CQC Warning Notices and how to respond

A Warning Notice is one of CQC’s most frequently used enforcement tools. It informs a registered provider or manager that CQC believes they have failed, or are failing, to comply with a legal requirement, and where the breach is continuing it sets a date by which compliance is required. There is a process for making representations to CQC, and the deadline is short.

Our Health and Social Care Team has considerable experience of challenging Warning Notices, securing their withdrawal where the evidence does not support them, and managing the relationships with commissioners that a notice can inevitably affect.

What is a CQC Warning Notice?

Section 29 of the Health and Social Care Act 2008 (“the Act”) allows CQC to serve a written notice on a registered person where it appears that they have failed to comply with a relevant requirement, for example certain regulations or conditions of registration. The notice must specify the alleged conduct, the requirement concerned and, where the failure is continuing, the time within which the registered person must comply. A separate provision, section 29A, applies to NHS trusts and foundation trusts.

CQC’s enforcement policy places Warning Notices at the lower end of its civil enforcement options and typically uses them for breaches it assesses as falling within the ‘medium’ range of seriousness, taking into account the impact on people using the service and the likelihood of recurrence. They can be issued for past breaches as well as continuing ones.

Why a Warning Notice matters

A Warning Notice is a formal finding of non-compliance and it forms part of a registered person’s regulatory history. If a Warning Notice is served, three key consequences are likely to follow.

There is also a protective side to a Warning Notice which providers may be reassured to note. If the registered person complies within the time specified, the Act provides that the earlier failure cannot then be used as a ground for cancelling or suspending the registration or varying its conditions, and CQC cannot bring criminal proceedings for an offence in respect of the period before the compliance date.

1

Publication

1

Publication

CQC may publish a summary of the Warning Notice in the inspection report and may also issue a separate press release if representations on this point are not made or are not accepted.
2

Notification

2

Notification

Under section 39 of the Act CQC must send a copy of the notice to relevant external bodies such as the relevant local authority or ICB where it has a material impact on the regulated activity being carried on. CQC shares the notice before the representation period has ended.
3

Escalation

3

Escalation

Failure to comply by any set deadline, or repeated breaches can be taken as evidence of weak leadership and governance under Regulation 17 and can be relied upon to support more severe enforcement action, for example a Notice of Proposal.

The 10-working day deadline

Representations against a Warning Notice must be made in writing within 10 working days of service. CQC does not accept verbal representations and it treats the factual accuracy process for a draft inspection report as entirely separate, so points relevant to the notice must be made in the representations themselves.

Representations can challenge the content of the notice, for example where it contains an error or is based on inaccurate facts, they can also challenge the reasonableness or proportionality of the notice and the legal test for issuing the notice. Representations can also address publication, setting out why it would be unfair to publish the notice.

How CQC deals with representations

Representations are considered by CQC’s National Representations Team, which is separate from the inspection team that issued the notice. CQC aims to respond within 20 working days. There are only two outcomes on content: the representations are upheld and the notice is withdrawn, or they are not upheld and the notice stands. CQC does not partially uphold representations. It can, however, decide not to publish a notice even where it has upheld its content. In such instances, CQC will make relevant external bodies aware of any errors or issues it has noted in the outcome letter to the registered person.

If the notice is withdrawn, CQC informs the external bodies that received a copy. If it stands, CQC will check that the registered person has taken action to comply with the legal requirements set out in the notice. There is no specific timeframe for CQC to do this and registered persons are encouraged to send confirmation if they have complied within any specified timescales. If CQC decides it needs to make further checks it can either telephone the registered person, ask an appropriate third party for information or carry out an assessment (for example, an unannounced inspection).

Appeals

There is no statutory appeal against a Warning Notice. However, if a registered person believes their representations haven’t been responded to appropriately, they can consider pursuing a complaint or judicial review.

Frequently asked questions

Should we make representations if the notice is broadly accurate?

Often, yes. Representations can be limited to the specific errors or the publication question, and a reasoned response demonstrates engagement. Silence is generally read as acceptance and could be referred to if CQC takes further action later.

Can we make representations by telephone or at a meeting?

No. CQC only accepts written representations, ideally on its standard form. A letter will be treated as representations if it is clearly framed as such.

What happens if we miss the deadline?

CQC is not obliged to consider late representations and the notice will be considered final. Contact us immediately if you have any concerns about the deadline.

Does complying with the notice mean the matter is closed?

Compliance within the specified time, and acknowledgement of this by CQC, means the earlier failure cannot be used as a ground for cancellation, suspension or new conditions, and it prevents prosecution for conduct before the compliance date. Reference to the issuance of a notice will still appear in the inspection report unless CQC has agreed not to publish it.

How we support providers

We can review the notice against the inspection evidence, draft representations on both content and publication, and where appropriate work with care consultants to evidence compliance ahead of any follow-up by CQC. We can also help providers manage communications with commissioners who have received a copy of the notice. We help providers put their best case forward with a view to achieving the best outcome possible. While there are no guarantees regarding outcomes, we have a good track record of persuading CQC to withdraw warning notices on both evidential grounds and the ground of proportionality.

Our health and social care team

Our specialist health and social care team is led by Neil Grant, who has more than 30 years’ experience in the sector, including acting for regulators. The team acts for care homes, domiciliary care agencies, supported living providers, GP practices, dental practices, independent hospitals and clinics across England.

If you require advice on any aspect of CQC enforcement, please contact Neil Grant or Samantha Burges on 01483 451 900.