The First-tier Tribunal has ruled in favour of the Care Quality Commission’s (CQC) decision to refuse an application submitted by Care Management Group Limited (CMG) to vary a condition of its registration and increase the number of people with a learning disability at one of its services.
CMG – a care provider running a large number of specialist support provisions across the country for people with learning disabilities and/or autism and behaviour that is challenging – applied to CQC in April 2017 to increase the maximum number of people at its Cherry Tree service in Essex from 7 to 10.
Situated on a congregate and campus site known as Lilliputs, the setting also includes two other CQC registered services, a children’s home registered by Ofsted and a day centre. Altogether, CMG may accommodate up to 26 people across those services on the site.
CQC refused CMG’s application on the basis it did not demonstrate it would comply with CQC’s policy ‘Registering the Right Support’ – as well as the underpinning national guidance – that states new services and variations to registrations within a campus and congregate setting should not be developed due to this model of care not being in the best interests of people with a learning disability.
National guidance includes ‘Building the Right Support’ (Supporting People with a learning disability and/or autism) and the accompanying transforming care national service model – as developed by NHS England (NHSE), the Association of Directors of Adult Social Services (ADASS) and the Local Government Association (LGA).
Prior to CMG’s application, CQC was also not assured that appropriate consultation had taken place with those who used the Lilliputs site, their families and advocates, or with local commissioners to identify local need.
CMG appealed CQC’s decision which was heard by the Care Standards Tribunal over seven days. This concluded on 6 July 2018 and the Tribunal’s judgement has now been published upholding CQC’s decision of refusal meaning the appeal is now dismissed.
Tribunal Judge, Siobhan Goodrich, said:
“We have found that the decision was plainly in accordance with the law, including the regulations.
“We also consider that the decision was necessary in pursuit of a legitimate public interest, namely, the protection and promotion of the health and well-being of future service users, who, if this provision were to be extended would be placed there despite the national recognition that this model of care, in a campus and congregate setting, is not the appropriate model in terms of according adequate respect for the rights of those with autism to live as ordinary a life as any other citizen.
“We attach very considerable weight indeed to the principles that underpin the respondent’s decision and to ‘Registering the Right Support’. In our view all three of the public interest objectives set out in section 3 of the Health and Social Care Act 2008 are clearly engaged in this appeal.”
Welcoming the decision, Andrea Sutcliffe CBE, Chief Inspector of Adult Social Care at CQC said:
“I am delighted the First-tier Tribunal has recognised that our decision was, and remains, ‘fair, reasonable and proportionate’.
“This recognises the important role CQC has in taking decisions about registration that protect and promote the health, safety and welfare of people with autism and learning disabilities – decisions that support and are informed by national and best-practice guidance.
“This objective is clearly set out in our policy, ‘Registering the Right Support’, and was at the heart of CQC’s decision to refuse CMG’s application to increase the number of people living at Cherry Tree on the Lilliputs site.
“I am proud of CQC, and in particular the registration, advisory and legal teams who worked on this application, for standing up for the rights of people who use services and I am determined that we will continue to do so.”
Viv Cooper OBE, Chief Executive of The Challenging Behaviour Foundation, said:
“People with learning disabilities have the same rights as everyone else to live in their local communities with the right support to enable them to lead fulfilling lives.
“There are many examples of people with complex needs living happily and successfully in their local community when they are in the right environment with personalised support that meets their individual needs.
“That is the model set out in Government policy and it is right that CQC should robustly challenge the development of large, segregated services that are not in line with this, so that service providers and commissioners invest in a range of high quality, local and individualised services to meet individual need.”
Julie Ogley, Vice President of ADASS, said:
“This decision is a key step towards helping people receive care which enables them to live fulfilling and independent lives, in their homes and communities.
“’Registering the Right Support’ plays a crucial role in making sure that registered care services are in line with the Transforming Care national service model, which is essential in making sure that people with learning disabilities feel they can play a full and active role in their communities. It will improve outcomes for these people and lead to less inequality, so it’s essential that this support is protected.
“This judgment has made the expectations of this guidance clear and commissioners and providers should take note – ADASS stands ready to support the sector.”
Ray James, National Director for Learning Disability at NHS England, said: “This judgement is welcome reinforcement of the importance of supporting people with a learning disability, autism or both to lead fulfilling lives in their communities. Consistent with national policy – as set out in Building the Right Support – it gives a clear message about the types of services that will be provided in the future to help ensure people get the very best care and support.”