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

News

16/07/2020

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

Featured Counsel

Simon Butler

Call 1996

Latest News & Events

The Dekagram: 20th May 2024

We trust that our readers have been enjoying the Spring sunshine; the team have spent their time in the sun wisely, reading cases so you don’t have to. First we noted a decision which considers the interplay between English and Scottish guardianship; secondly we read…

The Dekagram: 13th May 2024

Last week brought the news that the Australian airline Qantas and the Australian Competition and Consumer Commission have agreed to resolve their dispute over cancelled flights by asking the court to impose a $100 million fine, together with an undertaking by the airline to pay…

Max Melsa appears in Court of Appeal in Re D (Children: Interim Care Order: Hair Strand Testing) [2024] EWCA Civ 498

Max Melsa represented the children, through their Children’s Guardian, in the first case to reach the Court of Appeal specifically dealing with the interpretation of Hair-Strand Tests in care proceedings. The appeal was made by the mother against the interim separation of three children from…

Subscribe to our mailing list

Deka Chambers: 5 Norwich Street, London EC4A 1DR

© Deka Chambers 2024

Search

Portfolio Builder

Select the expertise that you would like to download or add to the portfolio

Download    Add to portfolio   
Portfolio
Title Type CV Email

Remove All

Download


Click here to share this shortlist.
(It will expire after 30 days.)