Since July 2022, I’ve been reporting on cases where the Care Quality Commission (CQC) has found care for autistic people and those with learning disabilities to be inadequate.
During this time, I have followed the enforcement actions the regulator has taken.
Here, I want to unpick what happens when the CQC finds a provider’s care to be inadequate.
How does the CQC decide if it needs to take action?
When the CQC has concerns about care, several options are available.
It has civil powers to reduce the risks to people using services that it regulates, and criminal powers to hold those registered for care accountable for serious failures.
The CQC goes through a four- stage process to decide on action.
Step 1: initial assessment
The CQC may become aware of concerns that could warrant action through its inspection and assessment processes and from receiving information from other sources.
These sources might include members of the public or whistleblowers, as well as safeguarding alerts and prevention of future death reports (Reducing risks of further deaths, spring 2024).
When the CQC is not assured that people are reasonably protected from harm, it will decide whether it needs to gather more information, refer the concern to another public body or progress to the next stage.
Step 2: legal and evidential review
At the second stage, the CQC conducts a review to determine whether there is sufficient evidence of a breach of legal requirements by a registered person (this can be an individual, partnership or organisation providing a service).
It compiles evidence into a bundle. If this demonstrates an identifiable breach of a legal requirement and the evidence is sufficient and robust to prove the breach, then the case continues to step 3.
Step 3: selection of the appropriate enforcement action
In this stage, the CQC follows its structured decision-making process to determine what enforcement action to take.
It considers all of the civil and criminal options available, the seriousness of the breach and whether there is evidence of multiple and/or persistent breaches.
Step 4: final review
The final step involves reviewing previous decisions in this process.
A decision is made on whether civil or criminal enforcement action should be taken and, if so, in what form. Records of meetings on this provide an audit trail of how the CQC came to its decision.
Enforcement powers
If breaches of regulations amount to a criminal offence, the CQC can:
- Issue a caution
- Issue a fixed penalty notice (as an alternative to prosecution)
- Bring a prosecution.
A decision is made on whether civil or criminal enforcement action should be pursued
The CQC uses civil enforcement powers to force a provider to protect people and to ensure care is of an appropriate standard.
These include:
- Imposing, varying or removing conditions of registration
- Suspending registration
- Cancelling registration (closing services down)
- Urgent procedures
- Special measures.
Criminal powers in urgent cases
If the CQC has urgent concerns and believes a provider remaining open would pose a “serious, immediate risk to a person’s life, health or wellbeing”, it can apply to a magistrates’ court for an order to immediately cancel registration.
In such cases, it would immediately issue a notice of decision.
Civil proceedings
In all other cases, the CQC issues a notice of proposal that it intends to make changes to registration (such as those detailed above).
Providers can then agree with the CQC; otherwise, they have 28 days to make written representations to the CQC explaining why they wish to challenge the decision.
The CQC considers the providers’ representations. If it decides to agree with the provider, it withdraws the notice of proposal. If the CQC disagrees with them, it will “adopt” the notice of proposal and serve a notice of decision.
Going to tribunal
If providers still do not agree with the CQC’s decision, they can appeal to the First-tier Tribunal (Care Standards).
The tribunal is responsible for handling appeals against decisions by the education or health secretaries, the CQC, Ofsted or the Care Council of Wales.
It is part of the Health, Education and Social Care Chamber, one of seven chambers that settles legal disputes and are structured around particular legal areas.
The tribunal is not associated with or part of the government. Applications are heard by an independent panel including a judge and specialist tribunal members with experience and expertise in health and social care.
Hearings take place in a courtroom local to the provider or via video link. Members of the public (including journalists) can attend the hearing.
Both the CQC and the provider are entitled to have legal representatives to make their case.
At the hearings, the CQC and the provider are given equal opportunities to present their evidence and explain their position.
Both parties can call witnesses to give evidence, and can highlight points they view as important.
The tribunal panel considers all the evidence and submissions and provides a written decision with reasons.
Types and numbers of cases
No statistics are published on the numbers or types of cases heard by the care standards tribunal.
I have been tracking published decisions of cases relating to providers registered to support learning disabled and autistic people. Since 2023, there have been eight cases, all of which were dismissed by the tribunal, with the CQC’s decisions upheld.
