From David Mowat MP Parliamentary Under Secrelary 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 ed }css /Gd' 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: the Care Quality Commission (CQC) expects a provider to consider Disclosure and Barring Service (DBS) certificates and make decisions as to the suitability of proposed Nominated Individual, where the provider is a limited company 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: 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 "loophole" , andlor 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:

From David Mowat MP Parliamentary Under Secretary of Stale for Communily Health and Care Department Richmond House of Health 79 Whitehall London SWIA ZNS The underpinning principle of the regulatory in health and social care is that providers remain responsible for the management and delivery of the care that 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 that requires providers to demonstrate to the CQC that they have appropriate systems and processes in place to manage and oversee the care that - 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 concems about the recruitment of a nominated individual within an organisation; they would have recourse to their general powers which can use in relation to any concern regarding the management of a registered service , for example to refuse 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 Health 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 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 regime they way they they they

David Mowat MP Parliamentary Under Secretary of State for Community Health and Care Department Richmond House of Health 79 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 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: Si, ~8 ,
2) /+ DAVID MOWAT From they

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 Care Quality Commission Citygate Gallowgate Newcastle upon Tyne NE1 4PA

Telephone: 03000 616161 Fax: 03000 616171

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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.

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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.

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