Challenging disproportionate enforcement: A case study on CQC actions and successful appeal

The facts

We acted for a CQC regulated client who was prosecuted in criminal proceedings and received a Notice of Proposal to cancel their registration as a registered manager. The client considered the prosecution to be unfair and unreasonable and instructed us to appeal the conviction. Simultaneously, we were instructed to challenge the Notice of Proposal, but the CQC issued a Notice of Decision to proceed with the cancellation.

The matter went to the First-tier Tribunal, where it was argued that civil enforcement action was premature, unnecessary, unreasonable, and unjustified, particularly given the pending appeal of the criminal conviction. We argued that there would have been disproportionate harm caused to our client’s business by a cancellation of their registration, if the conviction were later overturned.

Ultimately, we were able to successfully overturn the criminal conviction and the First-tier Tribunal proceedings were not pursued any further, enabling the client to move on with their life and their business.

What are the relevant rules?

1. CQC’s Notice of Proposal and decision process: Under the Health and Social Care Act 2008 (the “2008 Act”), the CQC must issue a Notice of Proposal with reasons before taking actions such as cancelling a registration. The registered person has 28 days to submit written representations. If the CQC adopts the proposal, it issues a Notice of Decision, which can be appealed to the First-tier Tribunal (Health, Education and Social Care Chamber).
2. CQC’s enforcement powers and proportionality: The CQC has wide enforcement powers under the 2008 Act and related regulations. These powers include cancelling or suspending registrations, but they are required to act consistently and proportionately, guided by their enforcement policy and decision-making criteria.
3. Criminal prosecution and overturning convictions: The CQC is empowered to prosecute criminal offences related to health and social care regulations. It may also consider alternative measures, such as cautions or fixed penalty notices. Convictions can be appealed if there are grounds to do so, and the CQC is required to publish information about offences for which registered persons have been convicted.

Analysis

The CQC’s decision to issue a Notice of Proposal and subsequently a Notice of Decision to cancel the client’s registration raised questions about the proportionality and timing of its enforcement actions. While the CQC is authorised to take such actions under the 2008 Act, its enforcement policy emphasises the need for proportionality and consistency. In this case, the client’s criminal conviction was under appeal, and its validity was in jeopardy. Proceeding with the cancellation of the client’s registration under these circumstances was therefore argued as being premature and disproportionate, particularly given the significant harm to the client’s business if the conviction were overturned.

The successful appeal of the criminal conviction underscores the disproportionate nature of the CQC’s actions in this case. Whilst the CQC has the power to prosecute offences, it should also consider the broader implications of its actions, including the potential for harm to regulated persons and their businesses.

How can Ellis Jones help?

This case serves as a reminder that the CQC will not delay in taking enforcement action where they consider it necessary to do so. They will take action if they consider that fundamental standards, conditions of registration or any relevant legislation have been breached. If a provider receives an enforcement notice from the CQC, they should seek independent legal advice as soon as possible to determine the merits of challenging the CQC’s proposals to vary, suspend or cancel a registration, or to put the service in special measures, for example.

Our Healthcare team recognise the pressures that care providers are under and the time restraints that most have to deal with the sorts of issues described above. To ease that pressure, we can provide you with concise, comprehensive and practical advice and work with you to protect your position, to include challenging proposed enforcement action. If you have a matter you would like to discuss, please contact Henrietta Frew by email at Henrietta.Frew@ellisjones.co.uk or phone 01202 525333.