12/12/2019

For the most part, agencies supplying health and social care workers are not required to be registered with the Care Quality Commission under the Health and Social Care Act 2008. However, in this update we look at two recent developments which reinforce the need for agencies to give careful consideration to whether their businesses may need to register with the CQC.

Healthcare Agencies - the Medacy case

A recent tax case before the First-tier Tribunal highlights the issues which businesses that supply healthcare workers need to consider in deciding whether they require registration with the CQC.

The Medacy case was an appeal to the Tribunal against HMRC’s assessments of VAT payable by the agency.

There are two strands to Medacy’s business: the first concerns the supply of locum pharmacists, whereas under the second strand Medacy provides clinical pharmacy services to GP practices. It was this second strand which was at issue in the appeal. The issue for the Tribunal was whether this part of the business constituted a ‘supply of staff’ which is standard rated for VAT, or a ‘supply of medical care services’ which are exempt from VAT.

In determining whether Medacy’s business constituted a ‘supply of staff’ or a ‘supply of services’ the Tribunal took into account that Medacy provided:

  • on-boarding including: explaining to the pharmacist the services to be provided; a familiarisation process with the GP practices; and detailing the training the pharmacists are required to undertake;
  • detailed protocols which set out how the pharmacists should carry out certain core services;
  • regular review meetings with both the GP practices and with the pharmacists;
  • ongoing chat group, website and telephone support to assist the pharmacists in providing the services; and
  • a suggested daily schedule to the pharmacists giving guidelines as to how they should organise their day to make sure all of the relevant services are provided.

Ultimately, the Tribunal held that this part of Medacity’s business constituted a ‘supply of services’ and was exempt from VAT. However, it is important to note that the sorts of issues the Tribunal relied on to identify the level of control Medacity had over the pharmacists supplied and the services they provided, mirror the issues which CQC take into account in determining whether a provider is deemed to be “carrying on” a ‘regulated activity’ requiring registration under the Health and Social Care Act.

It should be noted that, because the type of services supplied by Medacity was clinical pharmacy, this is not one of the ‘regulated activities’ requiring registration with CQC. However, for agencies which are deemed, for tax purposes, to be supplying ‘medical care’ services delivered by other types of healthcare professionals, registration with CQC may be required.

CQC’s regulated activity of ‘Treatment of disease, disorder or injury’ relates to the provision of treatment for a disease, disorder or injury by or under the supervision of a health care professional, or a team which includes a health care professional. For these purposes, a healthcare professional is defined as being any one of the following:

  • a medical practitioner,
  • a dental practitioner,
  • a dental hygienist,
  • a dental therapist,
  • a dental nurse,
  • a dental technician,
  • an orthodontic therapist,
  • a nurse,
  • a midwife,
  • a biomedical scientist,
  • a clinical scientist,
  • an operating department practitioner,
  • a paramedic, or
  • a radiographer;

Agencies supplying free-standing services delivered by any of these types of healthcare professionals should give careful consideration to the need to be registered with CQC if they have not already registered.

Social Care - personal assistants at home

It is well established that care workers providing personal care but who are directly employed or contracted by, and work wholly under the direction and control, of a service user or ‘related third party’ (such as independent service user trusts) are not required to be registered with CQC under the Health and Social Care Act.

However, whilst such services can provide highly personalised user-led care, there are associated risks that the care workers: are not regulated; can become ‘siloed’ (rather than working in partnership with other carers); and cannot benefit from professional oversight and support. In response to this, a number of ‘umbrella organisation’ businesses have been established to provide a range of support and reassurance to both care workers and service users in these settings by delivering some or all of the following types of services:

  • recruiting people who want to work as carers;
  • assessing carers’ knowledge and skills;
  • matching care workers with people who wish to receive care at home;
  • ongoing support and training to the care workers in relation to both care and business skills; and
  • monitoring the quality and safety of the service provided.

These ‘umbrella organisations’ can find themselves operating at the very boundary of the requirement for registration with CQC. Some have registered with CQC has very small domiciliary care agencies, but CQC acknowledge that not all aspects of the model for inspection of traditional domiciliary care agencies will be applicable to these organisations. In contrast, CQC have indicated that other providers have sought to curtail the range of services they provide in order to fall short of the need for registration. As part of its latest round of ‘regulatory sandboxing’ reviews, CQC is looking at these umbrella organisations and the work they do in orders to provide greater clarity on:

  • when such services can be regarded as carrying on ‘regulated activity’ and need to be registered with CQC; and
  • where they are to be registered, how best to inspect them.

The sandboxing exercise is now underway and CQC propose to publish a summary of the work and their plans and further engage with the sector in the Spring.

It will be important for providers to follow these developments and any forthcoming guidance from CQC as to whether, and if so how, their services need to be registered and inspected.