October 24, 2018 Legal

Centurion Healthcare Ltd v CQC [2018] 3264.EA – First Tier Tribunal concludes CQC did not exercise its discretion appropriately in applying Registering the Right Support Guidance

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In August this year I wrote of my growing concern about the CQC’s rigid approach to registration of services for people with learning disabilities/autism. (https://www.ridout-law.com/ridout-report-august-2018-not-registering-the-right-support/)
My concerns were around the CQC’s apparent failure to properly exercise its discretion when applying the Registering the Right Support guidance to registration applications.
The experience of many of our provider clients was that, even in the face of compelling evidence that they would promote enablement, independence, choice and inclusion, the underpinning principles of Registering the Right Support, CQC were refusing their applications.
This appeared to be a policy position on grounds that they would not comply with Registering the Right Support to the letter. This was usually because they did not fit exactly within the preferred model of 6 beds or fewer or because they had an out of town location.
In an important decision for one of our Clients and indeed for the sector, Centurion Health Care Limited v CQC [2018] 3264.EA, the Tribunal carefully considered the Care Quality Commission’s interpretation and application of its Registering the Right Support Guidance.
The case involved an application by our Client, an established provider, with a strong track record of providing high quality person-centred care for adults with complex learning disabilities and autism, to add an additional location to its registration to add a 6 bedded unit, Penley View, adjacent to its existing 6 bedded service at Penley Grange.
CQC had refused the application for registration on the basis that it would not be compliant with the principles of Registering the Right Support. Reasons cited included CQC’s contention that our Client was simply seeking to double the size of its existing service rather than provide a truly independent second service. It was further argued that even if it was an independent service, it’s geographic location and proximity to the existing service would make it a congregate or campus setting.
The Tribunal were satisfied with our Client’s evidence that Penley Grange and Penley View would be two separate homes run independently of each other with their own ethos and approach to their Clients and their own staff teams.
The Tribunal did not accept the CQC’s argument that the presence of two units on one site in this manner creates a ‘campus’ type environment. The Tribunal found that: “Two homes cannot by definition cluster and there are no shared facilities. By any reading this cannot amount to a campus setting.”
The Tribunal went on to consider whether the existence of two homes on the same site would create a ‘congregate setting’. The Tribunal endorsed the use of the phrase “congregate” in the guidance seeks to avoid the isolated institutional type of setting highlighted in the Winterbourne View scandal. However, the Tribunal was:
“troubled by this phrase and the context in which it appears in this case. As used by the CQC in the context of this application it appears to relate to isolation from the community as a whole. Furthermore, that isolation appears to have taken on a Geographical context that does not appear anywhere in the definition.”
Our Client had always been clear that it was their intention to provide a service for individuals with very complex needs, some of whom require 1:1 or 2:1 care. For some of the proposed service users, space and quiet would be paramount to meeting their needs. The Tribunal accepted the evidence that it is extremely unlikely that any of the proposed service users of Penley View would be able to access the community independently.
As such, the Tribunal was critical of “the lack of any assessment by the CQC of the nature of the service users who would be placed at Penley View” when considering the issue of a congregate setting. They found that “There appears to have been no attempt to consider specific groups of service users and whether the two homes separately would meet the specific and specialist needs of the service users that they cater for.”
They also considered the argument by CQC that the site is geographically isolated. The location is about a mile from the nearest town. The Tribunal did not accept that this amounted to geographic isolation. Furthermore, they were critical of CQC equating geographic isolation with lack of engagement with the community.
The Provider gave compelling evidence as to how they would facilitate community engagement for service users in a way that promoted their choice and independence. The Provider was already doing this at the adjacent service at Penley Grange and the indeed, the CQC’s most recent inspection report of Penley Grange (rated Good) was clear that the service had good links with the local community and that service users were supported to access and be included in it. The Tribunal were satisfied that “the residents of Penley Grange interact with the community as much as they are able” and were “confident that the residents of Penley View will be similarly assisted.
Very importantly, the Tribunal underlined that choice is a fundamental principle of the Registering the Right Support guidance. They were concerned that, following the CQC argument about location, would mean denying choice to this group of service users. Not all service users need or want to live within a town city or village and CQC should not seek to deny them this choice. The Tribunal recognised that, given the sensory needs of many people with the disorders catered for at Penley View, the peace of a rural setting may meet their needs far better than the hustle and bustle of a town house.
Ultimately, having considered all the evidence, the Tribunal concluded that it did not consider that CQC had exercised its discretion appropriately and that they had failed to properly evaluate the application.
The Tribunal considered that CQC had failed to consider the particular service user group that the proposed service would cater for and concluded that:
“CQC have “fallen into the very trap that their own guidance warns against: “We do not wish to be overly prescriptive, and it is not our intention to create a ‘one size fits all’ approach.”
This is a welcome decision for the sector and underlines that CQC must adopt a rational approach to the application of the Registering the Right Support guidance on a case by case basis. Applications should be looked at holistically including consideration of the needs of the individuals to be catered for. By its very nature the guidance allows a measure of discretion when reaching registration decisions and, as a public body, CQC must exercise this discretion appropriately.
For many individuals with learning disabilities or autism, accommodation in the format advocated by the national guidance will be the right decision. But guidance is only guidance. Some individuals will have levels of need such that small scale supported living is not appropriate. Others may simply wish to choose alternative options. This choice must be respected. Decisions should be based on what is right for each individual and not a prescriptive ‘one size fits all’ interpretation of the guidance.

 

By Laura Paton – Ridouts Professional Services

Centurion were represented by Jake Richards and Simon Butler of 9 Gough Square, instructed by Laura Paton of Ridouts Professional Services plc.

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