Public bodies such as local authorities and regulatory bodies frequently make important decisions about vulnerable people and their rights to services in relation to their care. There is legal mechanism in place where providers can challenge the decisions of CQC via issuing judicial review proceedings.
Recent years have shown that providers are no longer shying away from challenging the decisions of public bodies. For example, there are currently judicial review proceedings against Essex County Council over care home fees and a GP practice in Newcastle is seeking judicial review against CQC’s Nation Quality Assurance Panel decision to downgrade the practice from a ‘Requires Improvement’ rating given by the inspection team to ‘Inadequate’ without adequate reasons being given.
Recent decisions in relation to challenging Ofsted decisions have also shown examples of success where a regulators decision has been challenged. For example, the courts had recently quashed an Ofsted report which rated Durand Academy, a south London primary school as ‘Inadequate’ because it found that a key aspect of the inspectorate’s complaints procedure was “not a rational or fair process.”
These cases demonstrates that regulators are not immune from criticism by the courts. A judge would only be reluctant to make a decision against a public body, where it relates to matters of public policy, but this is dependent on the nature of the decision being challenged.
Judicial review a form of court proceeding whereby the judge reviews the lawfulness of a decision or a failure to act by a public body exercising a public function. Judicial review can only be commenced if all other means of challenge have been exhausted, in the context of CQC procedures, one would have to go through processes such as the factual accuracy stage process and rating reviews before justifying a judicial review challenge.
There are three grounds available in which you can bring judicial review proceedings: –
- Illegality- Decision-makers can only do what the law permits them to do. If they fail to follow the law properly, their decision, action or failure to act will be deemed “illegal”
- Fairness- This ground states that a public body should never act so unfairly that it abuses its power.
- Irrationality and proportionality- The courts may intervene to quash a decision if they consider it to be so demonstrably unreasonable as to constitute ‘irrationality’ or ‘perversity’ on the part of the decision maker.
Recent judicial review cases such as SSP has highlighted that providers are becoming more savvy in challenging the decisions made by CQC. The SSP case demonstrates that judicial review proceedings can be a means for public bodies to review and reconsider their processes and procedures.
Some of the major drawbacks in issuing judicial review proceedings are the high cost implications and the limited prospect of success, which is why proceedings should be brought forward as a last resort. This is a complex area of law, therefore you should seek legal advice if you think you have a claim.