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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I am a director of a Company applying for registration under

Resolved Question:

I am a director of a Company applying for registration under the Health and Social Care Act 2008 as a service provider with the Care Quality Commission. I have past criminal convictions that are 'spent' under the Rehabilitation of Offenders Act 1974. The convictions do no relate to working in social care and I am not barred from working with vulnerable adults or children. Will the CQC be able to refuse the Company registration because those convictions? My company has four directors which I am one.
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Alex Watts : Hello my name is ***** ***** I will help with this.
Alex Watts : What was the conviction or convictions please?
Customer:

Conspiracy to defraud HM Revenue and Customs. conv

Customer:

Conviction was in February 2005 with four year custodial sentence. The conviction was 'spent' in February 2012.

Customer:

I have received a request to rate your answer but at present no answer has been received apart from the request for details of the conviction.

Customer:

I have now had 8 requests to rate your answer but as I have not received an answer this is rather difficult. I am not sure why your system thinks that an answer has been given.

Alex Watts : Yes thank you. I need to know what section and what act please
Customer:

I was charged with a common law offence so that no section of the Taxes Acts were cited in the indictment. I hope this helps.

Alex Watts : Thank you. In that case it will not show.
Alex Watts : The CrB now DBS check filters out offences.
Alex Watts : Neither of these show on the list of offences never filtered.
Alex Watts : Therefore it won't show on a DBS check so you don't need to worry.
Alex Watts : It won't show on the check so they won't know.
Alex Watts : The list of offences is at
Alex Watts : https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/262620/List_of_offences_that_will_not_be_filtered_DBS_v2.1.xlsx
Alex Watts : Can I clarify anything for you about this today please?
Customer:

The convictions will show up on an enhanced DBS check. My question is ' can the CQC refuse to register my Company as a service provider if the convictions show up on the enhanced DBS check and I am deemed to fail a fit and proper person test?

Alex Watts :

They won't show on an enhanced.

Alex Watts :

The same rules apply for filtering to basic to enhanced

Alex Watts :

The only difference together with any information held locally by police forces that it is reasonably considered might be relevant to the post applied for

Alex Watts :

Does this clarify?

Alex Watts :

.

Customer:

The convictions have already shown up on an enhanced DBs check as they always will even though they are spent. My question is' Will CQC refuse to register my company as a service provider once they are aware of the convictions?

Alex Watts :

Can they - yes.

Alex Watts :

But they must take each conviction into account and weight whether or not it would affect the safety of vulnerable people.

Alex Watts :

If they refuse you can always appeal and Judicially Review the decision where a High Court Judge examines their decision to see whether it is reasonable. A Judge can agree with the decision or remit it back for further consideration

Alex Watts :

But the CQC has to decide whether the conviction would have any effect on the vulnberable.

Alex Watts :

Does that clarify?

Customer:

It does in part. What law or regulations can the CQC use to refuse the application? S17 Health and Social Care Act 2008 does not help them or cover my situation. The person R in this situation is a limited company and I am not the Nominated Individual. The offences of which I was convicted have nothing to do with a regulated activity as defined with the Health and Social Care Act 2008. The requirements of the Care Quality Commission (Registration) Regulations 2009 have been fully complied with. I am not on the ISA Children’s Barred List or the ISA Vulnerable Adults Barred List.

Alex Watts :

They have a policy which states:

Alex Watts :

Our decisions will be made on the basis of an assessment of
any risk to children or adults, rather than the simple fact that a
conviction or other information is disclosed. However, where
there is significant doubt, the decision will always favour the
welfare of the children or adults using the service.

Alex Watts :

Therefore if you are a Director and not involved in the actual care you should be approved. They do not specify what criteria they use

Alex Watts :

If they go against you, you can Judicially review the decision

Alex Watts :

It needs to be a High Court Judge and then will see whether the decision made is legal and reasonable.

Alex Watts :

A Judge can agree with the decision or remit it back for further consideration

Alex Watts :

Does that help?

Customer:

It does in part. Where can the detail of the policy you refer to be found? Certainly it does not readily appear on the CQC website.

Alex Watts :

http://www.cqc.org.uk/sites/default/files/documents/20140723_100646_v6_00_disclosure_and_barring_service_checks_guidance_for_publication.pdf

Alex Watts :

Short cut:

Alex Watts :

http://www.cqc.org.uk/file/5350

Alex Watts :

Does that clarify matters/

Customer:

That does help a good deal. However it does seem that the CQC are operating their own subjective policy that does not necessarily follow the law as laid out in the Health & Socal Care Act 2008 with the subsequent revisions and updates. The new proposed regulations that will require a ft and proper person test do not come into effect until April 2015. I am not a registered manager, nominated individual and not involved in the delivery of care. My role is to ensure delivery of a business plan and to oversee the administration and finance and to operate the company policy in respect of ensuring that the buildings are regulation compliant. I assume that if the CQC propose to refuse the application then they will need to give full reasons for their decision.Their published guidelines state that they only ever refuse registration after a process of discussion and guidance.

Customer:

Thank you for your help.

Alex Watts :

I agree. This is why you may need to Judicially Review the matter if they refuse.

Alex Watts :

Can I clarify anything else for you?

Customer:

Thank you for your help. We will have to await the next move from CQC.

Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
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