Kashfam Limited v Care Quality Commission

This is Kashfam Limited (‘the Appellant’) appeal against a decision of the Care Quality Commission (‘CQC’ and ‘Respondent’) to cancel its registration as a service provider in respect of the regulated activity of ‘personal care’, as carried on from Kashfam Limited, 26 West Street, Reigate, RH2 9BX.

The appeal was brought by Miss Irene Nyamurera, the nominated individual and director of Kashfam Limited. She is, in effect, also the Appellant. Miss Nyamurera appeals the Respondent’s decision of 6 February 2025 pursuant to section 32 of the Health and Social Care Act 2008 (‘the Act’) to the First-tier Tribunal.

The hearing took place on 13 November 2025 as a video hearing, which was agreed by the parties. The Tribunal, parties and all witnesses attended to provide oral evidence remotely.

The documents that we were referred to are in the electronic hearing bundle provided in advance of the hearing (82 digital pages). The Tribunal also received a skeleton argument from the Respondent, as well as extracts of relevant legislation. The Appellant did not provide a skeleton argument, but the points were clearly articulated in the appeal application and in the Appellant’s witness statement.

The Respondent also prepared a Scott Schedule, which was sent to the Tribunal during the hearing.

Miss Nyamurera attended, representing herself. She also provided oral evidence at the hearing. Miss Nyamurera called one other witness, Mr Adrian Kashiri, care coordinator and development manager at Kashfam Limited. The Respondent was represented by Miss Amy Taylor, counsel, instructed by CQC Legal Services. Mrs Lee-Ann Frampton-Anderson, senior lawyer at the CQC, attended, as did two members of the Legal Services team, who attended for professional development reasons, to observe the hearing. The Respondent called one witness, Mr Robert Mihaila, inspector.

Tribunal Judge Jenny Appleton attended to observe the hearing, for professional development.

The Tribunal clarified the approach to fact finding in the appeal and the timetable for the hearing, noting that Miss Nyamurera was appearing as an appellant in person. The Tribunal confirmed that the evidential burden rests with the Respondent, which must discharge it to the standard of ‘more likely than not’. The Tribunal also confirmed that its powers include a decision to confirm the cancellation, or to direct that it ceases to have affect, or to direct that it ceases to have effect and to impose discretionary conditions on registration. The Tribunal wanted to be clear on its powers to give Miss Nyamurera and the CQC an opportunity to consider discretionary conditions.

By way of additional evidence, to which there was no objection, an updated version of the statement of purpose was provided electronically to the Tribunal panel during the hearing.

The Tribunal noted that Miss Nyamurera had returned an attendee list, in which she had provided Mr Kashiri’s name as one of her witnesses. Mr Kashiri did not provide a witness statement, in spite of the best efforts of the Respondent to make clear to Miss Nyamurera that she ought to send the Respondent and the Tribunal a witness statement from Mr Kashiri and make an application in writing.

Miss Nyamurera had not appreciated that she needed to do this. After affording the Respondent some time to take instructions on the issue, on the basis that Miss Nyamurera wished to call Mr Kashiri as a witness, the Respondent confirmed that it was neutral on the issue. The Tribunal decided to permit Mr Kashiri to provide oral evidence, taking into account the overriding objective, which promotes flexibility in the Tribunal’s proceedings. Further, the Tribunal considered Rule 15 of the Tribunal Procedure Rules 2008, which gives the Tribunal the power to direct the form of evidence, including oral evidence (without a witness statement). Finally, the Tribunal decided that after hearing Mr Kashiri’s initial oral evidence, it was fair to give Miss Taylor time to consider it and prepare any questions for him, in order to ensure there was no real prejudice to the Respondent.

The Appellant is currently registered to provide the regulated activity of ‘personal care. It has been registered with the CQC since 24 Ferbuary 2023. It was confirmed during the course of the hearing that Kashfam Limited has never carried on the regulated activity of personal care.

On 17 January 2024, the Appellant confirmed that it had not provided the regulated activity. On 17 November 2024, the Appellant confirmed that it was now providing the regulated activity. The Respondent requested documentation for it to assess with a view the carrying out an inspection so that the service provider could receive a rating. The Appellant did not provide any further information and on 24 December 2024, the Respondent tissued a notice of proposal to cancel registration. No representations were received from the Appellant, so on 6 February 2025, the Respondent issued a decision to cancel registration. On 28 February 2025, the Appellant notified the Respondent of its intention to appeal. On 7 April 2025, the appeal was filed with the Tribunal.

Section 2 of theHealth and Social Care Act 2008 (‘the 2008 Act’) invests in the Respondent registration and review and investigation functions. By virtue of section 3(1) of the 2008 Act, the Respondent’s main objective is to protect and promote the health, safety and welfare of the people who use the health and social care services. Section 3(2) empowers the Respondent to fulfil its functions for the general purpose of improving health and social care services, the provision of health and social care services in a way that focuses on the needs and experiences of people who use those services and the efficient and effective use of resources in the provision of health and social care services.

Section 4 of the 2008 Act sets out the matters to which the Respondent must have regard, including the views expressed by or on behalf of the members of the public about the health and social care services, experiences of people who use the health and social care services and their families and friends and the need to protect and promote the rights of people who use health and social care services. Any action taken by the Respondent is proportionate to the risks against which it would afford safeguards and is targeted only where it is needed.

Under section 20 of the 2008 Act, the Secretary of State is empowered to make regulations in relation to the regulated activities by way of regulations. The Regulations made under this section are the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, SI 2014/2936 (‘the 2014 Regulations’) and The CQC (Registration) Regulations 2009 (‘the 2009 Regulations’).

Sections 26, 27 and 28 of the Act set out the procedural requirements in relation to notification of the Respondent’s decision.

Section 32 of the Act provides for a right of appeal to this Tribunal against a decision to cancel the registration of a service provider in relation to a regulated activity. The Tribunal may confirm the decision or direct that it is not to have effect. Under section 32(6), the Tribunal also has power to vary any discretionary condition for the time being in force in respect of the regulated activity to which the appeal relates. A ‘discretionary condition’ means any condition other than a registered manager condition required by section 13(1).

Regulation 3 of the 2009 Regulations requires the Respondent to “establish and maintain a register containing such information as appears to the Commission to be necessary to keep the public informed about the identity of registered persons and their carrying on of regulated activities”.

Regulation 6(1)(c) of the 2009 Regulations permits the Respondent to cancel a service provider’s registration if that service provider “is not, and has not been for a continuous period of 12 months ending with the date of the decision to cancel registration, carrying on that regulated activity”.

The regulated activity of ‘personal care’ is defined at Regulation 2 of the 2014 Regulations.

The Respondent bears the burden of persuading the Tribunal that, at the time of the hearing, it is proportionate to cancel the registration. The findings of fact are made on the basis of whether or not the Tribunal is satisfied as to the facts on the balance of probabilities.

The Tribunal is required to determine the matter afresh and make its own decision on the merits and evidence as of the date of hearing. Subject only to relevance and fairness, this can include new information that was not available or presented at the time when the decision under appeal was made. The fresh determination in this appeal includes consideration of the detailed documentary evidence provided by both parties, as well as the oral evidence, subject to questioning over the one-day hearing. We have considered all of the evidence and the written submissions before us, even if we do not mention every point of it in our decision. We refer only to the parts of the evidence which were of particular importance in reaching our findings.

The key question for the Tribunal is whether, as of today’s date, the decision to cancel the Appellant’s registration should be confirmed or directed to cease to have effect. We should ask ourselves – does the decision remain a reasonable, proportionate and justified one as of the date of the hearing?

We had comprehensive skeleton argument from the Respondent which we considered in advance of the hearing and as part of our deliberation, as well as the oral closing submissions made by both parties.

From the Appellant’s appeal application and witness statement, it was contended that:

The Respondent contends that the decision to cancel registration remains proportionate, in light of the following:

We considered all the evidence that was presented in the hearing bundle and provided in oral evidence during the hearing. We do not recite it here, bearing in mind that the hearing was recorded and refer to it only as required to articulate our reasons.

For the reasons set out below, the Tribunal has concluded that the decision to cancel the registration of Kashfam Limited pursuant to 6(1)(c) of the 2009 Regulations shall be confirmed.

Firstly, it was not disputed that as of the date of the hearing, the service provider had still not carried on the regulated activity of personal care. The Tribunal understood the challenges faced by the Appellant. Miss Nyamurera explained that the service provider had established contact with Surrey County Council, which made sense given that the service provider’s registered location is in Reigate. After a period of 14 months or so, it became apparent that Surrey County Council did not intend to run a tendering process. Miss Nyamurera explained that the service provider had secured a private service user, arranged with a family, to provide personal care to a relative with dementia. However, the family decided to engage the services of a service provider which had a CQC rating. This was the service user referred to in the email exchange of November 2024.

Following on from that setback, the service provider had engaged in a tendering process with Norfolk and Waveney Council. The Tribunal carefully considered the oral evidence from Miss Nyamurera and Mr Kashiri, as well as the letter dated 2 June 2025, which was from a procurement support officer from Arden & GEM (NHS Arden & Greater East Midlands Commissioning Support Unit, on behalf of the commissioners). The letter demonstrated to the Tribunal that the commissioner for Norfolk and Waveney Integrated Care Board had made the provisional decision to select Kashfam Limited to be a party to the agreement for the provision of continuing care services (Lot 3 – Domiciliary Care), subject to contract and the procedural steps and conditions set out in the letter. The letter went on to indicate that it does not constitute a legally binding acceptance of Kashfam Limited’s offer – the formal appointment of Kashfam Limited to the contract remains subject to the commissioner entering into a legally binding contract with Kashfam Limited. Further, the letter indicated that the service provider would be added to the preferred provider list and would be able to accept referrals from 1 June 2025 onwards. As of the date of the hearing, Miss Nyamurera confirmed that there had been no referrals made to the service provider.

During a break in the hearing, Mr Kashiri explained that he had called the commissioner’s referral team, and the indication was that they would receive a referral in the near future. Miss Nyamurera explained that they had anticipated receiving service users within six months of the date of the letter (taking that date to 2 November 2025). The Tribunal did not consider the letter to constitute a firm confirmation that the service provider would receive service users on an imminent basis. The letter is clear that does not constitute a guarantee that the service provider would receive service users within a set time period. The Tribunal would have found it helpful for the Appellant to have provided clear evidence to demonstrate that the carrying on of the regulated activity would happen imminently. The letter of 2 June 2025 did not provide that assurance to the Tribunal.

Mr Mihaila explained in evidence that at the present time, the service provider has a condition on its registration which means it is not able to provide personal care to service users with learning disabilities and/or Autism until such a time that it can demonstrate that an additional framework has been met. This accorded with Miss Nyamurera’s oral evidence, in which she indicated that at one point, in late 2024, the service provider had come close to providing the regulated activity to a service user with dementia. From Mr Mihaila’s perspective, the only thing that would change the CQC’s decision as to cancellation of registration would be if the service provider was able to demonstrate that it was carrying on the regulated activity, in a context where it has not done so for all of its registration. He also confirmed that any subsequent application for registration after cancellation on the basis of dormancy would not be negatively impacted by a cancellation under Regulation 6(1)(c) of the 2009 Regulations.

The Tribunal had no doubt that the service provider is operationally ready – that much was clear from Miss Nyamurera’s commitment and the confirmation from her that there were 100 to 150 prospective employees, on zero-hour contracts, ready to be deployed through another company, which operates as a recruitment agency. The Tribunal also understood the challenge for Miss Nyamurera, in that she wishes to carry on the regulated activity, not least as the service provider can then work towards obtaining a rating from the CQC through an inspection.

However, the Tribunal carefully considered the gateway of Regulation 6(1)(c), which provides a specific route of cancellation after 12 months or more of continuous dormancy of a service provider. The Tribunal took into account the fact that the service provider has not provided the regulated activity since registration – almost two years and nine months ago. The Tribunal did not consider the evidence presented by the Appellant, since the decision was made, provided a sufficient assurance that the regulated activity will be carried on at any point in the near future. The Tribunal carefully considered what had changed since the point at which the Respondent made its decision. The Appellant had managed to secure a place on the preferred provider list of Norfolk and Waveney Council, but there was no evidence before the Tribunal to demonstrate that the regulated activity will be carried on against a clear and imminent timetable. As part of its assessment of proportionality, the Tribunal considered whether there were any conditions it could formulate as an alternative to cancellation. The Tribunal was unable to formulate conditions which would be an appropriate response to the ongoing issue of a service provider which is not providing the regulated activity.

The Tribunal considered it relevant to proportionality the fact that the service provider can apply again for registration when it is in a position to carry on the regulated activity because of a change in its business model or viability.