Re-registration under the Health and Social Care Act

Ridouts Law

The Options

The 1 October 2010 is approaching fast and CQC are in the process of deciding providers'  applications for re-registration under the Health and Social Care Act 2008 ("HSCA"). 

The Health and Social Care Act 2008 (Commencement No 16, Transitory and Transitional Provisions) Order 2010 ("Transitional Order") is the legislation applicable to transitional applications.  This Order is incredibly complex and you may be at risk of operating illegally or run the risk of prosecution unless you fully understand the documentation that you will be receiving from CQC in due course.

CQC have 3 options available to them in determining your application.  They can: 

  1. Grant your application and register you subject to conditions you agree with
  2. Grant your application and register you subject to conditions you disagree with
  3. Refuse your application

Conditions of Registration 

There are two types of conditions that CQC can impose on your registration:   

  1. Restrictive Condition
  2. Compliance Condition

Restrictive Condition 

As you will be aware there will be one registration for the legal entity carrying on the regulated activities.  The locations at which you are allowed to carry on the regulated activities will form conditions on your registration. The locations will be determined by the locations you put on your application form and whether they are locations as set out in CQC Guidance on What is a Location?  In essence they are the locations at which you were running establishments and agencies under the Care Standards Act 2000.

Another condition which may be placed on your registration is that of a registered manager.  Under the Care Standards Act 2000 a provider, where they were an organisation, was required to appoint someone to manage the business in the absence of a registered manager.  By doing so you complied with your regulatory obligations.  It was the manager who was committing an offence by not being registered.  Now under the HSCA 2008 if you have a registered manager condition and no registered manager you are failing to comply with conditions of registration and unless you have a  reasonable excuse you are guilty of an offence and liable, on summary conviction to a fine up to £50,000. 

CQC may also impose restrictive conditions where it considers it is necessary to ensure that the needs of the service users are met. The example CQC give in their guidance is where staff are not trained to carry out surgery on children under 3 years old, CQC may attach a condition to that effect.  There may be a whole host of conditions placed on your registration.

Compliance Condition 

CQC will use the Judgement Framework and their Setting the Bar document to determine whether compliance conditions need to be imposed.  These conditions will be imposed where the provider is not meeting the essential standards of health and safety which are set out in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010. 

You were required to declare, as part of your application for re-registration, whether you meet the essential standards of health and safety.  This was a tick box at the end of the application form.  If you declared that you did not meet the standards or, if as part of assessing your application, CQC have determined you are not meeting the standards, compliance conditions will be imposed.   

The condition will tell a provider what action they must take and by when. When imposing a compliance condition CQC must set out a Statement of Reason which will include the regulations breached and why you must comply with the regulation.  CQC will expect an action plan to be produced setting out the dates for compliance.  Such conditions can be removed once improvements have been made and the condition is complied with or if it is not complied with by the dates required, you run the risk that enforcement action may be taken against you. 

CQC Registration Options 

Grant your application and register you subject to conditions you agree to 

The Transitional Order states if CQC are going to grant registration unconditionally or subject only to conditions which are agreed between the Commission and the Provider, providing you applied within your designated window and your application was in the correct form, containing and accompanied by all required information, CQC must use its best endeavours to give notice of their decision on your application before 1 October 2010.  If granted, registration takes effect from 1 October 2010 or the date on which the application is granted, whichever is the latter.  In these circumstances you will not be committing an offence of carrying on a regulated activity whilst unregistered between 1 October 2010 and the date the registration is granted. 

Grant your application and register you subject to conditions you disagree with 

In these circumstances CQC will give notice of its decision (Notice A), including reasons for that decision.  Notice A will let the provider know that you may make written representations to CQC concerning any issues you wish to dispute within 28 days of service of that Notice.  Again, providing you applied within your designated window and your application was in the correct form and contained and was accompanied by all required information, CQC must use its best endeavours to give notice of the decision before 1 October 2010.   

If you do not make representations within your 28 day window the conditions will remain and you will have to apply to vary your conditions in order to try and remove them.  However, if you do make representations, CQC have 3 months from receipt of those representations to give written notice (Notice B) either confirming their original decision, varying or removing any of the conditions.  If a condition is removed at this stage it is deemed to have been removed from the date of Notice B.  Providers have the right to appeal the decision confirming the Notice A to the First Tier Tribunal.  

If you made your application in your designated window, in the correct form, containing and accompanied by all required information then you will not be committing an offence of carrying on a regulated activity unregistered between 1 October 2010 and the date of service of Notice A. 

However, the Transitional Order states that, notwithstanding the right to make representations and appeal, the conditions with which you disagree take effect from 1 October 2010 or the date of grant of registration if this is later, unless otherwise specified by the Commission in the Notice A.  In deciding whether to specify a different date CQC will have regard to the need to strike a balance between the desirability of preserving service continuity and the exposure of any person to the risk of harm.  So for example, it is possible that CQC may state that a condition comes into effect at the end of any appeal process, should an appeal be brought and fail, however, this is unlikely if they believe that service users would be placed at risk without such a condition, especially when appeals can easily take 6-10 months to get in front of the Tribunal. 

The conditions will stay in place until CQC notifies the provider of the variation or removal or until the First Tier Tribunal directs that it shall cease to have effect.   Therefore the conditions will have been lawfully imposed and valid for the period it was subsisting either between Notice A and B or between Notice A and when the First Tier Tribunal directs.  Therefore if and until a condition is removed a Provider must comply with the disputed condition or face the risk of prosecution for non-compliance.   

There is of course the option of seeking urgent Judicial Review of CQC's decision to impose a condition and the date of applicability.  The question is whether CQC's decision was lawful.   Their decision can be challenged on the basis they acted unreasonably, irrationally or unfairly - for example they did not consider all relevant information.   

Refuse your application 

A refusal of registration will be for your entire application - all registered activities, all locations.  In this instance CQC must give a Notice of Proposal to refuse registration and must use their best endeavours to notify you of their proposal to refuse before the 1 October 2010 where you made your application within your application window, again in the correct form with all relevant information contained and attached.  Where you did not make your application on time in the correct form then CQC must use their best endeavours to notify you as soon as reasonably practicable. 

You have a right to make representations to that notice proposing to refuse your registration within 28 days of service of the notice and if CQC decide to adopt the proposal to refuse your registration it must give notice in writing of its decision to you.  The notice must explain that you have a right of appeal to the First Tier Tribunal and you must bring an appeal within 28 days of service of the notice.  
 

The notice will also state when the decision will take effect.  There are three options available to CQC.  The decision can take effect: 

  1. On 1 October in the case of a decision made before that date, or immediately in the case of a decision made on or after the 1 October; or
  2. 28 days from the date of service of the Notice of Decision; or
  3. Subject to any decision of the Tribunal, at the end of such further period specified in the Notice of Decision.

When deciding which of those three options they will take, CQC will have regard to striking a balance between the desirability of preserving service continuity and the need to safeguard persons against serious risks to their life, health or well-being.  If you are refused registration you may be told that the Notice takes effect immediately - or within a very short period of time.  So what do you do in these circumstances?  Do you close down your business?  Keep your business open, running it illegally without registration and face the possibility of prosecution as a result? Or do you again launch emergency judicial review proceedings challenging the decision. 

Not granting registration for all activities or locations 

As mentioned above, refusal of an application only provides for the refusal of the entire application.  Where a provider carries on several regulated activities at several locations CQC may not want to refuse the entirety of the application, but rather not register, a particular activity or location.  As you know, providers will have one registration and locations form conditions on your registration.  So there is an argument that if you are deemed fit for registration at one location why you would not be deemed fit at another, and therefore not registered in respect of that location.   Perhaps there were "problems" at the establishment under the CSA 2000, maybe in the instance of a care home it was rated Poor, or where enforcement action was being taken.  There is a risk of course that the opposite argument stands - that the entirety of a provider's registration will be refused where there are problems at some of their establishments even where others are performing well. 

If CQC do decide to only grant part of your application, they should formulate a negative condition.  So, for example, where a Provider has applied to carry on one regulated activity at 4 locations but CQC does not want to register the 4th location the condition should say: 

"Provider X is entitled to carry on regulated activity A at locations 1, 2 and 3 and Provider X is not entitled to carry on regulated activity A at location 4." 

However, CQC may simply leave off a location they do not wish to register.  So the Notice may state: 

Provider X is entitled to carry on regulated activity A at locations 1, 2 and 3.   

There is no mention of location 4.  This would be totally unsatisfactory and this is something you need to check carefully when your paperwork lands on your doormat or in your Inbox.  The best that could be done in these circumstances is that you make representations on the basis you do not agree to the conditions as the application has not been determined properly.  However, in the interim the conditions may take effect and either you will either have to shut the location that is missing or which forms part of a negative condition or run the risk of operating illegally.  This may also be the point at which you have to launch urgent judicial review proceedings.   

Didn't apply on time? 

If you did not make your transitional application on time (or had to re-submit your form outside your original window) or in the correct form, accompanied by the relevant information and CQC does not determine your application by 1 October 2010, you will be operating illegally.  Will CQC prosecute you?  Maybe - you certainly run that risk.  Have CQC got the resources to prosecute you? CQC are under-resourced but this will not stop them particularly if they want to make an example of someone.  July figures from CQC indicated that 9500 providers had been invited to apply and only 6500 had.  There is potential for a very large number of providers that will be operating unregistered come the 1 October 2010.  CQC are going to have to weigh up using resources to prosecute these providers or use them to process outstanding applications for registration. 

Conclusion  

There is a lot to look out for over the next few weeks.  Ensure that you read the paperwork received from CQC very carefully.  Do not sit on the paperwork before taking action as you are under tight deadlines to challenge anything you do not agree with and make sure you take legal advice sooner rather than later. 
 

Caroline Barker

Ridouts LLP


Disclaimer

The Ridouts Legal Bulletin is not intended as a substitute for seeking specific advice or as a statement of the law. If after reading this you identify that you may have a legal problem, please contact us for tailored advice.