CQC Fit and Proper Persons Requirement Explained: Regulations 4, 5, 6, 7 and 19

CQC Fit and Proper Persons Requirement Explained: Regulations 4, 5, 6, 7 and 19

The fitness tests for directors, nominated individuals, registered managers, staff and individual providers are set in different regulations. Here is who each applies to, what the tests are, the information CQC expects, and your ongoing duty to act.

“Fit and proper” is not one test. CQC calls Regulation 5 the fit and proper persons requirement (FPPR) for directors, but separate regulations set the fitness tests for individual providers and partners (Regulation 4), nominated individuals (Regulation 6), registered managers (Regulation 7) and everyone else you employ (Regulation 19). They share the same core tests: good character, the right qualifications, competence, skills and experience, and the health to do the role with reasonable adjustments, plus the ability to supply Schedule 3 information. Regulation 5 adds tests on serious misconduct and mismanagement and the grounds of unfitness in Schedule 4.

Mixing up which fitness rule applies to which person is a common registration mistake, and it leads to gaps in evidence. This guide sets out who each regulation covers, the tests, the information CQC expects, and what you must do if someone stops being fit, using CQC’s regulation guidance and the regulations themselves. CQC marks some of its director guidance as under review, so check its site for the latest.

Which Regulation Covers Which Person?

CQC’s guidance says Regulation 5 applies to all registered providers except individuals and partnerships (other than LLPs), which are governed by Regulation 4. It covers board directors, board members and people performing equivalent functions, including associate directors and interim appointments, irrespective of voting rights, plus trustees of charitable bodies and members of the governing bodies of unincorporated associations. A provider decides who falls within scope and CQC takes a view on whether it has done that effectively (CQC: Fit and proper persons: directors).

The Tests in Each Regulation

The regulations share a core set of tests:

• Good character. When assessing character the matters considered must include those in Part 2 of Schedule 4: convictions, and being erased, removed or struck off a register of health or social work professionals (Schedule 4).
• Qualifications, competence, skills and experience necessary for the role.
• Health: able, after reasonable adjustments, to properly perform tasks intrinsic to the role. CQC says this does not mean people with a long-term condition, disability or mental illness cannot be appointed.
• Schedule 3 information available to supply to CQC (see below).

Regulation 5 adds two more tests for directors: the individual has not been responsible for, privy to, contributed to or facilitated any serious misconduct or mismanagement in carrying on a regulated activity or a similar service elsewhere, and none of the grounds of unfitness in Part 1 of Schedule 4 apply. Those grounds are being an undischarged bankrupt or having had estate sequestration awarded, a bankruptcy restrictions order, a debt relief order moratorium, an undischarged arrangement with creditors, being on the children’s or adults’ barred list, and being prohibited by law from holding the office.

CQC’s guidance adds that there is no time limit for considering serious misconduct or responsibility for failure in a previous role, even though convictions and bankruptcies can become spent. Where a provider judges someone suitable despite information within Schedule 4 Part 2, it should record its reasons and make them available (CQC: Regulation 5).

Registered Managers and Nominated Individuals

Registered managers (Regulation 7) must not manage a regulated activity unless fit to do so: of good character, with the qualifications, competence, skills and experience to manage it, able by reason of health to do so with reasonable adjustments, and able to supply the Schedule 3 information. CQC’s guidance expects them to show appropriate knowledge of the Regulated Activities Regulations, relevant best practice and the consequences of failing to act on requirements (CQC: Regulation 7). See how to hire a registered manager.

Nominated individuals (Regulation 6) apply where the provider is a body other than a partnership. The body must notify CQC of the name, address and position of an individual who is employed as a director, manager or secretary and is responsible for supervising the management of the regulated activity. The registered person must take all reasonable steps to ensure that person is of good character, has the qualifications, competence, skills and experience to supervise the management of the regulated activity, is able by reason of health to do so, and can supply the Schedule 3 information (CQC: Regulation 6). CQC’s director guidance says it will continue to review the suitability of nominated individuals and registered managers on the same principles as directors.

Individual providers and partners (Regulation 4) must be of good character, able by reason of health to perform their tasks, and able to supply Schedule 3 information, and CQC’s guidance also lists the necessary qualifications, competence, skills and experience to carry on the regulated activity or supervise its management (CQC: Regulation 4).

Everyone Else: Regulation 19

Regulation 19 requires providers to employ people of good character with the qualifications, competence, skills and experience for the role, who are able by reason of health to perform it, and to run effective recruitment procedures. CQC’s guidance says Schedule 3 information must be confirmed before people are employed, that reasons should be recorded where someone is judged suitable despite information in Schedule 3, and that where another party does the checks, the provider must assure itself they are complete and satisfactory (CQC: Regulation 19). See the care staff recruitment file checklist.

Schedule 3: The Information CQC Expects

Schedule 3 of the Regulated Activities Regulations sets the information that must be available for each person (legislation.gov.uk: Schedule 3):

On DBS, CQC says individual providers, registered partners and registered managers applying to CQC need an enhanced DBS with barred list information that is CQC countersigned, no more than 12 months old, and CQC does not accept Update Service checks for registration. For directors, CQC’s Regulation 5 guidance says providers should establish whether they are on the barred lists where they meet the eligibility criteria, and assess bankruptcy, sequestration, insolvency and creditor arrangements. See DBS checks for care staff and how to register with CQC.

The Ongoing Duty: What If Someone Stops Being Fit?

Regulation 5(6) requires a provider, where a director no longer meets the requirements, to take such action as is necessary and proportionate to ensure the position is held by a person who does, and to inform the professional regulator if the person is a registered professional. CQC’s guidance says providers must assess and regularly review directors’ fitness, deciding how often based on the risk the person or role poses, must have arrangements to respond to concerns, must investigate concerns in a timely way, and may need interim measures while an investigation is under way (CQC: Regulation 5). The same principle runs through Regulations 6, 7 and 19: if you discover information suggesting someone is not of good character after appointment, you must act in a timely way.

CQC’s guidance says it does not investigate individual directors. If it receives information of concern it passes it to the provider, asks for the steps taken to assure the director’s fitness and a full response, and where processes are not robust or a decision is unreasonable it may discuss further, schedule an inspection or take regulatory action (CQC: Fit and proper persons requirement: directors, which CQC marks as under review).

How CQC Treats Breaches and Registration

CQC’s guidance on Regulations 4, 5, 6 and 7 says it cannot prosecute for a breach of those regulations or any part of them, but can take regulatory action. For Regulations 4, 6 and 7 it also says it must refuse registration if the provider cannot satisfy it that it can and will continue to comply. During registration CQC may arrange a Fit Person Interview, a Site Visit Assessment or a Nominated Individual Discussion (CQC: Register as a provider). Prepare interviewees on the regulations that apply to their role.

Keeping Fit and Proper Evidence

A suggested evidence file for each director, nominated individual and manager (our suggestion, based on the tests above):

• Identity, DBS and barred list evidence, with the check date and how you decided on any disclosure.
• Employment history with gaps explained, and references or conduct evidence.
• Qualifications and, where relevant, professional registration.
• Bankruptcy and insolvency checks and a signed declaration for directors.
• A record of the health and adjustments assessment, kept confidentially.
• The date of your last fitness review, who did it and any actions.

Sources: CQC: Regulation 4 · CQC: Regulation 5, fit and proper persons: directors · CQC: Regulation 6 · CQC: Regulation 7 · CQC: Regulation 19 · CQC: Fit and proper persons: directors · legislation.gov.uk: Schedule 3 · legislation.gov.uk: Schedule 4