April 4, 2023

What are the potential consequences for care providers for non-compliance with the Capacity Tracker?

Acquiring a care home

The Department of Health and Social Care (DHSC) published information about mandatory data to be provided via the Capacity Tracker in July 2022. So what are the potential consequences for care providers who do not comply?

Data is to be provided monthly with the aim of supporting high-quality commissioning, system assurance and the management of risks at local, regional and national level. The requirement to provide data came into force on 31 July 2022 and applies to all adult social care providers regulated by the Care Quality Commission (CQC).

The DHSC has now set out its enforcement provisions under the Adult Social Care Information (Enforcement) Regulations 2022, which came into effect on 1 December 2022. This allows the Secretary of State to impose financial penalties. A lead-in time has been allowed, and the DHSC do not anticipate issuing any notices prior to April 2023. Providers should ensure they are complying before the grace period ends.

What are the financial penalties?

It is confirmed that the level of fine will be the same as a provider’s CQC registration fee. This will range from £313 to £15,710 depending on the size of the service.

It is intended that financial penalties will be the last resort and only imposed when a provider continues to be, or is persistently, in breach of their data obligations after it has been provided with guidance and support from the NHS Business Services Authority.  Providers are more likely to be fined if they do not share data at all, or if they share false or misleading data.

What is the enforcement process?

Action can be taken against any private provider of adult social care, regulated by CQC, which, without reasonable excuse, fails to submit the data required via the Capacity Tracker. The enforcement process will take four steps:

  • Step one

    Contact with the provider to understand the issue surrounding the lack of compliance. Support and guidance will be offered in advance of the next data submission. Providers can use this as an opportunity to flag extenuating circumstances or reasonable excuses, should they be applicable.

  • Step two

    Providers are given a second opportunity to take support and guidance and flag new or continuing extenuating circumstances.

  • Step three

    If a provider continues not to comply with its data obligations, then a Notice of Intent will be issued by the DHSC. This will notify a provider that they have not complied with their statutory duty and warns that a financial penalty may be imposed. A provider will be entitled to make representations within 14 days outlining why they have been unable to comply. This information will be used to make a final decision.

  • Step four

    If representations are made, they will be considered and a decision on whether to proceed to a financial penalty will be made within 28 days. Where a provider has not made adequate attempts to engage with support or continued not to comply with their obligations without reasonable excuse, a final notice imposing a financial penalty may be issued.

What can you do if you are penalised?

There is no exhaustive list of reasonable excuses, but DHSC have included some examples of what would be consider a reasonable excuse for context. This is an emergency situation e.g. a new COVID-19 outbreak or a computer failure such a cyber attack lasting a number of months. It is clear only serious and substantial issues will be considered a reasonable excuse.

In the event of a financial penalty, providers can request a review of the decision within 7 days. There is also further opportunity to appeal to the First Tier Tribunal within 28 days of the decision if providers continue to disagree.

It is important to note that any penalty unpaid for 40 days will be passed to a third party for debt recovery. Unpaid debts are likely to have an impact of a businesses’ financial viability which may in turn impact its credit rating and financial position as required by CQC.

As a provider, you should ensure that you are familiar with the Capacity Tracker and your obligations. It is important that obligations are complied with from an early stage to avoid any financial ramifications.

Our experts

Get in touch

Seek advice from our experts on draft representations, requesting reviews of financial penalties or appealing to the First Tier Tribunal.

Listen to our podcast

Listen to Georgina and Fran explain more about the Capacity Tracker.

If you’d prefer to listen to our team explain what the Capacity Tracker is, how it’s implemented and what the implications are for social care providers who don’t comply, make sure to check out our recent Legal Thinking podcast episode and subscribe for more legal insights from our firm.

Listen to Legal Thinking
Opinions and insights

Read more from around RWK Goodman

View more articles related to Dispute Resolution, Health and Social Care and Dispute Resolution