Is judicial review an adequate remedy for flawed assessments by regulators?

Wednesday 17 August 2016

R (on the application of SSP Health Ltd) v Care Quality Commission [2016] EWHC 2086 (Admin), 12 August 2016.

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R (on the application of SSP Health Ltd) v Care Quality Commission [2016] EWHC 2086 (Admin), 12 August 2016

The court asked the question, “suppose that a regulator, charged by Parliament with the responsibility for the assessment and rating of certain bodies providing services to the public, affords an inspected entity the opportunity to make factual corrections to its draft report prior to publication.

The report proposes to make adverse fact findings that could be demonstrated by objective evidence to be incorrect, misleading, or unfair, but the regulator refuses to change the draft when the errors are pointed out to it. In the absence of any appeal process, what redress does the aggrieved party have?”

The defendant submitted that its sole remedy was to seek judicial review and, if appropriate, an interim injunction restraining publication of the report. The claimant submitted that the common law duty of procedural fairness requires the regulator, if so requested, to reconsider its position by means of a review that is not expressly provided for in the statutory scheme or in its own published Handbook.

The assessment process in the present case provided for a form of review on request by the inspected entity, but only after publication of the report, and only on limited grounds.

The claim in this case challenges the Care Quality Commission (CQC) decision on 17 June 2015 to refuse the request by the claimant made on 13 April 2015 to review the rating.

The Judge considered the real problem with this claim is that the request for a review did not clearly focus on the CQC's failure to make appropriate corrections. The genuine grounds for complaint were buried in a mass of other material which was either raised too late or was not an appropriate subject for review.

It seemed to the Judge that there is a real difficulty in criticising the CQC for failing to respond to a request that it should review or reconsider its response to the factual accuracy comments, and then carry out a re-evaluation of the ratings in the light of any changes, if such a request was never clearly made.

On considering whether the CQC appreciated the request for review and even when reading the Amended Statement of Facts and Grounds it is far from clear that the Lead Inspector's decision not to change the draft report in the light of the claimant's comments is the real target of challenge.

For those reasons, the Judge was not prepared to grant any declaration that the decision of 17 June was not rational or reasonable, or that the CQC was not entitled to refuse a review of that decision.

What the CQC was not entitled to refuse was a reasonable request for it to review or reconsider its responses to the claimant's factual accuracy comments and then to re-evaluate the ratings in the light of any corrections. That request was never made in clear terms, and therefore it was never expressly refused.

It was implicit in the response that the CQC did not accept that there is, or should be, any procedural mechanism for revisiting a decision taken at the factual corrections stage of the process (and that was the stance that it adopted at the hearing). It is a stance which the Judge rejected, but that does not mean that the decision of 17 June is open to judicial review.

However, the Judge would have granted judicial review of (and quashed) the Lead Inspector's decision to maintain the unfair or misleading fact-findings had that been the decision challenged, with the same practical result that the CQC would have been obliged to reconsider those matters.

The Judge noted, “In our adversarial system, there is no such thing as a score draw”. The Judge found in favour of the claimant on those arguments and said,

"...it would not be just for the claimant to go away empty-handed, therefore granting a declaration that there is an obligation on the CQC to carry out an independent review of a decision made in response to comments in the Factual Accuracy Comments Log, on a request to do so by the inspected entity, if the ground of complaint is that a fact-finding maintained in the draft report is demonstrably wrong or misleading. I deliberately express no view as to whether the right of review would extend to other scenarios. To that very limited extent, the claim for judicial review succeeded."

The transcript is available for more information.

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