Between 2023 and 2024, it is reported that the Care Quality Commission (CQC) has undertaken four prosecutions of businesses carrying out regulated activities without CQC registration. The list of prosecutions undertaken by the CQC since 2009 can be found here (last updated 4 June 2024 at the time of writing).
It is a criminal offence to carry out a regulated activity without being registered with the CQC under Section 10(1) of the Health and Social Care Act 2008. This offence is usually dealt with by the Magistrates Court and if found guilty, the court can impose an unlimited fine and/or a sentence of up to 12 months imprisonment.
In these four prosecution cases between 2023 and 2024, all pleaded ‘Guilty’ save for one case where the CQC was prosecuting the company found to be providing a regulated activity, as well as the individual director of that company. Whilst the company pleaded ‘Guilty’ at the first opportunity, the individual director pleaded ‘Not Guilty’ but was subsequently found ‘Guilty’ after a Trial in the Magistrates Court. In that case, the company was fined a total of £45,000 as well as £15,000 in costs and a £190 victim surcharge. However, the director was given a community order for 12 months to complete 200 hours unpaid work; disqualified from being a director of a company for three years; and was ordered to pay £500 costs and a £90 victim surcharge.
This case demonstrates the importance of determining whether you require registration with the CQC and the consequences of failing to do so. The CQC has always taken the view that it is a provider’s responsibility to review and revisit the regulations as and when they are setting up or making changes to their operating models in order to clarify their scope of practice in line with the relevant regulations. In our experience, providers often try to seek clarification on their registration position directly from the CQC but are usually just referred to the CQC’s Scope of Registration Guidance (Updated and re-published May 2022), or sometimes receive conflicting advice from the CQC’s general enquiry line. Unfortunately, contacting the CQC is no defence to the offence under Section 10 of the Health and Social Care Act 2008 and this would only act as mitigation in a prosecution.
Where a provider is unsure whether they fall within the scope of CQC registration, it is vital that they obtain specialist legal advice to confirm their position before undertaking any potential regulated activity and in order to protect themselves from any unnecessary and potentially damaging criminal enforcement action by the CQC. The question of whether a provider falls within the scope of CQC registration can often be a complex question which requires an in-depth analysis of the legislation and guidance against the individual business’ set of circumstances.
In recent years, the CQC appear to be taking a much more proactive approach to investigating and prosecuting potential unregistered providers and we have seen an increasing number of speculative ‘suspected criminal offence’ letters being issued to companies suspected of this offence. This is no surprise given that there has been an increasing number of different types of businesses being set up within the health and social care sectors in the last few years. The above example is just one example of a prosecution, however, the financial penalties can often be significantly higher.
Whilst the director in the above case did not receive a term of imprisonment, this is still within the Court’s sentencing powers and is a realistic possibility for anyone who knowingly continues to carry out regulated activities without registration over a prolonged period of time with no regard to the requirement to register with the CQC.
In order to reduce the likelihood of any criminal prosecution by the CQC, it is essential that providers ensure that they are appropriately registered with the CQC before carrying out any regulated activities. Where a provider has not done so, it is vital that they seek to remedy this immediately and if possible, cease all regulated activities pending a successful application for registration with the CQC. In the meantime, any responses to the CQC need to be carefully considered to avoid prejudicing a provider’s position further and to mitigate any potential action.
If you require specialist advice about the scope of your CQC registration, or you are facing a criminal investigation or prosecution by the CQC, we have a team of experienced CQC solicitors who would be happy to assist you. Call our specialist CQC solicitors now on 0161 696 6250.
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