No horsing around in the care home sector

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In ACL v Care Quality Commission [2021] UKUT HC/2729/2019 (ACC), the Upper Tribunal, Administrative Appeals Chamber, has provided helpful guidance on the interpretation of regulation 9 and regulation 15 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the 2014 Regulations”). In respect of regulation 9 of the 2014 Regulations, the Care Quality Commission (“CQC”) introduced a national policy requiring a service provider to consult with existing service users prior to making decisions about how it would provide services. With respect to the suitability of accommodation given to service users, it was asserted by the CQC that regulation 15 required it to consider the service user’s likely or foreseeable future needs as well as current needs. The First-tier Tribunal (Health, Education and Social Care Chamber) (“F-tT”), including Lead Judge Khan, agreed with the CQC’s interpretation of the regulations.

The approach adopted by the CQC and accepted by the F-tT went too far and not only caused significant financial hardship to service users, but it also prevented service users from expanding their services to support the growing demand for care home services. The care homes sector is worth around £15.9 billion a year in the UK, with around 410,000 residents. An audible sigh of relief could be heard across the care home sector following the publication of the decision of Upper Tribunal Judge Hemingway. The Judge had no hesitation in concluding that the CQC and the FTT were incorrect as a matter of law on both points.

Does the list of things which have to be done as set out in regulation 9(3) mean there is an invariable duty to consult existing service users in each and every case and/or to conduct an impact assessment in relation to the where the introduction of new service users is being contemplated? The CQC asserted that the answer to the question is yes. The duties in regulation 9 specifically says that there is a duty to actively involve service users in decisions relating to the way in which the regulated activity is carried out. ACL submitted that there is no clear imposition, based upon the wording used in the regulation (see R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003] AC 687 and R (Flyde Coast Farms Ltd) v Flyde BC [2021] UKSC 18, [2021] 1 WLR 2794), of an invariable duty to consult all existing service users on each and every occasion where the admission of a new service user is under contemplation. The Judge held that:

“…It seems to me that had there been an intention to create such a clear, substantial, potentially administratively difficult (dependent perhaps on the number of existing service users at a site) and unvarying duty, such would have been said in clear terms. That has not happened.That, to my mind is a strong indication that the legislation does not impose such an invariable and specific blanket duty. Nor is there any mention, in terms, of any requirement to carry out, on an invariable basis, an impact assessment.”

In respect of regulation 15, the Judge held that the wording does not suggest that anything beyond suitability at the current time is contemplated. There is nothing in the relevant wording to indicate that reasonably foreseeable needs have to be taken into account. The Judge held:

“…I accept that a need which might at one point be thought to be reasonably foreseeable might not arise anyway. These are all points properly made by Mr Butler in support of his argument on the point. There is, to my mind, much force in those arguments. I accept that in imposing a reasonable foreseeability test the F-tT went too far and reached a conclusion not reflected in or permitted by the wording of the relevant provision…I conclude that not only current needs but those which are predictable and imminent have to be taken into account too.”

The Judge concluded that the F-tT made a material error of law in its interpretation of the regulations and set aside its decision.

The statutes which govern the powers of the CQC are extensive and complex. This case demonstrates that problems will arise from time to time which will require reference to the courts. The intelligibility of these statutes cannot be dissociated from the rules of interpretation followed by the courts, for the ability to understand a statute depends in the ultimate analysis on intelligent anticipation of the way in which it would be interpreted by the courts. Judge Hemingway provided a dramatic cure to the CQC’s treatment of the regulations, after it had been correctly diagnosed by ACL’s expert legal team.

Simon Butler (instructed by Ridouts Solicitors) represented ACL. To read the full decision, please click here.

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