A recent Care Standards Tribunal decision – Westhope Limited v Care Quality Commission – has highlighted the approach CQC should be applying when deciding on whether to continue to pursue enforcement action against providers.
The full Decision can be found at:
(FTT) Decision 19 May 2025 – 2024-01197.EA.pdf
In short, the case concerned a care home provider that had received a notice of proposal and subsequent notice of decision from CQC to close the home through the removal of the location as a condition of the provider’s registration. The provider appealed the decision and CQC opposed the appeal leading to the matter being heard by the Tribunal at a final hearing in March 2025. The Tribunal found for the provider and allowed the appeal.
The Tribunal makes a fresh decision based on the up-to-date position
Importantly, in such cases, the Tribunal is required to make a decision based on the position of the service at the time of the hearing, as opposed to at the time CQC made the decision being appealed. Therefore, any steps taken to address alleged non-compliance and improve the service must be taken into account.
Usually in these types of cases, CQC will seek to reinspect a service before the final hearing to determine its view on the current position of the service (although this is not guaranteed). However, in this case the service had taken the decision to close shortly after the CQC inspection that led to the initial enforcement action being taken and the service ceased to provide care to service users a few months later.
Therefore, CQC was of the view that there was nothing for it to re-inspect. The provider put forward detailed information about improvements that had been made at the service following the CQC inspection and prior to its closure which the Tribunal was persuaded by. In particular, it was impressed with the oral testimony given by the provider’s witnesses during the hearing. The Tribunal also noted that as the service was empty, there was no risk which obviously was relevant to an evaluation of current risk. Strangely, CQC had not taken this into account and continued to challenge the appeal.
The Law
The statutory position on CQC’s performance of its functions is set out in the Health and Social Care Act 2008 (“the Act”). Section 4(1) of the Act sets out matters CQC must, in performing its functions, have regard to. This includes, under section 4(1)(e):
“the need to ensure that action by the Commission in relation to health and social care services is proportionate to the risks against which it would afford safeguards and its targeted only where it is needed.”
This confirms the fundamental requirement for CQC to take a risk-based approach to regulation and enforcement action. Considering the requirement for the Tribunal to base its decision on the current position, this also highlights the need for CQC to keep matters under review when considering whether it remains proportionate to continue to pursue enforcement action.
Judging risk
In this case, CQC asserted that the breaches of regulation noted in the most recent inspection were serious and it had little confidence in the provider’s ability to provide care that would be compliant with the Regulations. CQC’s witnesses asserted that the provider had failed to evidence or provide sufficient assurance in relation to compliance after the CQC inspection. At paragraph 83 of the Tribunal decision, the Tribunal panel confirmed that full compliance with the Regulations is not, in the Tribunal’s view, required in order for it to form a view on whether a decision remains proportionate. The following was noted:
“it would be sufficient, for the purposes of the Appeal, if the material improvement reached a level that, even if still below the Respondent’s wider expectations, rendered the relevant regulatory action disproportionate. There is no need, for instance, for the provider to satisfy us that it has reached “good” overall, or even necessarily “requires improvement…”
This suggests that, in some circumstances, the Tribunal may consider that a service’s registration should not be cancelled, or a location should not be removed (both of which amount to closure of a service), even if it continues to be rated as ‘Inadequate’ by CQC.
Our experience at Gordons Partnership
At Gordons Partnership, we have direct experience of CQC applying this reasoning on a case. The provider was appealing a CQC decision to cancel its registration following an Inadequate inspection. As part of the process, CQC revisited the home to carry out a new inspection. This was intended to assist it in getting a better understanding of the current position of the service in light of improvements the provider stated they had made.
While CQC noted some improvements, they referred to continuing regulatory breaches and continued to rate the service as Inadequate overall (although some of the key questions ratings had been raised to Requires Improvement). Despite a repeat Inadequate rating, CQC took the decision to withdraw its opposition to the appeal and instead agreed to the imposition of conditions of registration restricting admissions to the home without CQC’s prior written approval and requiring the provider to send regular action plan updates. In this instance, CQC ultimately decided that it was no longer proportionate for it to continue to seek to cancel the provider’s registration and instead considered alternative options.
While we agreed with CQC’s assessment in the case example provided above, on many other occasions we have noted a different approach being applied by CQC that appears inconsistent with this approach.
Fundamentally, the case clarifies that CQC is required to regulate according to presenting risks. It acknowledged that risks can change over time and the Tribunal will be alert to this. The recent Tribunal decision demonstrates that CQC failed in this fundamental responsibility. In particular, the Tribunal noted CQC’s witnesses failed to appreciate how CQC’s own enforcement decision tree should be applied and that their stated opinions changed throughout the course of the hearing.
Conclusion
The decision, and our case experience, demonstrate that providers could find themselves in a situation where they continue to be rated Inadequate but the risks may not be considered serious enough to justify continuing with cancellation proceedings. Providers should note that each case will be considered on the individual facts and particular risks presented, and the Tribunal was clear to note this throughout its decision.
If you need any advice relating to CQC enforcement action or navigating the Tribunal process 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.
About the Author
Senior Associate
Tel: 01483 451 900