Legal Opinion

Challenging the CQC’s decision to refuse your registration

Laura Hannah, Partner, Stephensons Solicitors

One of the unfortunate outcomes of the Covid-19 pandemic is that many care homes may end up having to close due to the additional financial pressures this pandemic has placed on already struggling social care services.

In recent years, it has been reported that the demand for social care is expected to continue to rise quite significantly. However, with rising costs and more rigorous regulatory requirements, we have also seen an increase in care home closures.

As the demand for care home placements and homecare will no doubt continue to rise in the coming years, we may (and hope to) see an increase in applications for registration with the CQC from new and existing providers wanting to register new care homes; nursing homes; and domiciliary care agencies to cater for this demand.

However, obtaining registration with the CQC is not always a straightforward, easy task. The CQC have been taking a more stringent approach to registrations in the last few years and this is reflected in the increase in refusals of registration. In the CQC’s Annual Report for 2018/19, it confirmed that the CQC had issued 564 registration Notices of Proposal in 2018/2019, which was an increase of 119 (26.7%) from 2017/18.

The CQC’s power to refuse an application for registration

It is not uncommon for applications for registration to be rejected by the CQC as ‘incomplete’ during their initial checks and before it is passed on to a registration inspector for assessment. This is not a refusal of the registration application, but simply a notification that the application needs to be amended and resubmitted before it can proceed. Applications are usually returned due to minor errors with the completion of the relevant forms, such as missing or incomplete information in relation to the provider’s details; the regulated activities applied for; or the location details, for example. It may also be rejected if the provider application and associated manager application have inconsistent details.

Following an assessment of the registration application, the CQC has the power to refuse the registration under Section 12 of the Health and Social Care Act 2008. The most common reason for refusing an application is that the CQC is not satisfied that a number of the requirements of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 will be complied with. For example, the CQC may have identified concerns with policies and procedures; staffing arrangements; or medicines management. The CQC may also not be satisfied that the proposed manager is a ‘fit and proper person’ to manage the regulated activities.

Before refusing the application, the CQC must issue a Notice of Proposal to refuse the application, which details their reasons for the proposed refusal. An applicant will have 28 days to make written representations against this proposal. This is an opportunity to respond to the concerns and provide any additional evidence in support of the application. It is important that a provider reviews each reason carefully and takes a careful and measured approach; this is only a proposal at this stage and there is still time to persuade the CQC to grant the registration.

Where the reasons are disputed, it is important that robust submissions are made to challenge the refusal with supporting documentation, and with reference to any applicable legislation; guidance; or case law. If any of the reasons provided are accepted, providers should consider how they can rectify or address those concerns in a timely manner and provide assurances to the CQC about their future compliance, particularly before any final decision on the registration is made.

After assessing any representations and evidence submitted, the CQC will determine whether to proceed with their refusal. If the proposal is adopted, the CQC will subsequently issue a Notice of Decision and there will be a right of appeal against to the First-tier Tribunal (Care Standards Chamber). This appeal has to be made in writing within 28 days. These appeals can take a number of months to conclude and in order to stand any prospect of success, providers need to ensure that they are able to support their challenge with clear, documentary evidence.

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