Avista Limited v Care Quality Commission

Avista Limited (“the Appellant”) appeals against the Care Quality Commission’s (“the Respondent”) Notice of Decision, dated 04 December 2024, to cancel its registration as a service provider in respect of the regulated activity of Personal care (“the Regulated Activity”), as carried on from Vista Care, Suite 3, 119 The Grove, London. E15 1EN.

On 4 December 2024, the Respondent’s Notice of Decision was issued to cancel the Appellant’s registration as a service provider pursuant to Section 17(1)(e) of the Health and Social Care Act 2008 (“the 2008 Act) and Regulation 6(1)(c) of the Care Quality Commission (Registration) Regulations 2009 (“the 2009 Regulations”). This was served on the basis that the Appellant, for a continuous period of over 12 months, is not currently carrying on and has not been carrying on the regulated activity.

This was a hybrid hearing. Parties attended in person, but the CVP link was also live. No other persons attended via CVP.

The Appellant confirmed through Mr Patel that it had received the bundle of 132 pages. In addition, there were skeleton arguments prepared by the Appellant and the Respondent.

The hearing in person was attended by Ms MT Deignan, Counsel for the Care Quality Commission (CQC), Mr J Okunpolor Junior, Lawyer with conduct, CQC and Mr K Krukonis, Paralegal from CQC. The CQC had one witness in attendance, namely Mr M Haines, Operation Manager at CQC.

Mr F Patel purported to appear on behalf of the Appellant. However, his status was questioned as it was confirmed at the beginning of the hearing that he was no longer a director, but as part of the terms of sale, he continued to assist the Appellant company in its regulation matters. The new director and nominated individual (NI), Dr M Munshi was also present. Later, it was agreed by the Panel that Mr Patel could assist and to some degree, represent the Appellant through Dr Munshi.

The Appellant was registered with the Respondent on 7 December 2021.

The Appellant is registered for the regulated activity Personal care to be carried on from Vista Care, Suite 3, 119 The Grove, London. E15 1EN.

The Respondent is a statutory organisation set up under the Health and Social Care Act 2008 (Act).

The chronology of events was largely agreed.

On 7 December 2021, the Appellant registered with the Respondent to provide the regulated activity “Personal care”.

On 16 September 2024, the Appellant confirmed in correspondence with the Respondent that it had not carried on the regulated activity since 11 August 2022.

On 9 October 2024, the Respondent issued a Notice of Proposal to cancel the Appellant’s registration as a service provider. A 28-day period for representations against the notice was included giving the Appellant until 6 November 2024 to submit any representations.

No representations were received from the Appellant by the Respondent.

On 4 December 2024, a Notice of Decision was issued by the Respondent to the Appellant, adopting the proposal to cancel its registration as a service provider.

On 19 December 2024, the Appellant appealed the Notice of Decision to the First-tier Tribunal.

We have adopted the legal framework as set out in the Respondent’s submissions.

The Respondent was established on 1 April 2009 by the HSCA 2008. The Respondent is the independent regulator of health and social care services in England. The Respondent, in its role as the independent regulator, also protects the interests of vulnerable people, including those whose rights are restricted under the Mental Health Act 1983 (as amended by the 2007 Act).

The HSCA 2008 requires all providers of regulated activities in England to register with the Respondent, and to comply with the requirements and fundamental standards set out in regulations made under the HSCA 2008.

Section 3 of the HSCA 2008 sets out the Respondent’s main objective which is “to protect and promote the health, safety and welfare of people who use health and social care services”.

Section 4 of the HSCA 2008 lists the matters to which the Commission must have regard in performing its functions. At 4(1)(e) is listed ‘the need to ensure that action by the Commission in relation to health and social care services is proportionate to the risks against which it would afford safeguards and is targeted only where it is needed’.

Regulation 6(1)(c) of the 2009 Regulations permits the Respondent to cancel a service provider’s registration if the service provider has not carried on the regulated activity it is registered to provide for a continuous period of 12 months.

Section 17(1)(e) of the HSCA 2008, allows the Respondent to cancel a provider’s registration as a service provider “on any ground specified by regulations”. This creates a discretion for the Respondent, which is the subject of this appeal.

The Appellant is registered for the regulated activity of Personal care. The definition of this activity is to be found in Paragraph 1 of Schedule 2 to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the 2014 Regulations”):

Section 28(6) of the HSCA 2008 provides that a decision of the Respondent to adopt a proposal under section 26(2) or 26(4) takes effect (a) at the end of the period of 28 days referred to in section 32(2), or (b) if an appeal is brought, on the determination or abandonment of the appeal.

Section 32(3) of the HSCA 2008 provides that on an appeal against a decision, the First-tier Tribunal may confirm the decision or direct that it is not to have effect. Section 32(6) HSCA 2008 provides that the First tier Tribunal also has power to:

The Tribunal may confirm the decision taken by the Respondent or direct that the decision not have effect, or it may impose any condition on the registration that it sees fit.

The Respondent bears the burden of persuading the Tribunal that the decision to cancel the service or impose a condition is proportionate as at the time of the appeal hearing.

The Respondent must establish the facts upon which it relies to support satisfaction of the proportionality of the decision on the balance of probabilities.

The Panel began by consideration of an application to stay, or adjourn proceedings, made by the Appellant. This was found to be contained within the Appellant’s skeleton argument. Given that the document is dated 10 June 2025 and nine months was requested then, enquiries were made of the Appellant, and it was confirmed that 9 months from the date of the skeleton argument, rather than the hearing date, continued to be sought.

The reason provided by the Appellant for seeking an adjournment was that it had struggled with registering a new Registered Manager (RM). Indeed, it came to light during the application that the Appellant’s applicant for registration as RM, Ms R Sultana had withdrawn her application during the assessment interview on 23 September 2025.

Dr Munshi also explained that local authorities require providers such as Avista to tender using their Dynamic Purchasing Vehicle (DPV) and without an RM or a CQC rating, Avista has been unable to do so. However, the company had been able to find a private client and its services were due to start on Monday 29^th September 2025.

On behalf of the CQC, Ms Deignan opposed the application. She described how Ms Sultana’s application for RM was dated 16 May 2025, but was incomplete and had been followed by a number of requests by CQC for missing information and subsequent chase-up correspondence had also been issued. This meant that the lead up to the interview had taken longer than would normally be the case.

Ms Deignan referred the Panel to the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008. In particular, Rule 2, which deals with the Tribunal’s overriding objective. Rule 2(2) provides a list of matters to consider in dealing with a case fairly and justly. This includes (a), dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues and the anticipated costs and the resources of the parties. Ms Deignan reminded the Panel that there was no factual dispute, in that Avista had been dormant since 2022. She informed the panel that a fresh application for registration takes on average six months.

Ms Deignan also referred us to Rule 2(2)(e), that dealing with a case fairly and justly includes avoiding delay, so far as compatible with proper consideration of the issues. Her representations were that the Respondent had a strong case and that any delay should be avoided. In contrast, with the exception of one private client being found since the date of the appeal on 19 December 2024, the Appellant had provided nothing of material at the hearing or previously in the skeleton argument upon which the Tribunal should accede to the application. Neither was there any evidence as to exactly what was planned to happen during any period of adjournment.

Inevitably, there was some overlap between this application and the substantive appeal. Ms Deignan’s representations on the requested adjournment included the concern that in remaining registered, a false assurance would be created that the Appellant is providing compliant services, whereas the business had in fact been dormant for an ever-increasing period of time, beginning in 2022. It is not possible for the CQC to conduct an inspection of a service while it is still dormant. During this period, there had also been no assurance to the CQC that Avista had stayed up to date with best practice and it was of particular concern that the intention was to lean on the experience of care givers whose background was in childcare provision.

We decided to refuse the Appellant’s application to adjourn the appeal hearing. Our reasons were that, in considering Rule 2(2)(a), we found this not to be a complex case in which an adjournment was required in order for the Appellants to be ready for the final hearing.

We found that Avista was first made aware of the CQC concerns on 8 September 2024, if not sooner and therefore that the Appellants had already had sufficient time to rectify the issues of dormancy, beginning with establishing an RM. The only activity that had potentially been achieved was finding one private client, about which we had received no evidence.

We had not been presented with a clear picture from the Appellant of what is going to happen and within what timescales, such that it would be ready at the adjourned hearing. This was exacerbated by the fact that Miss Sultana’s application to become RM had not been pursued expeditiously, and we were further concerned that the Appellant’s representatives had not been aware of her decision to withdraw on the previous day.

In considering Rule 2(2)(e), we found that avoiding delay was compatible with the proper consideration of the issues because the Appellant had had sufficient time to prepare its case and consequently, it was fair and just to proceed.

It was apparent throughout this application that there was inevitably some overlap with the appeal itself on the issue of dormancy, designed by the Regulations to be considered as a ground for cancellation of registration.

After we informed parties of our decision, the Appellant was provided with a short break to consider if it wished to proceed with the appeal. The Tribunal suggested that an alternative might be to withdraw the appeal and proceed with a new registration for the newly staffed and populated business. The representatives returned and indicated they wished to proceed with the appeal and the question of Mr Patel representing the Appellant as referred to above, was dealt with at this point.

We took care to check on the outstanding issue or issues for the appeal. Although a Scott schedule had been prepared and was included in the bundle, it was agreed by all persons that the one remaining issue for consideration was that of proportionality, the factual basis of dormancy not being in dispute. The Appellants relied on Section 4(1)(e) of the HSCA 2008, to argue that the actions of the CQC in cancelling its registration were not proportionate. In fact, we have considered whether the Respondent acted proportionately in exercising its discretion under Section 17 of the 2008 Act.

We took into account all the evidence that was presented in the bundle and at the hearing. We heard evidence from a number of witnesses at the hearing. The following is a summary of the evidence that was presented at the hearing (or in a witness statement) and in no way is it meant to reflect everything that said or written.

Mr M Haines confirmed the content of his witness statement contained in the Tribunal bundle. His oral evidence was that as the Appellant remains dormant, this affirms the conclusion he reached that the CQC’s decision to cancel its registration remains appropriate and proportionate.

Mr Haines was asked about the CQC’s main objective to protect and promote the health, safety and welfare of people using health and social care services, where the service is dormant without current service users. In his evidence, he agreed that there is no risk to anyone at the time the service is dormant, but it is at the point that it might be operational again, when there will be an increased risk.

Mr Haines described that the risk would be that the Appellant has not kept up to date with best practice and training. This could result in care providers doing something that is no longer best practice, and which potentially carries significant risk, for example in the area of moving and handling persons. His evidence was that if the Service is properly registered, the public have an understanding that it would have had its registration process, documents and internal processes checked and monitored by the CQC. Where there is a longer time between this oversight by the CQC and the Service being active, those safeguards become less reliable and the message the public receive becomes out of date.

Dr A Munshi gave evidence on behalf of the Appellant and accepted that the contents of his statement were true. He confirmed that he is now the NI of the Appellant service and accepted that factually, the business is dormant and that there had been no provision of regulated activity since August 2022. However, in his evidence he maintained that arrangements for CQC and Ofsted-compliant training and good practice are ongoing. Although he accepted that the Service is effectively no further forward in reversing its dormancy, he asserted that there are now different officers and that the Appellant is now ‘a completely different organisation, still registered as Avista, but with a different staffing structure’. He accepted in evidence that there had been no assessment of the new structure’s ability to provide a CQC-compliant regulated activity.

Dr Munshi in evidence asserted that there would be a crossover of skills, training and policies from providing the childcare services of his other business to the adult services of Avista. He accepted that no details of the training had been provided to the Tribunal or CQC in readiness for the hearing and that the omission of training plans in the ‘Service Reinstatement Plan’ drafted in his written statement was an oversight. However, training was being provided to all staff from external, qualified and certified trainers.

Dr Munshi agreed in evidence that he could provide no reassurance that Avista would recommence its regulated activity imminently.

Mr F Patel agreed the contents of his statement to be accurate and that he ceased to be a director of Avista in May 2025. He acknowledged that his statement contained assurance that the Appellant was ‘targeting resumption of care delivery within the next four to six weeks’ but that in fact had not provided a service since August 2022.

Mr Patel agreed that potentially, any new clients would not be aware that Avista had not been delivering its regulated activity since 2022 but did not agree that this created any risk, relying on the online CQC reports that the public can view. He explained that without clients, care plans could not be prepared to be provided to the CQC.

Mr Patel expressed his trust in Dr Munshi’s ability, describing Avista as a natural progression for him. He wished to pursue the appeal because of the time a new registration process takes and reiterated that no clients will be taken while no RM is in place.

We took into account all the evidence that was included in the hearing bundle and presented at the hearing. This includes the Appellant’s and Respondent’s oral evidence.

We wish to place on record our thanks to all those present in the hearing that assisted us.

We reminded ourselves that the Tribunal is to consider the circumstances as at the date of its decision but found that there has been little change since the date of the Notice of Decision. We also reminded ourselves that the onus is on the Respondent to satisfy the Tribunal that the relevant standard, namely the balance of probabilities is met in considering whether cancellation of the Appellant’s registration is proportionate.

We considered all witnesses to be sincere and truthful in giving evidence, but our overriding view was that the Appellant simply did not agree with the regulatory framework that applied to those delivering a regulated activity. We were struck by Dr Munshi’s description of Avista in effect being a new company, under new management and intended to operate with a new structure. We found that much reliance was placed on Dr Munshi’s professional experience and abilities and the expectation that previous Ofsted compliance could be ported over to the CQC. That, coupled with Mr Patel’s admission that the registration process is slow and his confirmation that this is why the appeal is being pursued. While we appreciated Mr Patel’s honesty, the appeal process should not be used to subvert the usual registration requirements.

We reminded ourselves that the onus is on the CQC to show proportionality. To that effect, we considered the chronology made available to us, whereby it was clear that the issue of dormancy had been brought to the attention of the Appellants in September 2024 and that promises had been made by the Appellants that care delivery would be resumed. Ultimately though, it was accepted by Dr Munshi that this would not be imminent.

Although there appeared to have been some approaches made by the Appellants to letting agents, as evidenced by letters in response contained in the bundle, these were not referred to by the Appellants and neither were they put into context or supported by any other documentary evidence that would suggest that progress is being made in delivering the regulated activity. It is unfortunate that the Company has been unable to make progress in being operational, but it seemed to us that Mr Patel, in particular, believed that the cancellation was linked to the lack of a registered manager. In fact, we find that to be a peripheral matter and not the subject of an appealable decision by the CQC.

We are mindful that dormancy for 12 months is a circumstance that has been included within the Regulations as a cause for the CQC to exercise its discretion and cancel the registration. We are unable to think of a clearer example of a dormant service whose registration might be cancelled.

In this case, there is no new statement of purpose for the new enterprise, which was said by Dr Munshi in his witness statement, dated 10 May 2025 to be in final draft form. In fact, we have seen no training plans, nor the policies, procedures and compliance monitoring tools said in the same statement to have been refreshed and aligned with the latest CQC guidance. There is no evidence before us to show that the business will be operating again imminently, as accepted by Dr Munshi. Our view was that on these facts, the Appellants were unable to mount a full argument that the CQC was not acting proportionately.

The Appellants rely on the absence of risk to persons while the business is dormant, but we take the view that it cannot be assumed that the Ofsted regulation process will naturally translate into those of the CQC. Similarly, we do agree with those issues raised in the Respondent’s skeleton argument, that because a dormant service cannot be inspected, the CQC cannot be satisfied that it is meeting the requirements of the relevant Regulations. It follows that in the absence of an inspection and compliance with the regulations, a false assurance may indeed be given to the public that the service is up to date with training and best practice.

We acknowledge that the Appellant will be disappointed with our decision. However, we reiterate that cancellation on the grounds of dormancy is simply that and not a comment on the suitability of persons involved in the service.

We concluded that, having considered all the circumstances of the case and the evidence before us, it was reasonable, necessary and proportionate for the Appellant’s registration to be cancelled.

The appeal is dismissed.

The decision of the Respondent dated 4 December 2024, to cancel the registration of Avista Ltd as a service provider in respect of the regulated activity of Personal care (“the Regulated Activity”), as carried on from Vista Care, Suite 3, 119 The Grove, London. E15 1EN is confirmed.