of the draft inspection report related to a recent inspection of another registered provider, which had been conducted by the same CQC inspector. This cast significant doubt on the accuracy and completeness of the inspector’s overall findings in each other domain. In addition, we submitted that the inspector had not always exercised appropriate professional judgment when carrying out their key lines of enquiry. In particular, there was insufficient consideration and inaccurate analysis of evidence available to the inspector on the day of the inspection throughout the report and repeated references to the inspector’s own personal opinions, all of which contravened the CQC’s own policies and procedures.

After consideration of our factual accuracy comments, the CQC acknowledged the inaccuracies within their draft inspection report; they agreed to conduct another inspection immediately and withhold publication of the factually inaccurate report. In light of this, the CQC also agreed to withdraw its notice of proposal and our client’s registration therefore remained free from any conditions.

Factual accuracy challenge – increase in ratings

Our specialist lawyers were instructed to draft factual accuracy comments for a residential care home following a comprehensive inspection, which saw the home’s ratings drop from an overall ‘outstanding’, consisting of three ‘outstanding’ and two ‘good’ ratings, to three ‘requires improvement’ ratings and two ‘good’. The CQC stated within the draft report that the provider was in breach of regulations 12 and 15 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

Not only were there numerous typographical errors, but there were also a number of factually inaccurate statements throughout the report and missing references to positive aspects of the service. Our lawyers therefore made robust comments, supported by documentary evidence, to demonstrate that the CQC inspector had in some circumstances failed to follow the appropriate key lines of enquiry and consider all evidence relevant to the judgments and ratings.

After considering our factual accuracy comments, the CQC agreed to make a number of changes to the published report. In particular, the CQC agreed to remove the breaches of regulation based on the evidence and submissions put forward during the factual accuracy process and instead, noted these as recommendations to encourage improvement. This also led to an increase in ratings in one of the domains from ‘requires improvement’ to ‘good’.

Ratings review

Our specialist lawyers represented a registered provider of a home care service which has been rated overall as ‘requires improvement’ following a comprehensive inspection. After an unsuccessful attempt to challenge the factual accuracy of the report and the resulting ratings, the provider instructed our lawyers to make a ratings review request on their behalf.

Our lawyers made representations to the CQC challenging the ratings of ‘requires improvement’ for the ‘safe’ and ‘well-led’ domains on the ground that the CQC had failed to follow their own published processes. It was clear in this case that the inspector did not have a sufficient understanding of how a home care service operated and this had led them to make inaccurate conclusions upon which they based their ratings decisions in these domains. All other ratings within the report were ‘good’.

After considering our request, the CQC decided to withdraw the inspection report from publication and carry out a fresh inspection by a different inspector. This inspection resulted in the service being rated as ‘good’ in all areas. 

Criminal investigations and prosecutions by the CQC

Allegations of carrying out personal care without registration

Our specialist lawyers represented an individual who was 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.

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. 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 £1,600.00.

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 £160.00 following our submissions on our client’s financial circumstances; health; and ability to pay.

Allegations of failing to notify the CQC of specified incidents (DoLS authorisations)

Our specialist lawyers represented a care home provider who had received a letter from the CQC alleging that they had grounds to suspect that our client had committed the offence of failing without delay to notify the commission of incidents specified in Regulation 18(5) of the Care Quality Commission (Registration) Regulations 2009. It was alleged that, during a comprehensive inspection, CQC inspectors found that there were six people who were subject to a DoLS authorisation, which had not been notified to the CQC.

Our specialist lawyers submitted a detailed and robust written response to the CQC on behalf of our client, supported by the appropriate evidence and submissions in respect of the CQC’s prosecution criteria. Following the consideration of our submissions, the CQC determined that there was not a realistic prospect of conviction in this case and therefore decided to take no further action against our client.

Allegations of failing without delay to notify the CQC (allegations of abuse)

Our specialist lawyers represented an adult social care provider who had been accused of committing the offence of failing without delay to notify the commission of an incident specified in regulation 18(2) of the Care Quality Commission (Registration) Regulations 2009. The CQC alleged that four incidents had occurred at the service, which gave rise to allegations of abuse and the CQC had not received a statutory notification in respect of these incidents.

Our lawyers submitted detailed representations to the CQC, querying the need for a statutory notifications in respect of some of the incidents and acknowledging the reasons why other notifications were not made. Substantial mitigation was put forward, including evidence of the safeguarding procedures in place at the service; the Registered Manager’s substantial experience and training; and the service’s positive compliance and inspection history. It was further submitted that there would be no real public interest in pursuing any further action this provider in all the circumstances.

After considering these representations, the CQC confirmed that they would not be taking any further action as they were satisfied that the provider was complying with Regulation 18(2) and it would therefore not be in the public interest to pursue a prosecution.

Allegations of providing personal care without registration

Our specialist lawyers represented the directors of a homecare 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. The CQC alleged that the agency had been providing the regulated activity of ‘personal care’ without the appropriate CQC registration. It was alleged that the agency were therefore committing a criminal offence contrary to Section 10 of the Health and Social Care Act (HSCA) 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 homecare agency was subsequently registered as a service provider with the CQC.

Allegations of carrying out surgical procedures without registration

Our specialist lawyers represented a doctor who was being investigated by the CQC for carrying out the regulated activity of ‘surgical procedures’ without registration contrary to Section 10 of the HSCA 2008. The doctor had been operating a private clinic from the medical centre at which he was a partner. The medical centre was registered as a service provider with the CQC.

The CQC discovered the doctor’s private clinic during a visit to the medical centre to carry out an unannounced inspection. The doctor had mistakenly believed that the clinic was covered by the medical centre’s registration. However, the CQC advised the doctor that they were carrying out a regulated activity which required individual registration. The doctor therefore submitted an application for registration in respect of that separate regulated activity immediately.

The CQC commenced a criminal investigation against the doctor and invited the doctor to an interview under caution. Following our representation at the interview and subsequent written submissions, the CQC issued the doctor with a fixed penalty notice for £4,000. This avoided a criminal prosecution and the doctor therefore did not receive a criminal record. The CQC also approved the doctor’s registration in respect of this regulated activity.

Allegations of failing without delay to notify the CQC of specified incidents

Our specialist lawyers represented a care home provider who had received two letters from the CQC alleging that they had grounds to suspect that our client had committed two offences. The first offence was failing without delay to notify the commission of incidents specified in regulation 18(5) of the Care Quality Commission (Registration) Regulations 2009, namely that they had failed to notify the CQC of four separate incidents in which four residents sustained injuries, such as fractured hips and head wounds. The second offence was failing without delay to notify the CQC of the death of a service user under regulation 16 of the 2009 regulations. It was alleged that our client had failed to notify the CQC of nine service user deaths over a period of ten months.

Our specialist lawyers submitted a written response to the CQC on behalf of our clients, admitting the offence and putting forward the appropriate mitigation, together with robust submissions on why a prosecution was not proportionate or in the public interest in this case. Following the consideration of our submissions, the CQC decided not to prosecute our clients and instead, issued our client with a fixed penalty notice of £1,250 in respect of each offence.

Civil Enforcement Action

Notice of proposal to refuse registration

Our specialist lawyers represented a specialist independent provider of services for adults with learning disabilities and associated developmental impairments, who had made an application to the CQC to register as a service provider of the regulated activity: accommodation for persons who require nursing or personal care. It was their intention to provide accommodation for up to six people in a community setting (rather than a hospital setting) to those with learning disabilities in crisis.

Following the submission of their application, the CQC issued them with a notice of proposal to refuse their registration. One of the grounds for this refusal was that this service had been developed as part of a ‘campus style’ development or congregate setting, rather than a small local community-based setting with its own staff and separate facilities. The CQC stated that this was in direct contravention of its own guidance, “registering the right support”, as well as other publications such as, ‘The Mansell Report’ (October 2007) and The Department of Health report, “Transforming care: A national response to Winterbourne View Hospital” (December 2012).

Our lawyers were instructed on behalf of the company to draft detailed representations against this Notice to invite the CQC not to adopt their proposal and instead, register the service. Our representations sought to apply the relevant guidance; case law; definitions; and reports to demonstrate that the proposed service did not constitute a campus style or congregate setting and provide evidence of the extensive involvement of service users and their representatives in the design of the service. After consideration of these representations, and recent case law on this matter, the CQC agreed to register the company to provide this regulated activity.

Notice of proposal to cancel registration

Our specialist lawyers represented a provider of residential accommodation for people with learning disabilities, who had been issued with a Notice of Proposal to cancel their registration as a service provider under section 26(4)(a) of the HSCA 2008 in respect of the regulated activity: ‘accommodation for persons who require nursing or personal care’.

The CQC alleged that it had identified a number breaches of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 during an inspection and found that the provider had ‘failed to take reasonable steps to address those breaches’ at a subsequent focused inspection.

The provider had 28 days to make representations against the notice of proposal. Our lawyers made careful and detailed representations on the provider’s behalf, persuading the CQC to review the position of the service once the provider was able to implement the improvements outlined in their updated action plan, with the assistance of a specialist care consultant.

The CQC agreed to our proposal and inspected the service around three months later. Having noted significant improvements within the service at that inspection, the CQC agreed to withdraw their notice of proposal and the service’s registration was allowed to continue without restriction.

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Appeals to the first-tier tribunal (care standards)

Appeal against notice of decision to vary registration (final hearing)

Our specialist lawyers acted for a large company, who owned multiple care home locations registered by the CQC. Our lawyers were instructed to appeal against the CQC’s notice of decision to vary the company’s registration to remove one of the locations from which it was authorised to carry out regulated activities. This notice had been issued on the basis that several breaches of the 2014 regulations were identified following a comprehensive inspection the company’s previous enforcement action and inspection history, and the absence of a registered manager at the location.

An appeal was lodged to the first-tier tribunal (care standards chamber) on behalf of the company on the basis that improvements had been, and continued to be, made since the last inspection and a new acting manager had been appointed. There were a total of nine witnesses between the parties, seven of which were called to give live evidence. A final hearing was listed for three days but this hearing went part heard and was listed a further two days due to the amount of witness evidence and a late and unsuccessful application by the CQC to adjourn the hearing.

On the first day of the resumed hearing, a number of legal issues arose which prevented the hearing from proceeding. The first issue was in relation to the registration of the current acting manager of the location. The acting manager had submitted an application to the CQC to register as manager and their fit person interview was arranged for a date prior to the resumed hearing. This registration was a substantial part of the company’s appeal and key to the issues in dispute. However, the CQC rearranged the fit person interview until after the resumed hearing, undermining the company’s position in their appeal and providing an unfair advantage to the CQC.

Prior to the resumed hearing, the CQC had also carried out a further inspection, however, they had only served additional evidence relating to this inspection immediately prior to the resumed hearing, without any prior notice or permission from the tribunal. The evidence contained the inspector’s findings from the new inspection, which had not been through the CQC’s internal quality assurance stages or factual accuracy process. Our lawyers therefore objected to this evidence being allowed in the appeal.

After considering lengthy submissions from both parties, the panel ordered that the hearing be adjourned to allow for the inspection report to be finalised and to afford the company an opportunity to submit further evidence in response to this inspection. The panel also requested that the fit person interview to take place and that this be undertaken by another registration inspector outside of the company’s region to avoid any perceived bias. The hearing was also re-listed for two months’ time.

However, prior to the next hearing, and after further negotiations and the submission of additional evidence by our specialist lawyers, the CQC issued their decision to register the acting manager and a further inspection of the location was undertaken by the CQC which noted further improvements. As a result of this, the CQC agreed to withdraw their opposition to the appeal and the appeal was allowed.

Appeal against notice of decision to cancel registration (stay of proceedings)

Our specialist lawyers represented a nursing home in an appeal against the CQC’s notice of decision to cancel their registration as a service provider to the first-tier tribunal (health, education and social care chamber).

The CQC alleged multiple breaches of the 2014 regulations. The service had received several overall ratings of ‘inadequate’ and the CQC was not satisfied that sufficient improvements had been made at the time of issuing their notice of decision.

The provider instructed a specialist care consultant and employed a new registered manager to assist them in implementing the necessary changes to achieve compliance. The provider also implemented better quality monitoring systems, provided greater training for staff and completed an overhaul of its care planning systems to ensure compliance in the future.

Following a further inspection after the appeal was lodged, our lawyers negotiated a three month extension to the CQC’s response to the appeal. This enabled the provider to implement the final, necessary improvements within the service before the CQC carried out a further inspection.

At the next inspection, the CQC found that the service had improved. Subsequently, the provider met with the CQC in order to discuss the findings of the inspection and to agree an action plan which addressed the areas of the service that still required improvement. The CQC therefore agreed to withdraw their notice of decision to cancel the provider’s registration.

Appeal against notice of decision to cancel registration (sale of a care home)

Our specialist lawyers represented a residential care home in an appeal against the CQC’s notice of decision to cancel its registration as a service provider to the first-tier tribunal (health, education and social care chamber).

The provider was in the process of selling the home when the CQC issued their notice of decision. As such, it was vital for the provider to maintain its registration in the interim to ensure that the home remained a viable business option to prospective buyers and that all residents were able to remain at the home in the meantime.

Our lawyers represented the provider at a ‘Telephone and Case Management Hearing’ (TCMH) with the judge in which a stay of proceedings with the CQC was granted, enabling the provider to finalise the sale of the service. On completion of the sale, our client withdrew their appeal and the CQC approved the buyer’s application for registration.

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