Learning Disabilities & Autism Legal Opinion

The pitfalls of CQC’s ‘Registering the Right Support’

Chloe Parish, Solicitor, Stephensons Solicitors LLP

Many providers within the care sector will recall the Winterbourne View scandal, which exposed the abuse of people with learning disabilities who were placed within hospital type settings. What followed this were several reviews and the publication of best practice guidance. Building the Right Support, which was published in 2015, set out the national plan to develop community services and close inpatient facilities. Registering the Right Support is CQC’s policy on registration and variations for providers supporting people with a learning disability or autism, and was designed to ensure that registration decisions are made in line with the best practice guidance such as Building the Right Support.

The guidance specifically applies to three key areas of registration:

  1. Applying to provide a regulated activity in specialist hospital provision, such as an assessment and treatment unit for people with a learning disability and/or autism;
  2. Applying to provide a regulated activity in other services specifically for people with a learning disability and/or autism;
  3. Applying to vary a provider’s conditions of registration by adding or removing a location, or increasing the number of places provided at a location.

 The key principles of Registering the Right Support include that services should meet an identified local need, should seek the views of those who would benefit from such services, and should be based within a local community and lose to local amenities, such as health and social care services. Perhaps the main principle, however, is that services should not be a ‘campus style development’ and should be small. CQC have identified small as being accommodation of six or less.

Application in Practice

CQC made it clear when issuing their guidance that they would not compromise on ensuring the best care for people with a learning disability and/or autism, but that there would be some flexibility if providers could demonstrate that they would be providing high quality, person centred care.

Unfortunately, for many providers the registration process has proven difficult. CQC have been heavily criticised for their rigid application of Registering the Right Support, with feedback from providers suggesting that CQC have continued to refuse applications on the basis that their proposed service does not comply with the key principles of Registering the Right Support. This is despite the fact that many providers demonstrate their overall compliance with best practice guidance.

The size of the service appears so far to have been the most problematic principle to overcome. Whilst CQC indicated within the guidance that they would ‘not adopt six as a rigid rule’ and that they ‘may register providers who have services that are small scale, but accommodate more than six people’, they have in many instances refused applications to add one of two beds to existing services and have refused to register new services of seven or eight beds. Many providers will have already invested significantly in creating their new service, and others will already have individual placements lined up.

For those providers that have been refused registration, the only option is to appeal the matter to the First-tier Tribunal. This ultimately delays registration by months and comes at additional expense.

What happens next?

The poor application of Registering the Right Support has arguably prevented excellent facilities from opening within local communities. Many individuals hoping to utilise the facilities will have been forced to remain in unsuitable placements far away from home. Clearly, this goes against the overarching aim of Registering the Right Support.

Thankfully, CQC have been alive to the concerns of providers and in 2019 announced that they would be revising Registering the Right Support. Feedback so far has highlighted that there is more work to do on the size of services, the link to NICE guidance, and around how demonstration of personalised care and outcomes impact on registration decisions.

Those providers wishing to follow any updates on the new guidance can sign up to the ‘participation platform’ on CQC’s website.

 

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