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CQC decision “fair, reasonable and proportionate”
A First-tier Tribunal has ruled in favour of the Care Quality Commission’s (CQC) decision to refuse an application submitted by Action for Care Ltd to vary a condition of its registration. Action for Care had applied to increase the number of people it looked after at The Orchard - a residential care home located in Wistow, Selby.
The Orchard is one of 8 premises registered by Action for Care that look after individuals who have a learning disability or additional complex needs, including autism, challenging behaviour, epilepsy and communication difficulties.
On 6 February 2018, Action for Care proposed to increase the maximum number of people it provided care for from 6 to 8. They planned to provide the accommodation for the extra residents by making use of vacant en-suite bedroom and by using what it referred to as “the Bungalow”. This was a structure that had recently been converted from a double garage and workshop in a fenced-off area at the back of the care homes communal garden.
CQC visited The Orchard on 9 May 2018 to carry out a full assessment of the proposal. On 19 September 2018, the CQC made the decision to issue a Notice of Proposal (NOP) to refuse this application – citing concerns that the proposal was contrary to national policy guidance, specifically Registering the Right Support 2017 and Transforming Care 2012.
It was CQC’s view that the proposal was not “person centred” and did not consider “whole life” service provision, nor did it promote choice and control. Further to this it did not provide a model of care consistent with best practice and the views of the people using the service had not been sought. The conversion of the garage to a bungalow was not an appropriate home and did not support a person to live independently with support.
On 18 October 2018, Action for Care appealed the NOP and shared documentation from an “estates assessment” of “the Bungalow” carried out by Vale of York Clinical Commissioning Group.
This documentation was considered but on 21 December 2018, Action for Care were notified that a Notice of Decision (NOD), upholding the original decision had been made. On 25 January 2019, Action for Care lodged their appeal against the NOD.
The CQC did offer a compromise to allow an increase in the main house from 6 to 7 if an impact assessment was carried out, and to permit the use of the bungalow on a short term “respite” basis. This was rejected by Action for Care.
The hearing began with the three-person panel visiting The Orchard to carry out their own assessment. It was only after this visit that the panel heard oral evidence on behalf of both Action for Care and CQC.
In providing his conclusion to the hearing Tribunal Judge Timothy Thorne made it clear that he considered “everyone involved in this case, on both sides of the litigation were acting in good faith in what they considered to be in the best interests of vulnerable service users”.
Judge Thorne continued: “However, in light of the evidence before us we are driven to the conclusion that the proposal is inappropriate….by reference to the national guidance and policy. We conclude that the proposed increase in numbers and the extent to which it departs from national
policy and guidance create unacceptable and serious risks to service users in the provision of care…. we find that the decision was, and remains, lawful, fair, reasonable and proportionate.”
Welcoming the decision, Joyce Frederick, Deputy Chief Inspector, Registration at CQC said:
“I am very pleased the First-tier Tribunal has agreed with our decision to reject the application made to us by Action for Care. The proposed increase to the numbers of people they were looking after was not in the best interests of those who use this service, and indeed the new residents who would have moved into the facility. The providers had not consulted with those already living there and had not assessed the impact of the change on their lives.
“The panel agreed entirely with our analysis that the accommodation at The Orchard was not appropriate to provide care for more people than originally intended. Allowing registration in such circumstances would go against the “Transforming Care agenda” and would in no way conform to the “Registering the Right Support” guidance.
"We have an extremely important role in only permitting registrations that protect the health, safety and welfare of people with complex learning disabilities and/or autism.”
To read the First-tier Tribunal judgement findings in full, please visit: carestandards.decisions.tribunals.gov.uk//Public/View.aspx?ID=1465
- Last updated:
- 16 September 2019
Notes to editors
- The Tribunal’s decision is subject to an appeal period of 28 days from the date of the decision.
- CQCs guidance, Registering the Right Support’ – as well as the underpinning national guidance, Building the Right Support – states new services and variations to registrations for services for people with learning disabilities and/or autism should no longer be developed as a campus and/or congregate settings and principles of care should be followed which are good quality person-centred care in the community that enables greater independence, inclusion and choice, and the right to live an ‘ordinary’ life as any citizen.