It was ‘fair, reasonable and proportionate’ for the First Tier Tribunal (Health, Education and Social Care) to refuse a care provider’s application to increase the number of people with a learning disability at one of its services.

This was the decision in Care Management Group Ltd v Care Quality Commission[1].The full decision can be read here.

A provider seeking to increase its provision for people with learning disabilities must be aware of CQC policy and national guidance which aim to protect and promote the health and wellbeing of service users.

Background

Care Management Group Ltd (CMG) runs over 120 services across the UK, providing specialist support for people with learning disabilities and particularly complex needs.

The ‘Lilliputs’ campus site in a ‘secluded’ congregate setting operates four services including ‘Cherry Trees’. This bungalow accommodation with 24 hour staff support, provides access to a central complex with entertainment, therapy and learning facilities. There are 10 bedrooms within the Cherry Trees complex.

A ‘campus’ setting is defined by the CQC as group homes clustered together on the same site and usually sharing staff and some facilities.

‘Congregate’ settings are defined as separate from communities and without access to the options, choices, dignity and independence that most people take for granted in their lives.

The CQC decision

Cherry Trees is registered with the CQC as a location to accommodate 7 service users. CMG applied in April 2017 to vary a condition of registration to permit an additional 3 places, increasing the maximum number to 10. This was refused for failure to demonstrate compliance with the Health and Social Care Act 2008 (Regulated Activity) Regulations 2014, in particular failure to:

  • Comply with CQC guidance ‘Registering the Right Support’ (RTRS), which states that variations to registrations within a campus and congregate setting should not be developed as this model of care is not viewed as being in the best interests of people with a learning disability.
  • Follow national guidance ‘Building the Right Support’ (Supporting people with a learning disability and/or autism) – the Lilliputs site was deemed geographically isolated by being 10-15 minutes’ walk from public transport stops and the nearest housing community. This presented ‘clear barriers to person centred care/dignity and respect for residents of a care home.’
  • Consult local commissioning groups, contrary to best practice. Therefore, there was a failure to evidence that the increase in numbers was required by and in response to local need.
  • Provide evidence that residents would not be admitted regardless of originating locality, thereby failing to comply with the transforming care agenda implemented post-Winterbourne View.

Tribunal hearing

The Tribunal stated that its duty was to consider the application de novo and that the burden was on the care provider to persuade them that the variation to the existing registration should be granted. The key arguments put forward by CMG were that:

  • the spaces already existed,
  • the service had existed for a long time; it was not new,
  • the setting could not properly be defined as being ‘congregate’ or ‘campus’,
  • it had existed before the RTRS guidance had come into force, and
  • RTRS was not statutory guidance.

The Tribunal recognised that this case involved ‘important points of principle regarding the status and/or meaning and/or application of a raft of national policy guidance.’

It found that the CQC’s decision had been fair, reasonable and proportionate for reasons including the following:

  • There had been no consultation, until after the application to vary had been made, of service users and their families, or of local commissioning groups – contrary to national guidance.
  • RTRS is statutory guidance and, even if it were not, it was national guidance that the appellant was required to comply with.
  • The ‘direction of travel’ in public policy on care provision is that campus/congregate settings are not the best service model for this vulnerable user group. The standard to be attained is to enable service users to live ‘as ordinary a life as any other citizen’ and campus/congregate settings are deemed to not support the autonomy, independence and involvement in the community.
  • It is a legitimate aim and in the public interest to discourage the expansion of campus and/or congregate settings, which are also a greater cost to the public purse.
  • CQC registration decisions should not be about facilitating the filling of spaces which already exist. Its correct function is to protect and promote the welfare of service users.

Learning points for care providers

  • Guidance and public policy requires movement towards a small, domestic model of care, including individual placements in community settings, and will require a ‘re-engineering’ of services.
  • Evidence of current demand for an increase in services, or even that all new spaces would be filled, will not necessarily persuade the Tribunal to grant an application for expansion.
  • Applications for a variation of existing registration where an extension of existing and well-established services is sought will be considered in the round, and will not necessarily be easier to obtain.
  • An important consideration for the Tribunal will be that, once granted, a variation in registration exists in perpetuity (subject to enforcement action).