CQC Appeals

Appeals from CQC decisions may be necessary in a number of circumstances. What appeals can be brought against CQC’s decision-making processes?

The CQC regulates a number of healthcare and social care organisations. It can seek to vary registrations, decline to register, cancel registrations, and bring criminal prosecutions that might each need to be appealed. This article focusses on appeals to the Care Standards Tribunal. For other appeals relating to care homes, see our other appeal pages, from our Menu.

Care Home Defence Service can advise and represent care homes in all appeals from CQC decision-making processes. In some cases, where there is no right of statutory appeal, a judicial review may be necessary instead of an appeal. Alternatively, a care home might choose to complain to the Ombudsman.

Appeals to the First Tier Tribunal

Where a Notice of Decision (NoD) has been issued a care home has 28 days to lodge an appeal with the First Tier Tribunal (Care Standards). The appeal notice document must be appropriately completed and be accompanied by the CQC decision letter. If an error is made in sending the form in on time or in compiling the document, the error may be fatal to the appeal and the appeal application may be held to be defective or out of time. This is a very important matter to be aware of, as any failure at this stage could lead to signicicant  detriment to the care home.

Telephone Case Management Hearings

Once the appeal notice has been filed, the Care Standards Tribunal (CST) will list the matter for a telephone hearing before a judge, to issue Directions. A Direction is a step that each party must adhere to otherwise the case could be struck out. If CQC resists the appeal the matter will be referred to a hearing a few months later. There is an exception to this timetable where the appeal is brought under the urgent application procedure (limited to specific class of cases). The parties’ lawyers make submissions to the judge about the appropriate date for a hearing and the suggested Directions. The lawyers will draw up draft directions in advance.

CST Directions

A list of Directions will be issued by a judge after the telephone case management hearing. While an application can in some cicumstances be made to alter the timetable this may not be agreed by CQC or the judge. A care home must ensure that they comply with the Directions so as not to risk having the appeal struck out. In some instances a judge will issue an Unless Order, which means that the case will be struck out if the care home has not taken a specific step by a certain date.

The parties (CQC and the care home) will be required to exchange witness statememts and exhibits by a certain date and in a particular format.

Gathering Evidence

The care home’s evidence must deal with CQC’s concerns in considerable detail. Where CQC is wrong on a matter, good quality evidence will be needed to rebut the allegations. Where the care home makes admissions, the care home will need to undertake remediation, and also evidence learning and sustainable change. Care consultants may need to give evidence as well, to assist the tribunal in understanding the changes that have been made. Formal witness statements from staff will need to be taken, and expert reports may need to be 0btained. Documentation in the possession of the care home may need to be included. If a third-party has possession of a document that a care home needs, a request for disclosure may need to be made.

Stay of Proceedings

Where CQC is content with the progress being made at the home, they may agree a Stay. This is a pause put in place while the care home makes improvements. It also allows CQC to reinspect. The CQC may agree to withdraw resistance to the appeal if the care home has made good improvements that are considered to be sustainable.

Care Homes and CST Hearings

A hearing will usually be listed for two or three days. The tribunal hearing the case is made up of a legally qualified judge, a lay person, and somebody who has experience in the care sector. They will listen to the evidence, hear from witnesses, hear submissions from the barristers, and then issue a written determination a few days later. The tribunal decision has immediate effect.

It is important to prepare well for the tribunal hearing. Witness statements stand as evidence in chief, and so the statements should be in good order. The tribunal generally only permits a little amplification. Each witness will be questioned (cross examined) by the lawyer acting for CQC. The hearings can be quite forensic on occasions. The parties also make submissions through their respective lawyers.

The tribunal makes decisions on the balance of probabilities. This means that the tribunal prefers the version of events that is more likely to have occurred. The tribunal must make a judgment about the evidence adduced, and they will examine the crdibility of each piece of evidence and form a view about how much weight should be given to it. The CQC has the burden of proving the case against the care home.

If the tribunal’s decision is adverse, there is an appeal route to the Upper Tribunal. While an appeal to the First Tribunal is as of right, an appeal to the Upper Tribunal can only be brought if permission is granted.

Appeals to the Upper Tribunal

An appeal to the Upper Tribunal from a First Tier Tribunal (Care Standards) decision requires permission and can only be brought on a point of law. An appeal to the Upper Tribunal is not, generally speaking, a merits assessment and this is an important matter to bear in mind. Good preparation, good evidence and good witnesses are key to increasing the prospects of success in any appeal.

APPEAL REPRESENTATION

Care Home Defence Service represents care homes and other care establishments in challenging CQC on appeal. To see how we can assist you, give us a call without obligation and in strict confidence, or use our Contact Form.