Senior associate Katherine Wackett from law firm Mills & Reeve explains the Care Quality Commission’s section 31 enforcement powers to remove or vary a condition on a provider’s registration

 To provide certain healthcare services (known as regulated activities), healthcare providers must be registered with the Care Quality Commission. To ensure services are only provided at specific locations, the CQC attaches a condition to a provider’s registration that specifies services may only be provided at the locations listed in that condition. 

This was the not the expected approach when the legislation was made. It was expected that each service would have its own registration – therefore it was expected that the CQC would have to use section 30 of the Health and Social Care Act 2008 and seek approval from a justice of the peace in order to close a service on an urgent basis. 

It is a criminal offence to fail to comply with conditions on registration. The effect of this is, crucially, that a provider can only legally provide services at the locations specified on its certificate of registration.

CQC’s urgent powers 

Under section 31 of the Act, the CQC has the power to urgently vary or remove a condition on registration, including the condition specifying the locations at which regulated activity can be carried on. It can do this where it has “reasonable cause to believe” that unless it does so “any person will or may be exposed to the risk of harm”.

To do this, the CQC must simply give notice in writing to the service provider. Any such notice takes effect from the time it is given and there is no requirement (as with the section 30 cancellation procedure discussed in this column in the last issue) for the CQC to seek external approval from a justice of the peace. Section 31 also requires a lower threshold to be met before action can be taken, requiring that a person will “or may” be exposed to a “risk of harm” – this does not require that there “will” be “serious harm” (as with section 30 action).

As a result, it is often faster, simpler and more convenient for the CQC to take action under section 31 rather than section 30. In practice therefore, where the CQC wishes to take enforcement action against a provider, it is more common for it to vary the condition on registration which specifies the locations at which services can be provided, instead of cancelling the entire registration. Where providers have multiple services, this is the CQC’s only option if it wishes to close only one service on an urgent basis, rather than all of the services. This is concerning given that section 31 notices require no judicial scrutiny but have the same effect as section 30 notices, that is, the potentially immediate closure of a home or homes. 

If the CQC issues a provider with a section 31 notice and varies the condition of registration so that the provider is not authorised to provide services at a specific location, the provider will be committing a criminal offence if it continues to provide services at that location. It must therefore immediately stop providing services (for example, move all residents out of a care home), or it may attract further enforcement action, including criminal prosecution. 

Responding to action under section 31 

The CQC is aware of the effect that such notices can have on providers and in our experience, it will sometimes give providers a day’s notice before doing so to ensure residents can move safely, though it is not obliged to – and it does not always do so.

If a section 31 notice is served, this can be appealed to the First-tier Tribunal (FTT) within 28 days. Such appeals are dealt with on a fast-track basis, so a decision can be reached within just a few weeks of the notice being served. However, since the notice takes effect immediately, the decision to remove a location will stand (and a provider will need to stop providing services) until the FTT determines the appeal.  

Providers can avoid the risk of receiving a section 31 notice by keeping abreast of any concerns raised and by responding in a timely manner to problems identified during inspections. section 31 notices are typically only issued following a history of poor inspections and unresolved issues. In the event that you do receive a section 31 notice, or receive a warning to that effect, you should seek urgent legal advice.