What is a regulated activity and who has to be regulated?

We frequently get contacted by people wondering whether they are providing a regulated activity and whether they need to be CQC registered.  We believe there's a lot of confusion out there over this and we intend to do some further articles / opinion pieces on this in the future.  This article looks at the legislation and to help you establish what a regulated activity is and why it's important.

What is a Regulated Activity?

There are six categories of regulated activity, full details of which are defined under the Safeguarding Vulnerable Groups Act 2006, details of which can be found in this Department of Heath paper.  The most important, with regards to Paid Carers, is the provision of personal care, defined as follows

1. Anyone who provides an adult with physical assistance with eating or drinking, going to the toilet, washing or bathing, dressing, oral care or care of the skin, hair or nails because of the adult’s age, illness or disability, is in regulated activity.
2. Anyone who prompts and then supervises an adult who, because of their age, illness or disability, cannot make the decision to eat or drink, go to the toilet, wash or bathe, get dressed or care for their mouth, skin, hair or nails without that prompting and supervision, is in regulated activity.
3. Anyone who trains, instructs or provides advice or guidance which relates to eating or drinking, going to the toilet, washing or bathing, dressing, oral care or care of the skin, hair or nails to adults who need it because of their age, illness or disability, is in regulated activity.
4. There is one exception to this. Excluded from regulated activity is any physical assistance provided to an adult in relation to the care of their hair when that assistance relates only to the cutting of the adult’s hair.  This is to ensure that hairdressers who cut the hair of patients and residents in hospitals and care homes are not engaging in regulated activity.

Illustrative examples, please note these are taken from the guidance and therefore are not specific to Paid Carers but illustrate the roles that may or may not be considered personal care as a regulated activity under DBS:

1. A care assistant in a care home who cuts and files an adult’s nails to keep the nails short and safe, because the adult cannot do it themselves (for example, because they cannot see well enough) would be engaging in regulated activity.
2. A volunteer who prepares and serves a meal to an adult in their own home (but does not feed the adult) is not engaging in regulated activity. To be engaged in regulated activity you must provide physical assistance to the person, for example spoon feeding that person, or you must be prompting and supervising (for example, prompting and supervising a person with dementia, because without it they would not eat), or training or instructing (for example, teaching a person who has suffered a stroke to eat using adapted cutlery).
3. A health care assistant on a hospital ward who feeds an adult because they are too frail to feed themselves would be engaging in regulated activity. 5. A worker in a care home who reminds a person with dementia to eat their lunch, and ensures they do so is in regulated activity

 Additionally anyone who provides day to day assistance to an adult because of their age, illness or disability, where that assistance includes at least one of the following would also be engaging in regulated activity

• managing the person’s cash  [Ads]
• paying the person’s bills
• shopping on their behalf

Any drivers and any assistants who transport an adult because of their age, illness or disability to or from places where they have received, or will be receiving, health care, relevant personal care or relevant social work are in regulated activity.A person whose role includes the day to day management or supervision of any person who is engaging in regulated activity, is also in regulated activity. 

What does it mean if you're carrying out a Regulated Activity

If you're carrying out a regulated activity then depending on your business set up it can mean different things.

DBS and Regulated Activity

You are only able to undergo an enhanced DBS check if you're carrying out a regulated activity.   For anyone not carrying out a regulated activity then you can only have a basic DBS check. 

Providing Care, CQC and Regulation

The basic premise is that every organisation that provides services which include regulated activities must be registered and monitored by CQC (The Care Quality Commission).  So if you or any of your staff are providing personal care (washing, feeding, dressing) then you'll need to register.    However there are exceptionsRegistration with the CQC is NOT required if you;

• do not provide a regulated activity i.e you are not providing intimate personal care or
• are employed by the service user directly or
• are a self-employed sole trader, and you have no responsibility for supplying a substitute at any time (i.e., if you are on holiday, off sick, etc.)

Paid Carers therefor do not need to be registered with the CQC if you  are employed directly by the client. If you are self employed as a paid carer then you will need to be careful about how cover is organised for your position in order to not be registered.so  If YOU get someone to cover your role then it is considered that you are supervising them and the support/care they provide and as such you will need to register.  If you tell your client that you will be away and THEY organise someone to cover that absence, then registration is not required.Having said this CQC registration is an excellent way of improving you business.  CQC have recently changed their pricing structure which means that it is now a realistic business option for micro providers to be registered.  So as your business grows CQC is definitely something that you should be considering.