CQC has a wide range of enforcement powers at its disposal and it is not afraid to take serious action in response to perceived areas of non-compliance. Recent figures on CQC inspection findings demonstrate that in 2023-24 30% of inspections resulted in a conclusion of regulatory breach and 8.59% of these resulted in some form of enforcement action being pursued. While warning notices were issued in response to most of the breaches, 2.39% of regulatory breaches led CQC to use other civil enforcement powers, including the issuance of Notices of Proposal (NOPs).

The vast majority of providers will likely have never received a NOP, but if they do end up with one in their inbox it is important they understand what they are, how they can respond and the potential outcomes so they can take prompt, decisive action to protect their service.

 

What is a Notice of Proposal?

NOPs form part of CQC’s civil enforcement powers conferred under the Health and Social Care Act 2008 (“HSCA 2008”). A NOP may propose to do any of the following in relation to a registered service provider or registered manager:

  • Impose, remove or vary conditions of registration;
  • Suspend registration; or
  • Cancel registration.

NOPs can also be issued in registration situations where CQC proposes to refuse or amend an application for a new registration as a provider or manager, or proposes to refuse an application to remove or vary conditions relating to an existing registration.

In an enforcement context, CQC uses NOPs as a means of forcing a provider or manager to make improvements in order to protect people who use services from harm and the risk of harm. As such, they are usually issued after a CQC assessment has taken place and are based on the assessment findings. Providers and managers have the opportunity to submit representations to CQC in response to a NOP which will be considered by CQC before a decision is made in relation to the proposed action.

A NOP will be served in the form of a letter and is usually sent to the relevant person by email. CQC is required to provide reasons for its proposal (see section 26 HSCA 2008) and these will be set out in the NOP.

If service users and staff are referenced in the NOP, CQC should provide an identification key to enable the recipient to fully understand and investigate the allegations put forward. CQC may also include a table of evidence and may provide copies of some of the evidence referenced in the NOP if they do not believe the recipient already has copies.

 

Why should providers consider responding to NOPs?

A NOP demonstrates CQC has serious concerns about a provider or manager. The CQC enforcement decision tree states NOPs are considered as a potential enforcement option when the seriousness of a breach is judged as high or medium risk. The level of severity of the proposed action depends on the level of seriousness, for example, cancellation and suspension are only considered in relation to a high risk.

If a provider or manager fails to convince CQC they have addressed the concerns or that the basis of the NOP is unsound, CQC can proceed to a Notice of Decision (NOD). In addition, if a provider or manager doesn’t respond to a NOP it will automatically be adopted by CQC and a NOD will be issued. Once a NOD is issued, the matter is taken outside of CQC and the provider or manager will have the opportunity to appeal the NOD through the First-tier Tribunal. The appeals process can be costly and time consuming and if a provider or manager does not appeal a NOD by the deadline or their appeal fails, the action outlined within the NOD will take effect.

There is usually a lot at stake and it is always best to begin addressing the matter at the earliest opportunity (i.e. following receipt of a NOP). Even if a provider’s or manager’s representations are  unsuccessful at the NOP stage, submitting representations can buy them some time to address issues of concern. This is of particular value to NOP recipients who accept the issues raised and are working to implement improvements. The representations process also assists a provider or manager in setting out their case clearly in anticipation of any potential subsequent appeal to the Tribunal.

 

How can a provider respond to a NOP?

Providers and managers have 28 days from the date of receipt of a NOP to submit written representations to CQC.

In CQC enforcement situations the burden of proof is on CQC to demonstrate that at the time a decision is made, the proposed action is reasonable and proportionate.

The representations may include factual challenges against the information relied upon by CQC to justify the action, legal challenges against the proportionality of the proposed action, updates on the current position at the service and evidence supporting assertions made.  It is essential to cover off every aspect of the NOP in detail and with supporting evidence, so far as available, given the propensity of the decision-maker to look for any perceived gaps in the representations to justify adopting the NOP. In particular, the provider or manager will need to show any improvements are embedded and subject to proper oversight to prevent reoccurrence.

Increasingly CQC has been seen to issue NOPs in advance of issuing the draft assessment report. This means the provider has not had an opportunity to comment on the factual accuracy of the report.  While not unlawful, it does mean there is a greater chance of inaccuracies occurring in the NOP which will then need to be challenged as part of the representations process.

An important point to note is that CQC should be basing any decision on whether or not the decision is proportionate, taking into account the position of the provider or manager at the time the decision is being made. Therefore, any improvements made by the provider or manager must be considered by the CQC decision-maker. With that in mind, it can be argued that CQC should be re-inspecting a service to assess any changes and improvements made in advance of issuing a NOD.

 

How will CQC respond to NOP representations?

Following receipt of representations, CQC can either:

  • Decide not to adopt the NOP and withdraw it;
  • Decide to adopt the NOP and serve a NOD.

CQC should really carry out a new assessment of a service prior to making a decision, particularly if the representations have focused on improvements having been made at the service since the assessment prompting the NOP took place. However, this is not guaranteed and we have seen many examples where CQC has not made the effort to reassess a service prior to serving a NOD. A failure by CQC to reassess a service prior to making a formal decision can be referred to in any subsequent Tribunal appeal.

There is no statutory requirement for CQC to respond to representations within a certain timeframe. CQC has been seen to take as little as a week to respond in some cases and over 6 months in others.

 

When will a NOD take effect?

It is important to note that a NOP is, as it is described, only a proposal.

A NOD adopted after a NOP does not take effect immediately. It will only take effect (if at all) when a final determination has been made in relation to the matter. This may be either:

  1. If a NOD has been received and the provider or manager does not appeal the decision to the Tribunal;
  2. If an appeal has been made to the Tribunal and the provider or manager either withdraws their appeal, has it struck out or they lose the appeal at a final hearing.

Providers and managers should note that there is plenty of opportunity for them to persuade CQC that the proposed action is no longer required and the NOP representations process is the first official way to do this. Even if a NOP is adopted and the matter enters the formal Tribunal process, there is plenty of scope for negotiation along the way.

 

Will CQC publish NOPs?

CQC is prevented from publishing specific information on NOPs until the process has been finalised. However, CQC is required to inform relevant placing authorities and other associated bodies that it is taking enforcement action and copies of the NOP may be sent to them.

 

How can Gordons Partnership help?

At Gordons Partnership we have an experienced team who have successfully represented many providers and managers through the CQC NOP process. We are experienced in reviewing, assessing and putting forward the strongest case possible on behalf of our clients.

Recently we successfully assisted a provider who received NOPs to cancel two care homes as well as a NOP to cancel the provider’s overall registration. Initially, all three NOPs were adopted and the client received three separate NODs. These were all appealed to the First-tier Tribunal.

When the first of the care homes was re-inspected with a positive outcome, that case was settled, as was the overall case. Logically the regulator cannot proceed to cancel the overall registration of a provider in circumstances where it has agreed to settle a cancellation relating to one of the services falling under it. Finally, there was a re-inspection of the second care home which also was found to be compliant. Therefore, all three appeals were successfully settled, dispensing with the need for a Tribunal hearing. The two services are back on track and flourishing.

We have also been successful in getting a NOP to cancel withdrawn on the basis of material factual errors within it. CQC reissued the NOP with the necessary corrections and ultimately the case was settled in the provider’s favour.

We regularly assist providers through all stages of the CQC enforcement process as well as with registration matters, complaints and factual accuracy challenges. Given the time-sensitive nature and potentially severe consequences of CQC enforcement action, we encourage providers and managers to seek legal assistance as soon as possible.

If you’ve received an enforcement action letter or notice from CQC and are seeking legal support, please don’t hesitate to contact us on 01483 451 900 or email us at sols@gordonsols.co.uk. Our team would be happy to help.

If you’d like to receive regular news updates from the Gordons Partnership Health and Social Care Team you can sign-up to our mailing list here: https://gordonsols.ac-page.com/newsletter-sign-up

 

About the Author

Samantha Burges

Senior Associate Solicitor