Ivy Atkin

Care Quality Commission  
Citygate 
Gallowgate 
Newcastle upon Tyne 
NE1 4PA 

Telephone: 03000 616161 
Fax: 03000 616171 

www.cqc.org.uk 
www.cqc.org.uk 

Miss Stephanie Haskey 
HM Coroner’s Service 
The Council House 
Old Market Square 
Nottingham 
NG1 2DT 

21 March 2017 

Care Quality Commission  
Regulation 28 Report: Response of Care Quality Commission 

Dear HM Coroner Haskey 

I  write  in  response  to  the  Report  to  Prevent  Future  Deaths  that  was  issued  to 
CQC on 25 October 2016, following the inquest into the death of Mrs Ivy Atkin, 
with  assurance  of  the  action  the  Care  Quality  Commission  (CQC)  is  taking  in 
relation to your concerns.  

You  identified  the  following  concerns  and  advised  that  there  is  a  risk  of  future 
deaths unless action is taken: 

1. 

  had  criminal  convictions  including  for  an  offence  involving 
violence  against  another  person.  He  had  not  provided  a  Disclosure  and 
Barring  Service  (“DBS”)  certificate  to  the  CQC  nor  been  asked  to  do  so, 
before becoming Nominated Individual. 

2.  The  CQC  were  therefore  unable  to  assess  whether  or  not 

was  of  good  character  and  was  suitable  for  the  position  of  Nominated 
Individual, that person being responsible for  supervising the management 
of a Residential Care Home, a role which 

 undertook. 

3.  This is because the CQC expected and still expects a Provider to consider 
DBS  certificates  and  make  decisions  as  to  the  suitability  of  a  proposed 
Nominated  Individual,  where  the  Provider  is  (as  was  here)  a  limited 
company. 

4.  In the case of a small family owned limited company, where the controlling 
director and Nominated Individual are one and the same person, as in this 
case, there is therefore no reliable nor independent nor objective means of 

1 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 assessing  the  good  character,  safety  and  suitability  of  a  Nominated 
Individual. 

5.  This is because the wording of the present Regulation 6 of the Health and 
Social  Care  Act  2008  (Regulated  Activities)  Regulations  2014  (‘the 
Regulated  Activities  Regulations  2014’)  allows  for  such  a  “loophole”, 
and/or  in  the  alternative  the  manner  in  which  the  CQC  interprets  its 
powers and duties in the light of this Regulation allows for such a loophole. 

Given  the  seriousness  of  your  concerns  and  the  implications  it  could  present  a 
working group was set up comprising of CQC staff from various teams including 
representatives from operational inspection and registration teams,  Government 
engagement  team,  legal  team,  policy  team  and  our  strategy  team.  We  also 
liaised with colleagues in the Department of Health.  

Having given very careful consideration to the concerns you have raised we have 
concluded  that  CQC  should  not  directly  check  the  DBS  for  Nominated 
Individuals.  This  decision  was  authorised  by 
,  Chief  Inspector, 
Adult Social Care.  

CQC  check  systems  and  processes  to  ensure  that  providers  are  confident  that 
the individuals they are recruiting are suitable, whether as Nominated Individual 
or  otherwise.    In  the  case  of  registered  managers,  individual  providers  and 
partners within a partnership we do follow a fuller process and countersign DBS 
applications but this approach is based on risk both in terms of oversight and that 
they are registered persons.  

Legally  the  Nominated  Individual  is  not  registered  with  CQC.  We  see  their 
position  simply  as  the  corresponding  link  between  the  provider  and  CQC.  They 
may  have  other  responsibilities  within  the  service  such  as  registered  manager 
and suitability for checks will be carried out as necessary for any other roles they 
perform.  If  CQC  were  to  check  the  fitness  of  the  nominated  individual  on  an 
application  by  the  provider,  including  their  criminal  record,  we  would  have  no 
formal  recourse  except  to  refuse  the  entire  registration  which  would  not  always 
be  a  proportionate  response  or  one  we  would  typically  use.   The  Regulated 
Activities  Regulations  2014do  not  give  us  the  power  to  agree  or  refuse  the 
Nominated  Individual  as  we  can  with  others  who  are  registered  persons,  nor 
would we want to given our understanding and interpretation of their role. 

In  practice  we  may  refuse  registration  applications  if  we  are  not  satisfied  with 
individual  fitness  or  have  concerns  about  the  systems  used  by  the  provider  to 
appoint any of the individuals identified to us, including the Nominated Individual.  
However,  we  would  only  do  this,  regarding  the  Nominated  Individual,  if  we  had 
significant enough concerns to warrant refusal of the entire registration. It is also 
important to note that in terms of DBS checks specifically, reference numbers for 
nominated  individuals  are  sought  only  at  registration  stage  and  not  post 
registration if the nominated individual changes. 

2 

 
 
 
 
 
 
 
 
 In  the  Autumn  Grange  case  it  is  probable  that  if  we  had  have  had  sight  of  the 
DBS  of 
  we  may  not  have  refused  the  registration  or  raised  concerns 
with  the  provider.    This  is  because  a)  the  convictions  on  his  record  pre-dated 
2000  and  taking  account  of  the  Rehabilitation  of  Offenders  Act  1974  it  is  likely 
that  they  would  have  been  deemed  “spent”  b)  they  were  for  relatively  minor  or 
unrelated  matters  albeit  it  is  correct  that  a  common  assault  conviction  may  be 
more relevant when considering work in the care sector and c) any response we 
take must be proportionate to identified risks. 

Since  Autumn  Grange  closed  in  2012,  the  regulations  have  changed  and  now 
include  Regulation  5  of  the  Regulated  Activities  Regulations  2014,the  Fit  and 
Proper Persons Requirements (‘FPPR’).  This regulation was not in force in 2012 
and it does now provide a partial solution to the matters raised.   

Regulation  5  allows  CQC  to  have  greater  oversight  of  the  appointment  of 
directors and gives us the power to take regulatory action where the regulation is 
breached.  However, the role for CQC is still only to check that the provider has 
fulfilled  their  responsibility  regarding  the  fitness  of  directors  not  to  check  the 
individual  director’s  fitness.  Nor  do  CQC  check  DBS  certificates  as  a  default.  
Through Regulation 5we expect diligent enquiries to be made by providers at the 
appointment stage and effective performance management for the duration of the 
appointment.    These  checks  will  go  beyond  just  DBS  enquiries.    If  CQC  has 
concerns, we have the power to check the specifics of the DBS and if we decide 
that the concerns warrant enforcement action then changes to directors may take 
place  as  a  consequence  of  that  action.    Furthermore,  we  would  require  greater 
assurance  where  the  director  and  nominated  individual  is  the  same  person,  a 
situation which is more common amongst small providers.  As part of continuing 
review  of  the position one  option  in  the future  may  be  to formalise  independent 
checks  but  work  is  ongoing  to  consider  how  this  would  operate  in  practice  and 
where the responsibility would lie in performing such checks. 

An  issue  does  however  remain  that  FPPR  may  potentially  be  less  effective  in 
small  providers  due  to  the  risk  of  overlap  between  directors  and  nominated 
individuals  or  other  senior  managers  and  the  potential  lack  of  assurance  this 
would  provide  that  proper  checks  were  being  carried  out.    Work  is  currently 
underway  to  evaluate  how  CQC  use  the  fit  and  proper  person  test  and  it  has 
been identified as part of this work that there continues to be risks within smaller 
providers.    In  practice  our  registration  teams  may  address  this  risk.  Work  is 
underway  to  develop a  triage  system for registration  applications to  ensure  that 
higher risk applications go through an appropriate process, and to streamline our 
processes  for  those  that  are  lower  risk.  The  size  of  provider  organisations  is 
being  explored  as  a  potential  risk  factor  within  this  work,  to  ensure  that  such 
applications continue to be given appropriate consideration.  It is anticipated that 
changes will be made with regard to these areas during 2018.  

3 

 
 
 
 
 
 
 
 
 
 I  hope  this  response  is  helpful  to  you,  should  you  wish  to  discuss  the  matter 
further please do not hesitate to contact me.  

Yours sincerely 

Head of Inspection 
Adult Social Care – Central East Midlands 

4

a From David Mowat MP

Parliamentary Under Secretary of State for Community Health and Care

Department
Richmond House
of Health 79 Whitehall
London
SWIA 2NS

Miss Stephanie Haskey
Assistant Coroner
Office and Main Court
The Council House

Old Market Square
Nottingham

NG1 2DT

Thank you for your letter dated 25 October 2016, following the inquest into the death of Ivy
Atkin.

| was very sorry to hear of Mrs Atkin’s death. Please extend my sincere condolences to her
family.

You have raised the following matters of concern:

e the Care Quality Commission (CQC) expects a provider to consider Disclosure and
Barring Service (DBS) certificates and make decisions as to the suitability of a
proposed Nominated Individual, where the provider is a limited company

e In the case of a small family owned limited company, where the controlling director
and Nominated Individual are one and the same person, there is no reliable,
independent or objective means of assessing the good character, safety and
suitability of a Nominated Individual.

e You feel that the wording of the present Regulation 6 of the Health and Social Care
Act 2008 (Regulated Activities) Regulations 2014 allows for what you believe is a
“loophole”, and/or in the alternative, the manner in which the CQC interprets its
powers and duties in the light of this Regulation allows for this.

In responding to the serious issues that you raise, Departmental officials have worked
closely with the CQC; this response will also refer to the separate response that the CQC is
sending to your letter.

The issues of concern that you raise relate partly to the way in which the legislation
governing CQC’'s regulation of providers is established (which is the responsibility of the
Department of Health) and partly to the way in which the CQC undertakes its regulatory
duties. This response will therefore refer to both the legislation that underpins the regulatory
system and the operational practice of the CQC, which is covered in more detail in the
CQC’'s own response.

a From David Mowat MP

Parliamentary Under Secretary of State for Community Health and Care

Department
Richmond House
of Health 79 Whitehall
London
SWIA 2NS

The underpinning principle of the regulatory regime in health and social care is that
providers remain responsible for the management and delivery of the care that they offer.
The role of the CQC is to assess providers to give assurance that they are taking the
necessary steps to fulfil their legal duties and, where appropriate, to take regulatory
enforcement action if providers are failing in their duty. In the view of the Department of
Health, it would be neither desirable nor practical for the CQC to take on a role in which it
was overseeing the management decisions of providers. For this reason, the legislation is
established in a way that requires providers to demonstrate to the CQC that they have
appropriate systems and processes in place to manage and oversee the care that they
provide. This includes systems that provide assurance as to the suitability of management
and staff within care providers.

You raise concerns around the role of the nominated individual, particularly the fact that
CQC does not check DBS records for individuals fulfilling this role. The role of the
nominated individual is essentially that of a point of contact between the care provider and
the CQC for the purposes of correspondence and other regulatory business. For this
reason, the nominated individual is not registered directly with the CQC. This is different in
the case of Registered Managers, who are legally responsible for the care being delivered
within care organisations; these individuals are registered directly with the CQC, and
therefore vetted more closely by CQC upon registration.

If the CQC has concerns about the recruitment of a nominated individual within an
organisation, they would have recourse to their general powers which they can use in
relation to any concern regarding the management of a registered service, for example to
refuse a registration request or impose conditions upon the registration of a provider. Given
the primarily administrative role of the nominated individual, Departmental officials are
content that this position offers proportionate assurance, and that this system should be
maintained.

CQC’s response to your letter also details changes to the legislation that have come into
place since 2012 relating to the Fit and Proper Persons Requirements (Regulation 5 of the
Heaith and Social Care Act 2008 (Regulated Activities) Regulations 2014). These
regulations require that a provider must check that an individual is of good character, with
the necessary skills and qualifications and has not been involved in previous misconduct or
mismanagement before they can be appointed as a director of a provider. This regulation
places wide duties of diligence on providers, and the CQC’s role will be to ensure that
providers have proper systems and processes in place to undertake these assessments. If
the CQC has concerns about the process of decisions that a provider is taking when
appointing directors, it can use its regulatory powers.

The CQC has identified that a greater risk exists in providers where a small number of
individuals may be operating as directors and managers, as there is less independent
assurance that proper checks are being carried out. The CQC’s response to you has
detailed work that it is undertaking to consider how the CQC can best use the legislative
and regulatory powers it has under the Fit and Proper Person’s Requirements to target this

Bs From David Mowat MP

Parliamentary Under Secretary of State for Community Health and Care

Department .
of Health ser Whitehall
London
SWIA 2NS

risk. The Fit and Proper Persons Requirements are relatively newly introduced into
legislation; the CQC is working to learn from its use of these regulations to date, and
introduce new processes which will offer a higher level of oversight for those providers that
pose greatest risk in this area. For this reason, we are content that the existing regulations
are sufficient in providing the CQC with the powers they need to oversee providers’
appointment of directors.

| hope that this response, along with the one you receive from the CQC, is helpful and | am
grateful to you for bringing the circumstances of Mrs Atkin’s death to my attention.

Ds Sie,

DAVID MOWAT