Providers will know that holding registration allows you to operate a service. Very simple, but what happens if you want to run two, or more services?
When the Health and Social Care Act 2008 (the Act) was passed, this allowed a Provider to hold a single registration, but operate multiple services. These additional locations are listed as ‘conditions’ on the registration. This initially seems like a positive solution, but what many Providers do not realise is that the Act also gives the CQC an immediate and potentially devastating power.
Section 31 of the 2008 Act sets out an “Urgent Procedure” for CQC to vary any condition on the Provider’s registration. While most would recognise this as imposing an embargo on admissions or imposing restrictive reporting conditions; what this also allows the CQC to do is remove a location from the registration. Not only does this effectively close the home, it does so with an immediate effect.
Contrast this with a Provider who holds a single service registration. In order to close any service, in that circumstance the CQC must (1) apply to the Court and (2) demonstrate that there is “a serious risk to a person's life, health or well-being.” Under section 31 (where there is more than one service) and what is concerning, is that the test for the CQC removing a location is a low threshold: “has reasonable cause to believe that unless it acts under this section any person will or may be exposed to the risk of harm”. This seems strange given the effect of either utilising either section is effectively the same.
This means that a Provider who runs more than one service, and who had an inspection which raises concerns, is at serious risk of the CQC finding that a service user may be exposed to harm – could be closed immediately and without notice. If this happens, the Provider has no statutory means of challenging or appealing the decision until after it has taken effect. In addition, the Provider is immediately at difficulty of demonstrating they are acting in accordance with the Regulations as there are no Service Users remaining at the home.
Markel Law recently represented a Provider who faced this very challenge. In early December 2018 the CQC issued an Urgent Notice of Decision to remove a location from a Provider’s registration. The same day, the process began for all service users to be relocated. Given the CQC’s powers, it became immediately unlawful for the Provider to carry on the regulated activity even though they wished to Appeal.
This Provider had been operating services since 1998. The other service, not the subject of the Notice was rated as ‘Good’. The service that was the subject of the Notice had been rated as ‘Good’ within 18 months prior to the Notice. CQC raised concerns a mere 2 weeks before the impact of a closure occurred. An Appeal was lodged at the First Tier Tribunal and the hearing has taken place. While the final decision is awaited, it is clear that the initial impact has already been substantial and the home hasn’t operated since early December 2018.
Markel Law has an experienced team of solicitors who can assist with both Criminal and Regulatory action by the CQC.
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