Last updated: 14 June 2020

Since publishing ‘Registering the Right Support’, CQC has been much more restrictive in accepting applications increasing the number of service users in locations for people with learning disabilities and/or autism.  This post draws from appeals heard by the Tribunal against decisions by CQC to refuse such applications.

The table set out below summarises the appeals.

Date of decision / Case

 

Application Appeal outcome Reasons
20 April 2020

 

Bleak House Limited v CQC

 

Increase number of service users from 19 to 24 Appeal dismissed 1.      ­­­National policy and guidance apply to all LD services, not just those for people with autism and/or challenging behaviour.

2.      Smaller services are more likely to be produce better outcomes for adults with LD.

3.      Choices were based on or influenced by group preference.

4.      The large prominent premises diminished the benefits that accrued to those who live in the community.

5.      Lack of objective evidence to show that the larger setting was capable of delivering better practice than smaller settings.

6.      The proposal did not amount to a genuinely innovative model of care.

7.      Very limited evidence of support from the LA, and no LA witness was put forward to answer questions at the hearing.

8.      Not clear who would be taking up the additional places.

9.      There would need to be compelling reasons backed by LA commissioners showing a critical local need to justify an increase in service users.

10.   No formal impact assessment had been carried out by Directors or Manager.

11.   Inadequate consultation with residents and those acting on their behalf.

 

See here for further comment on this c ase.

27 August 2019

 

Action for Care v CQC

 

Vary conditions – increase maximum number of residents from 6 to 8.

 

Appeal dismissed. 1.      Appellant failed to consult with service users, their families and representatives about whether there should be new service users.

2.      The impact on the current service users was not considered adequately or at all.

3.      There was no evidence of plans to mitigate the risk of increasing the numbers of residents at the location.

4.      Residential accommodation for those with autism should be in small, local community-based units of not more than six people and with well supported single accommodation.

5.      The location would not meet the present and future needs of a proposed service user as his mobility was deteriorating and this was not catered for in the design.  It was too small for people with proxemic issues (people who need space) and wheelchair users.

6.      The bungalow was too small for able bodied persons and was much too small for those with mobility issues.

7.      There were no kitchen or laundry facilities, and no space for them.

8.      Accommodation should be as close to a normal home as possible which was not the case in respect of the proposed accommodation.

9.      There was no evidence of attempts to meet the proposed service user’s needs in other accommodation.  There was therefore inadequate evidence that there was a local need for this type of accommodation.

 

23 July 2019

 

 

Lifeways Community Care v CQC

Add a location – 9 service users (original application was for 10) in a series of adjoining single storey buildings.

 

Appeal dismissed. 1.      National policy and guidance is to be followed except in exceptional or compelling circumstances.

2.      National Learning Disability Director and Senior Responsible Officer for the Transforming Care Programme said that site was ‘not close to…. what is an appropriate setting’ and had ‘many of the characteristics of the campus and congregate sites that are …. inappropriate’.  The home looked institutional because of its size and how it stood out from its surroundings.

3.      Focus should be on more independent living arrangements, not large residential provisions.

4.      The evidence of CQC’s National Professional Advisor for Learning Disabilities was not biased and was highly persuasive.  Her evidence was that the application did not meet national guidance because, among other things ‘it is not small-scale, is not domestic in style and is clearly different to the houses in the local area.  It has the appearance of a care facility, not of typical housing….It was a cluster model of service which has some features of a campus’.

5.      Another persuasive expert said the proposed home was very different to housing around it.  It had an institutional feel and created a sense of otherness.  It was placed in the community, but apart from it.

6.      The appellant’s own witness accepted that the proposal was not in accordance with national policy and guidance.

7.      Large spaces, communal garden and parking spaces increased the sense of and institutional campus style setting.

8.      The CCG had not been consulted and would have preferred small settings consistent with Registering the Right Support.

9.      The Tribunal visited and found the home had an institutional look and campus style which stood apart from the surrounding neighbourhood.  It was large and had many shared facilities.

10.   Service user groups had not been clearly identified by the appellant.

 

18 October 2018

 

Centurion Health Care Limited v CQC

 

Add a location – adding a further separate unit of 8 residents on a site with an existing unit of 6 residents.

 

Appeal allowed. 1.      The new unit was independent of the first and the site was not a campus style (as this was not a group or cluster of homes with shared facilities).

2.      CQC failed to exercise its discretion appropriately because it did not analyse the nature of the service users who would be placed at the location.  The decision had a whiff of policy about it.  CQC failed to consider whether conditions could have addressed any of its concerns.  They applied a ‘one size fits all’ approach contrary to its own guidance.

3.      Service users, like other people, should be able to choose whether or not to live in a town, city or village.  Service users with particular disorders may benefit from the peace of a rural setting.

4.      CQC wrongly equated geographical location with lack of engagement with the community.

5.      The commissioner’s market statement recognised the need for more ASD accommodation, including in rural locations, to avoid out of area placements.  There was accordingly a need for the location.

 

8 August 2018

 

Care Management Group Ltd  v CQC

 

 

Adding further 3 places increasing the maximum number to 10 in total. Appeal dismissed. 1.      No evidence of consultation with service users, their families or commissioners.

2.      ‘Registering the Right Support’ is statutory guidance, and even if were not, it is a material consideration.

3.      The setting was of a campus type.  It was distinctly congregate and institutional and precluded a feeling of a small-scale domestic setting and person-centred care.

4.      Recreational features and facilities involved timetables and are not used by the community at large.  Life was regimented and far removed from small scale settings within a community.

5.      Access to the community was limited, affecting the options, choices, dignity and independence others take for granted.

6.      Few people came onto the site, apart from courting couples (which provided an indication of how secluded and private it was).

7.      Distance from the community would have affected the amount of time that could be spent in the community.

8.      Lack of shared staff is not determinative of whether a setting is a ‘campus’ but in any event there were some shared staff.

9.      Service users were isolated from others; both within the setting and within the wider community.

10.   There was no real choice as to who residents would live with.

11.   “Quality of life improves with inclusion and when rights are fully respected.  [CQC’s National Professional Advisor for Learning Disabilities] does not recognise a separate group of people…. who cannot live in the community….. Experience shows that challenging behaviour is often reduced in the community”.

12.   It was not the Tribunal’s task to say whether guidance was right or wrong; it was to apply it in the context of the evidence, subject to proportionality.

13.   When registering services, CQC has a role in promoting the outcomes set out in national policy.  It is entirely appropriate for CQC to base regulatory decisions on ‘best practice’.

 

26 June 2017

 

Oakview Estates Ltd v CQC

Add a location – a residential unit of 6 beds, 18-65, on a site with an existing hospital already containing 23 beds over 3 buildings.

 

Appeal dismissed. 1.      Inadequate access to the community hindering ability to improve independence.

2.      Premises were clinical and not personalised.  There was no plan as to how residents would be able to regain access if they left the bungalow.

3.      Accommodation would need to be adapted to the least able person, impacting adversely on the others.

4.      No discharge plans or evidence that placement and discharge plans would be regularly reviewed (despite this being raised in the notice of proposal).

5.      Training plan had not been drafted.

6.      The same staff were to be used in the hospital and the care home despite different cultures between the two locations, in particular the hospital being more clinical.

7.      The culture is unlikely to change from a hospital setting.

 

 

Based on the decisions, providers can maximise their prospects of success by taking the following actions:

Before build

  • Read relevant guidance (set out at the end of the post) and design your services to comply with it.
  • Consider whether the service can be provided as supported living rather than residential care. There is often a fine line, and grey areas, between the two.  Seek legal advice on whether your new service can be configured as supported living.  If it is at all possible to avoid registration as a residential home, that is likely to be the best option in most cases.  There may be options you have not considered, such as leasing your property to a housing association that in turn leases it to service users.
  • Design accommodation so that it is as close to normal housing as possible, rather than institutional.  It may be useful to think of, and refer to, the accommodation as ‘homes’ rather than ‘units’.  Homes should have their own facilities (kitchens, laundry, lounges) and not be dependent on other buildings.
  • Avoid homes with more than 6 residents.
  • Consult meaningfully with service users and their representatives about your designs, your proposal to increase service user numbers, and the characteristics of who would live there. Respond to their views.
  • Draft assessments as to how additional residents may affect current residents, and draft plans to mitigate any adverse effects.
  • Obtain concrete evidence in writing from local commissioners about the need for the provision. Check local commissioning strategies and fit in with them.
  • Embed access to local community places and resources (including health and social care) in your plans. How will service users have similar access to those without learning disabilities and/or autism?  How will they, on a daily basis, do things outside their homes if they wish?
  • Embed options, choices, dignity and independence into your plans. Ensure there are a wide range of options available outside the grounds for people to choose from.  What educational, training, employment and leisure opportunities are there outside the grounds?
  • Plan the provision so that there are no shared staff and facilities between homes on the same site. As with accommodation for most people, leisure facilities should be accessed outside of homes rather than on the grounds.
  • Draft a comprehensive training plan to show how staff recruited would meet the needs of intended residents.
  • Ideally, any new home should be completely separate from others on the same site. If CQC accepts that it is appropriate for the application to be for a new location, rather than to increase the numbers in any current location, that will assist in showing that the home is not of a campus or congregate style. It may be appropriate to divide plots of land to reduce the feeling that the new location is on the same site as an existing service.
  • Try to engage with CQC about your plans (though be prepared that CQC may decline to do so until you have submitted an application).
  • Design the homes so that they are suitable for residents to live there in the long-term. Satisfy as much as possible of the ‘Real Tenancy’ test (see guidance documents below).
  • If the home is not appropriate for residents in the long-term you will need to make a strong case that the residents cannot be housed in more independent living and that discharge planning is embedded into your plans.
  • Consider putting your plans to a relevant expert in learning disabilities and/or autism, and a healthcare lawyer. Ironing out issues at this stage could improve your chances and reduce wasted costs down the line.

 

Before applying

  • Ensure that the application deals with all the matters above in detail and provide evidence in support. Satisfying CQC at this stage is the quickest and lowest cost option, so it merits investment of time.
  • Again, seeking expert and legal advice before submitting your application may improve your prospects of success.

 

Notice of Proposal stage

  • If CQC proposes to refuse the application, you have 28 days to submit representations.
  • Read the notice carefully and ensure that you respond to each and every point. One of the appeals listed below was unsuccessful, in part, because the provider did not address discharge planning, which was raised in the notice of proposal.
  • Be realistic that CQC is more likely to accept your representations if you reassure CQC about the issues it raised, rather than disputing them.
  • However, if you think CQC’s judgment is wrong on a particular issue, explain why and provide strong evidence to support that view.

Appeals

  • Think carefully about who can give weighty evidence in support of your case. If a highly regarded, independent expert in learning disabilities and/or autism regards your proposal favourably, that could carry some weight.
  • Consider calling commissioners who are supportive if they can clearly express how your service will benefit residents. Preferably, the evidence will support the proposition that your service is a good long-term option for some residents and will afford them a high quality of life with extensive choices in the community.  Otherwise, the evidence should explain why some residents are not yet ready for independent living (with examples of some failed placements before) and how your service will assist in that pathway.  Probe their views carefully before taking this course.  In one of the appeals below, a commissioner conceded the provider’s service did not conform with guidance.
  • Surprisingly, the evidence of families was not that important to the Tribunal in any of the cases.

 

GUIDANCE

 ‘Building the Right Support’, October 2015

Registering the Right Support’, CQC, June 2017.

‘Transforming Care: A national response to Winterbourne View Hospital’ (2012).

Learning disabilities and behaviour that challenges: service design and delivery’, NICE (March 2018)

Living in the Community.  Housing Design for Adults with Autism’, Andrew Brand, Kingswood Trust.­­­­

Creating Autism Friendly Spaces’, Simon Humphreys, National Autistic Society.

Supporting people with a learning disability and/or autism who display behaviour that challenges, including those with a mental health condition’, LGA, ADASS, NHS England, October 2015.

Planning Your House’, Challenging Behaviour Foundation.

The Real Tenancy Test – tenancy rights in supported accommodation’, National Development Team for Inclusion, revised November 2015

 

If you would like to discuss an existing application to CQC, or are considering applying, please do not hesitate to call me:

Jonathan Landau, Barrister

5 Chancery Lane
London, WC2A 1LG
DX: 182

Telephone: 0207 406 7532

Mobile: 07980 897 429

Email: jlandau@healthcarecounsel.co.uk

https://healthcarecounsel.co.uk/

 

 

 

 

 

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