Upper Tribunal Administrative Appeals Chamber Grants Registrant Permission to Appeal National Standards Set by Care Quality Commission

In Action for Care Limited v Care Quality Commission [2020] UKUT (HC/2729), Upper Tribunal Administrative Appeals Judge M R Hemingway has granted the appellant, Action for Care Limited, permission to appeal on two important issues which will have a significant impact on residential care services in England and Wales.

Action for Care Limited is registered with the Care Quality Commission (CQC) for the provision of personal care to people with learning disabilities and associated complex needs.

All care homes in the UK are registered, inspected and listed by the relevant authority, which in England and Wales is currently the CQC.

The care home sector is hugely important.  The care homes sector is worth around £15.9 billion a year in the UK, with around 11,300 care homes and 410,000 residents.

First, CQC maintained that where the number of residents in a residential setting fluctuated and the registrant intended to increase the residents, where capacity was available, then on each occasion the registrant is required to consult with all the existing service users, and their family and advocates, in meaningful discussion about not only the identity of the proposed new resident but whether there should be an increase at all.

If the resident was unable to participate in the consultation exercise then the registrant must make have regard to the provisions in the Mental Capacity Act 2005 and make an application to the Court of Protection in respect of each resident.

The residents were unable to engage fully in a consultation process.

The registrant contended that the provisions contained in the Health and Social Care Act 2008 did not require the registrant to undergo a consultation process, as proposed by CQC, and only had to have regard to whether the increase would impact on person centred care, namely the deliverability of care and treatment.

If the registrant had to undergo the proposed consultation process every time a new resident was being considered, then the cost of doing so would be excessive and out of all proportion to what was necessary and reasonable in all the circumstances.  If each registrant had to undertake what CQC was imposing as the national standard then it would cost the care homes sector eye watering sums of money which would be better invested in the care and treatment of residents.

Secondly, when determining “suitability” of premises for a resident, CQC asserted that a self-contained flat had to be at least 40 square metres, even though the relevant statutory provisions do not set any standard in respect of size.

The registrant contended that the Tribunal was wrong to set a national standard of at least 40 square metres.  It was contended that if Parliament intended to set a benchmark, then it would have expressly said so.

Judge Hemingway granted permission to appeal on both issues.

The decision will have an impact regionally and nationally.  Paul Ridout and his team are confident that the appeal will have a real and lasting beneficial impact and could save the care homes sector hundreds of millions.

Simon Butler, was instructed by Laura Paton at Ridouts Solicitors, a leading team of specialist health and social care lawyers