What is personal care?
‘Personal care’ is defined in the CQC’s ‘The scope of Registration’ document (March 2015). A person will likely fall within this definition where care is provided to an elderly, ill or disabled person in their own home; it is provided by another person on their behalf (an employee); and payment is not received directly from the service user, but via another person or Local Authority. However, each case should be considered on its own facts and where it is unclear, specialist legal advice should be obtained.
It is a criminal offence to carry out a regulated activity without registration under Section 10(1) of the Health and Social Care Act 2008. This offence can be dealt with by the Magistrates or Crown Court and if found guilty, the Court can impose an unlimited fine and/or a sentence of up to 12 months imprisonment.
The CQC will assess whether it is proportionate and in the public interest to prosecute. Over recent years, we have seen an increase in the number of prosecutions instigated by the CQC and it is clear that the CQC are cracking down on any unregistered activity.
Our specialist lawyers represented an individual prosecuted by the CQC for carrying out personal care without registration. They were providing domiciliary care to 11 elderly service users in their homes and employed three staff. As such, they fell within the scope of CQC registration.
Our client pleaded guilty at the first opportunity at the Magistrates’ Court. By way of mitigating circumstances, they had vast experience in the care sector; had no previous complaints; and there was no evidence of any harm caused to any service users. It was submitted that they were genuinely unaware of the registration requirements and had unknowingly committed this offence. At the sentencing hearing, providing maximum credit for an early guilty plea, the Court imposed a fine of £1,600. The CQC sought to recover costs in excess of £6,200, however, the Court limited these costs to £4,500 and a victim surcharge of £160 following submissions on their financial circumstances; health; and ability to pay.
This is just one example of the proactive approach the CQC is now taking to prosecute unregistered providers and the financial penalties paid. A prison sentence is within the Court’s sentencing powers and is a realistic possibility for anyone who knowingly committing this offence over a prolonged period of time with no regard to the registration requirements.
How can I avoid a prosecution?
The key to minimising any potential criminal enforcement action or prosecution by the CQC is by ensuring that early and prompt action is taken to rectify any genuine error as quickly as possible. If you are unsure whether you require registration, you should cease all services whilst you seek specialist legal advice and if required, until you receive your CQC registration. Where regulated activities have been undertaken for some time without registration, it is important that any responses you make to the CQC are carefully drafted to mitigate any potential action.
Our specialist lawyers previously represented the directors of a homecare agency, who had been assisting with and supervising the provision of physical and domestic activities for vulnerable adults. Upon applying for registration with the CQC, our clients were invited to attend an interview under caution on the basis that they had been providing personal care prior to their application. Following our representation, the CQC decided to take no further action and the agency was subsequently registered. In this case, their prompt action to apply for registration as soon as they realised their error and their engagement with the CQC throughout the investigation and registration process, resulted in a positive outcome and no prosecution.