Regulatory Team E-Bulletin: July 2019

Challenging CQC Urgent Cancellations

A new Upper Tribunal case provides assistance in relation to how service providers can challenge Care Quality Commission decisions to cancel registrations.

The Care Quality Commission has the power to cancel the registration of services under its control, which include care homes, hospitals, dentists and ambulances. The normal cancellation provisions are relatively relaxed: there is a period for the service provider to make representations, and for CQC to reinspect before issuing a cancellation notice. There is also an appeal process which allows the service provider to carry on operating while a First-tier Tribunal considers the appeal. In some circumstances, however, CQC can take steps to shut homes and hospitals with immediate effect, where people will otherwise be at serious risk.

The procedure for urgent cancellation includes these steps:

• CQC apply for urgent cancellation order to a magistrate (Health and Social Care Act 2008 section 30).
• The order ‘may’ be made by a magistrate under s31 if:
  • ‘It appears to the justice that, unless an order is made, there will be a serious risk to a person’s life, health or well-being’.
• Service providers are entitled to appeal against the use of these urgent powers but this does not prevent the condition or suspension taking effect (s32 HSCA). 
• The service provider has just 28 days to lodge an appeal application to the Care Standards First-tier Tribunal.
  • A “memorandum of understanding” requires that all cases appealing the CQC’s enforcement action on the basis of urgent procedures are fast-tracked.
• If the First-tier Tribunal holds against the service provider they can appeal to the Upper Tribunal (Administrative Appeals Chamber) but only on a point of law.

Increasingly CQC is threatening to use these urgent cancellation powers, and requiring care homes to demonstrate why they should not be closed down, often imposing a very tight timetable of around 24 hours. This places a significant burden on businesses, and on the healthcare lawyers who advise them. It is often the case that a package can be put together at short notice, sometimes requiring counsel, solicitor and client to work round the clock, and sometimes with the input of consultants to devise new quality-management systems. It is well worthwhile putting time, effort and resources into challenging urgent cancellation threats and actions: the difficulty otherwise is that even if an appeal is successful, irreparable damage has been done to the business.

It is rare for Care Standards cases to reach the Upper Tribunal, and the recent case of Button Space Ltd v CQC [2019] UKUT 134 (AAC) provides welcome guidance. Some of that guidance is not news, but may be worth repeating:

• The First-tier Tribunal stands in the shoes of the decision-maker so that the question for the Tribunal is whether at the date of its decision, it reasonably believes that unless the order is made, the continued provision of the regulated activity by the registered provider will present a serious risk to a person’s life, health or well-being [para 28].
• The burden of proof is on the respondent and the standard of proof is the balance of probabilities [para 29]. 
• The test is discretionary. A magistrate (and the First-tier Tribunal) does not have to make an order even if the test is made: it ‘may’ make an order.

At the heart of the case was a more controversial point. The appellants argued that because there were no service-users in the home there could be no risk to any person if the order was not made. Where there is an urgent cancellation of a care home’s registration under s30, it is generally the case that at the time of the First-Tier hearing there are no service-users in the home. In this case it appears that there had been variation of conditions such that no new service-users would be admitted.

The Upper Tribunal found that:

• There was no basis to read into the section 31 test ‘a requirement of immediacy’. There is no requirement that the ‘serious risk to a person’s life, health or well-being’ has to be imminent’.
• The serious risk could be to a person other than a service-user. (This was not in the event a point which was relevant to the appeal, but it is conceivable that there will be cases where a risk would be posed to staff who were, for example, not properly trained to manage service-users with challenging behaviours.)
• The legal test requires consideration of whether other restrictions, such as the restriction on admitting new service-users, meant that there was no serious risk. The test requires consideration of ‘the nature of the restrictions, the certainty of the restrictions, their likely continuance within the foreseeable future and any prospect of an attempt being made to circumvent them’.

In that case it was found that the service provider had returned service-users to the apparently dangerous premises at some point. The Upper Tribunal found that the First-tier Tribunal had applied the correct legal test, although could have set out its reasoning more clearly. In situations where there are no service-users, and a strong history of compliance, it is arguable that a draconian section 30 order is not the appropriate enforcement route. The case of Button Space can be used as the basis for an argument that no person would be put at risk if the service continued, and therefore no urgent cancellation is required. This would allow a service time to get their house in order, and seek re-admittance of service-users, without having to go through the onerous process of re-registering the service.

Kate Brunner QC