White and Sterling Residential Care Limited v Care Quality Commission

First Tier Tribunal Care Standards

The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care) Rules 2008

2025-01638.EA- MOU

Neutral Citation Number: [2025] UKFTT 01568 (HESC)

White and Sterling Residential Care Limited

Appellant

-v-

Care Quality Commission

Respondent

BEFORE

Tribunal Judge Goodrich

Specialist Member Styles

Specialist Member Knapp

Hearing by video-link on 26 November 2025

REASONS ON APPEAL AGAINST CONDITIONS

Representation

Appellant: Mr Nicholas Leviseur, counsel

Respondent: Dr Mary-Teresa Deignan, counsel

Preamble:

On 1 December 2025 we delivered a short form decision dismissing the appeal and confirming the Respondent’s decision dated 4 September 2025. We now provide our reasons.

1. By notice dated 23 September 2025 the Appellant appeals against the Respondent’s decision dated 4 September 2025 to impose additional conditions on the Appellant’s registration as a service provider in respect of the regulated activity: Accommodation for persons who require nursing or personal care, at the location of Sterling House 150-152 Thorpe Road, Norwich (hereafter Sterling House or the Home).

2. The right of appeal lies under section 32 of the Health and Social Care Act 2008 (the Act).

The Parties

3. The Appellant company is the registered provider of the regulated activities provided at Sterling House which was first registered with the Respondent in October 2022. Sterling House had previously been a care home. It was renovated by the Appellant into 17 self-contained flats, each comprising a bedroom, lounge/kitchen area and bathroom. The Appellant is registered to provide the regulated activities to up to 17 service users. The service user bands for the service include Younger Adults, Older People and people living with Dementia.

4. The Respondent is the statutory body responsible for the registration of those who seek to provide regulated activities i.e. activities connected with the provision of health or social care. The main statutory objective of the Commission in performing its review and investigative functions is to protect and promote the health, safety and welfare of people who use health and social care services.

Restricted Reporting Order

5. The Tribunal makes a restricted reporting order under Rule 14(1) (a) and (b) of the 2008 Rules, prohibiting the disclosure or publication of any documents or matter likely to lead members of the public to identity any resident or family member.

The Background and Chronology

6. This appears to be as follows:

a. 22 October 2022: the Appellant was registered to provide the Regulated Activity to up to 17 service users.

b. 9 May 2023 inspection: the service was rated ‘Inadequate’ in all domains with breaches of Regulations 9, 10, 11, 12, 17, 19 identified. Urgent conditions were imposed including a condition requiring CQC approval regarding new admissions and re-admissions.

c. 24 September 2024: on inspection breach of Regulation 17 (Good Governance) was identified. It was considered that there had been improvement in some areas. The conditions were removed.

d. 28 August 2025: CQC Mrs Blyth, a CQC inspector, accompanied by another inspector, Ms Foster, made an unannounced inspection as the result of which the Respondent issued an urgent Letter of Intent. The Appellant responded on 29 August 2025 and provided an Action Plan.

e. Further inspection followed on 1 September 2025 and an out of hours inspection on 2 September 2025.

f. 4 September 2025: the Notice of Decision (NoD) was issued imposing urgent conditions under section 31.

g. 23 September 2025: The appeal was lodged.

h. 1 October 2025: a follow up inspection was undertaken

i. There has been no Registered Manager in place since September 2024. The application of the current manager, Irina Bodor, to become the Registered Manager was refused by the Respondent on 28 October 2025.

The Decision under Appeal

7. The conditions that the Respondent imposed by its NoD dated 4 September 2025 were that:

1) The registered provider must not admit any service user to Sterling House, 150-152 Thorpe Road, Norwich, NR1 1GT Norfolk without the prior written agreement of the Care Quality Commission. This includes service users who require respite care, as well as re-admission of any service user. The term “admit” includes re-admission of any service user.

2) The registered provider must have conducted a full review of the premises in respect of but not limited to exposed pipework, uncovered radiators, routes of egress, fire safety measures, gas safety, electrical safety and provide evidence by 11 September 2025 all remedial actions have been undertaken and where appropriate provide certification from appropriate organisations that work has been undertaken.

3) The registered provider must ensure that items that can pose a risk to service users have been identified and secured and that there are regular checks to ensure that items have been safely stored. The registered provider should provide evidence of the check having been carried out by 11 September 2025 and thereafter provide evidence on the first Monday of the month an overview of the findings of ongoing checks and actions taken to address them.

8. The remainder of the NoD is a matter of record and we need not repeat its contents. We note that a recurrent theme was that assurances had been made regarding some matters but, when the matters were checked, it was apparent that some of the risks had not been fully addressed.

The Appeal

9. The Appellant seeks an order setting aside the urgent conditions imposed by CQC on 4 September 2025 (including the admissions ban), or in the alternative varying them so they are no longer in force. The Appellant contends that the risks cited have been fully addressed, as shown by evidence, and are now appropriately controlled through “embedded governance measures.”

The Legal Framework

10. The relevant parts of the Act are as follows:

The Commission's objectives

Section 3 of the Act provides:

(1) The main objective of the Commission in performing its functions is to protect and promote the health, safety and welfare of people who use health and social care services.

(2) The Commission is to perform its functions for the general purpose of encouraging—

(a) the improvement of health and social care services,

(b) 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

(c) the efficient and effective use of resources in the provision of health and social care services.

Matters to which the Commission must have regard

Section 4 of the Act describe the matters to which the Commission must have regard in performing its functions. These include:

(a) views expressed by or on behalf of members of the public about health and social care services,

(c) views expressed by Local Healthwatch organisations or Local Healthwatch contractors about the provision of health and social care services,

(d) The need to protect and promote the rights of people who use health and social care services (including, in particular, the rights of children, of persons detained under the Mental Health Act 1983, of persons who are deprived of their liberty in accordance with the Mental Capacity Act 2005 (c. 9), and of other vulnerable adults),

(e) 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.

Urgent procedure for suspension, variation etc.

Section 31

(1) If the Commission has reasonable cause to believe that unless it acts under this section any person will or may be exposed to the risk of harm, the Commission may, by giving notice in writing under this section to a person registered as a service provider or manager in respect of a regulated activity, provide for any decision of the Commission that is mentioned in subsection (2) to take effect from the time when the notice is given.

(2) Those decisions are—

(a) a decision under section 12(5) or 15(5) to vary or remove a condition for the time being in force in relation to the registration or to impose an additional condition;….

Rights of appeal

Section 32 provides (in so far as relevant)

(1) An appeal against

(a) any decision of the Commission under this Chapter, other than a decision to give a warning notice under section 29 [or 29A],….

…..lies to the First-tier Tribunal].

(5) On an appeal against a decision to which a notice under section 31 relates, the First-tier Tribunal may confirm the decision or direct that it is to cease to have effect.

(6) On an appeal against a decision or order, the First-tier Tribunal also has power—

(a) to vary any discretionary condition for the time being in force in respect of the regulated activity to which the appeal relates,

(b) to direct that any such discretionary condition is to cease to have effect,

(c) to direct that any such discretionary condition as the First-tier Tribunal thinks fit shall have effect in respect of the regulated activity….

The Hearing

11. We have before us the main indexed electronic bundle consisting of 1170 pages pdf. We need not describe its contents in detail. We were assisted by skeleton arguments from each party. We were provided with the parties’ respective positions as set out in a Scott Schedule.

12. There were no significant difficulties with the video connection.

13. At the start of the hearing the judge explained the legal framework to the parties and, in particular, that the Tribunal is not concerned with fact-finding, but with the assessment of risk in the context of the nature, substance and cogency of the concerns raised and, if the threshold test is met, the assessment of necessity, justification and proportionality.

14. The Tribunal is required to determine the matter de novo and to make its own decision on the merits based on the evidence as at the date of the hearing. Subject to relevance and fairness, this can include new information or material that was not available or presented when the decision under appeal was made.

15. The burden of satisfying us that the test under section 31 (1) is met lies on the Respondent. The standard of proof ‘reasonable cause to believe’ falls somewhere between the balance of probability test and ‘reasonable cause to suspect’. The belief is to be judged by whether a reasonable person, assumed to know the law and possessed of the information, would believe that a service user “will or may be exposed to a risk of harm”.

16. Even if the threshold test is satisfied by the Respondent, that is not an end of the matter because the panel must decide whether the decision is today necessary, justified, and proportionate. The Respondent bears the burden in this regard.

The Witnesses called

17. We heard evidence in the following order. All witnesses adopted their statements as their evidence in chief and were asked questions by the other party:

For the Respondent

Mrs Leighann Blyth

Mrs Ruth Butterfield

For the Appellant

Ms Kelly Devenish

We will not set out the oral evidence of each witness but will refer to some aspects when giving our reasons.

The Parties’ Closing Submissions

18. Dr Deignan submitted that although there had been some improvements this had taken time. A month after the first inspection four rooms still had accessible toiletries and there remained issues with 2 radiators not being covered. In the course of addressing the improvement work a new risk arose because power and other tools were left unattended and accessible to residents. Ms Devenish has been working on the changes but it is the owner, Mr Smith, who is in control, as shown by her evidence regarding the decision made during the summer to reduce the number of night staff. As to the suggestion that there are now systems in place, it is not Ms Devenish who will be driving the improvements. It will be the consultancy service from whom no evidence had been provided. The CQC’s position is that the assessment of risk is a dynamic process and no sufficient system has yet been embedded to enable any level of confidence that the additional conditions are no longer necessary, justified and proportionate.

19. In summary, Mr Leviseur submitted that the CQC’s position was not within the scope of the decision under appeal. The analysis of the documentation showed that a large number of the safety issues had begun to be dealt with before the NoD was issued, and it appears to be that case that there was compliance by 1 October 2025. The issue about the radiator covers and the accessible toiletries would not, by themselves, justify the decision made. The Respondent has not carried out a further inspection since. It appears to be the case that each of the matters set out in 1-7 of the NoD have been complied with. Ms Devenish’s evidence was that the Fire Service has approved a “stay in place” plan for evacuation in the event of fire. The appeal had turned into an examination of Ms Devenish's abilities. She is the person responsible for the changes made. Physical changes have taken place. There is no reason to suggest that changes have not been made or that Ms Devenish is not telling the truth. All issues have been dealt with and there is “no reasonable cause to believe that there is likely to be harm in respect of the identified physical deficiencies.” There is no reason to disbelieve what Ms Devenish says. Steps are in hand to recruit the additional staff. There is no question of likely repetition and all issues identified have been dealt with. The involvement of consultants is indicative of the likelihood of future compliance. Those who have guided the process of change are highly unlikely to believe that they can revert to old ways. In terms of the risk assessment everything tends to suggest that that physical improvements have taken place, or that a protocol regime had been put in place. The Respondent has not discharged the burden of proof regarding the applicable test. The conditions imposed are not necessary. The concerns have been properly met. The appeal should be allowed in its entirety.

Our Consideration

20. We will not refer to every aspect of the evidence before us, the skeleton arguments or oral submissions. We have taken all the evidence and submissions before us into account even if we do not specifically refer to every aspect placed before us.

21. We remind ourselves that we are not today involved in finding facts. Our first task is essentially that of a risk assessment as at today’s date in the light of all the evidence before us.

22. We are an independent panel making a risk assessment as at today’s date against the threshold set out in section 31 (1). We remind ourselves that, contrary to the Appellant’s submissions, we are not concerned with whether harm is “likely” but rather whether there “will or may be” a risk of harm to service users.

23. Whilst it appears that measures have been taken to address the many issues of concern identified at the Inspection it appears that these improvement measures were driven by the outcome of the inspection. Many of these measures were very basic steps to safeguard the health and safety of residents/service users, most of whom are living with dementia. We have no real confidence that such measures would have been attended to but for the fact of the inspections by the Respondent undertaken in August and September 2025. We note with concern that, as of 1 October 2025, there were still two uncovered radiators and that items that posed risk to those living with dementia were still accessible and not locked away.

24. It is submitted that the Respondent relies on matters outside of the scope of the appeal against the decision made. However, in our view, the regulatory history and the overall context is always relevant when considering the need for, and the proportionality of, any enforcement action taken. This applies to any enforcement action taken on an urgent basis whilst consideration of any substantive decision is underway under the statutory process.

25. We were informed at the start of the hearing that Norwich City Council (NCC) intends to terminate its block framework agreement but that “spot funding” will be in place. This will provide individual residents with the ability to stay at the Home if that is their choice. As matters currently stand there are 14 residents/service users, 12 of which are funded by the Local Authority and 2 of which are privately funded. The apparent view of NCC, a local contractor, is relevant – see section 4 (c).

26. The Appellant’s essential case is that all outstanding issues identified in the NoD as the justification for the imposition of urgent conditions have been addressed. We are not involved in findings facts in this appeal. The assertion that the health and safety issues identified have since been adequately addressed and that governance is embedded will be considered at any substantive hearing that may take place. The Appellant complains that no further inspection has been carried out but we remind ourselves that the Respondent’s role is not to provide an audit service. Ms Blyth and Mrs Butterfield made clear that their concern was regarding leadership and management oversight, and ensuring that the apparent improvements regarding health and safety are maintained. We are informed that an external care consultancy and training service, SRG, has been commissioned to provide further support, advice, and recommendations to monitor safety checks. Whilst the Appellant has engaged consultants, we have not seen direct evidence from them regarding their involvement to date.

27. In our view it appears from the evidence before us that the leadership and management of the service provided by the Appellant is in a state of flux. Ms Devenish told us that she is no longer a Director. She told us that she had applied to the CQC to relinquish her role as Nominated Individual (NI) and would be stepping down as NI as soon as her application is granted by the CQC. This reveals a misunderstanding because the decision as to who fulfils the role of NI is the responsibility of the Appellant. The important matter is that Ms Devenish told us that a package has been purchased from SRG regarding a new nominated individual that provides for one visit a month and five hours consultancy per month. It appeared to us that, apart from undertaking the role of the NI, Ms Devenish has been heavily involved in standing in for the manager, Ms Bodor, when she has been absent. The application of Ms Bodor to be the RM had been refused by the Respondent on 28 October 2025. We were told that a new interim RM would be starting within days of the hearing.

28. The new management and leadership team will doubtless seek to address the overarching concerns of the CQC. That is not our concern when considering the appeal before us against the imposition of urgent conditions under section 31 of the Act. What is relevant to our risk assessment as at the date of our decision is that the leadership and management of the service cannot realistically be described as established or stable. In our view the essential plea made in the appeal application that the risks are appropriately controlled through “embedded governance measures” suggests a lack of insight. In our view the matters discovered on inspection, and since on 1 October 2025, were significant and posed risk to service users. The “embedding” of governance oversight regarding the monitoring and ongoing assessment of risk, in our experience, takes a considerable period of time.

29. In our view the conditions imposed regarding the provision of a monthly overview addressing risk assessment can fairly be described as “light touch”. We say this because all that is essentially required is that the Appellant does that which it is obliged to do so in any event in order to meet the fundamental standards set out in the regulations. Providers should always have risk assessments in place and should be constantly monitoring and reviewing the issue of risk. There should be no real difficulty in sending a monthly overview of the findings of ongoing checks and actions taken to address them to the Respondent. This is not an onerous condition. The point of the condition is to require the Appellant to provide the overview in writing so that the Respondent can be assured that the leadership and management at the service is meeting its obligation to focus on, and actively consider, the issue of risk to vulnerable service users. In our view it is startling that no overview was provided in November.

30. Mr Leviseur suggested that the condition was met by the provision of the very many documents in the appeal. We reject that. The point of the condition was that an overview should be provided so that the Respondent can immediately see that relevant risk assessments are being undertaken by leadership and management and that the issue of risk is under active and regular review. It is of concern to us that a provider who did not comply in November seeks the removal of this condition, along with the others.

31. The restriction regarding the admission of a new service user or the re-admission of any (existing/former) service user after discharge from Hospital is, on the face of it, a more significant restriction. The Appellant submits that there are few homes in Norfolk that meet the need for accommodation for family units. It would appear that there are some other homes that do so for some residents, but not to the same extent as the Appellant. All of the units provided by the Appellant enable joint living which is an obvious benefit for couples who want to be together. The Appellant’s concern is that any delay whilst CQC approval is sought may result in the loss of potential placements, and to the detriment of those who want to be able to live with their partner/family member.

32. In our view the impact of the condition has to be considered in proper context. Mrs Blyth’s evidence was that when this condition was previously in place application(s) to the Respondent had been made and granted. Mrs Blyth told us that an application regarding re-admission would usually take 1-2 days and that a new admission would take 2-5 days, dependent on the quality of the information provided regarding the needs assessment. In answer to Mr Leviseur, she clarified that so far as matters arising from NCC’s decision (to terminate block funding) any resident remaining in the home would not constitute a re-admission. Whilst we note that admission/re-admission from Hospital can very often be time critical, there is no evidence before us of any resident contract having been lost, or re-admission not taking place, because of the previous or current condition that admissions/re-admissions had/have to be approved by the Respondent. It appears to us that the time for due consideration by the CQC can be considerably shortened if the assessment information presented by the Appellant is thorough and complete.

33. The point of the particular condition imposed was/is to ensure independent overview by the regulator regarding the needs of vulnerable service users. It is a safeguarding measure. On the evidence before us, the provider and the RM made a decision to reduce the number of members of staff on duty at night from three to two. On the evidence before us it appears that this was contrary to the views of Ms Devenish, who was then the NI. In our view regulatory oversight regarding the ability of the provider to meet the particular needs of new or returning residents is necessary so as to seek to protect the health and well-being of service users. In our view the evidence supports that a condition regarding CQC oversight and approval regarding admission/re-admission is plainly necessary and justified in pursuit of the legitimate public interest aim.

34. It is apparent to us that there have been significant changes regarding leadership and management roles at the Home and that further change is imminent. A new leadership and management model is proposed but this is, as yet, untried and untested. Experience in this specialist field informs us that changes in leadership and management may well lead to some interim instability. In our view this is decidedly not the point at which the regulatory oversight involved in the conditions under appeal should be either removed, or relaxed by way of variation. In our view the regulatory oversight involved in the additional conditions is plainly necessary and is justified in pursuit of a legitimate public interest aim.

Proportionality

35. The real issue is proportionality. The exercise of proportionality requires us to balance the risk of harm to residents/service users at the location against the interests of the Appellant company and others affected. We attach great weight to the protection of residents/service users from exposure to the risk of harm.

36. We have carefully considered all the matters raised by the Appellant. We balanced the Appellant’s interests, and the interests of all others affected, against the risk of harm to residents. In our view the Appellant’s interests, and those of others, are outweighed by the need to protect service users from the risk of harm. We consider that the decision to impose the additional conditions on the Appellant’s registration is wholly proportionate to the risks against which protection to seek to mitigate or reduce the risk of harm should be afforded.

DECISION