Is Judicial Review Available To Challenge CQC Decisions?

Topics covered: challenge cqc, complaints, fac, FAC PROCESS, factual accuracy comments, Judicial Review, Judicial Review Claim, Judicial Review Proceedings, Parliamentary and Health Service Ombudsman, PHSO, rating reviews

Providers may feel that they have nowhere to turn to seek justice when aggrieved by Care Quality Commission (“CQC”) decisions. There is a legal mechanism in place where Providers can challenge the decisions of the CQC, by issuing judicial review proceedings. In recent years, providers have increasingly sought to challenge the decisions of public bodies, including the CQC. This article explores some of the steps and considerations Providers should take before embarking on this costly and risky proceedings, but also highlights the benefits obtained by Providers at various stages of the process.

Judicial Review Proceedings

Judicial review is a form of court proceeding whereby the judge reviews the lawfulness of a decision, action or failure to act, by a public body. The judge does not re-make the decision, but instead reviews the processes applied when the original decision was made and decides if it was lawful.

There are strict time limits to apply for judicial review. Applications must be made without delay and no later than 3 months after the decision/action. In the context of CQC procedures, an example is issuing judicial review proceedings (subject to exhausting internal processes) against the decisions made and rating(s) given in an inspection report. The three months’ time limit would start on the date the final inspection report is received by the Provider.

There are three grounds available in which you can bring judicial review proceedings: –

Illegality – When a decision maker has acted beyond their powers. If they fail to follow the law properly their decision, action or failure to act will be deemed “illegal”

Irrationality – The courts may intervene to quash a decision if they consider the decision-maker has been irrational or disproportionate in its decision making. it to be so demonstrably unreasonable as to constitute irrational or disproportionate on the part of the decision maker.

Procedural impropriety – This ground states that a public body should never act so unfairly that it abuses its power, for example, through bias.

As mentioned, judicial review is costly, risky and a complex area of law and Providers should strongly consider seeking legal advice before starting proceedings. There are other considerations that should be made beforehand.

Exhausting The Public Bodies Internal Processes

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 as a minimum, before justifying a judicial review challenge.

Factual Accuracy

The factual accuracy process takes place prior to the publication of the inspection report and is the prime opportunity for a Provider to seek to correct any erroneous, unreasonable or disproportionate statements within a draft inspection report.

The process allows a Provider to challenge the accuracy and completeness of the evidence and findings on which the ratings are based.  The CQC’s guidance is clear that you can also challenge the ratings at this stage, which is beneficial because unlike a rating review, there is no word limit (which may change under the CQC’s new inspection regime), so this process is often the better route to use to challenge anything and everything.

Whilst, we often achieve success for our clients at this stage, there are occasions when the CQC has failed to grapple the challenges presented, acknowledge inaccuracies and apply proportionate reasoning.

Rating Review

Often CQC inspectors immediately, and incorrectly, signpost Providers to the rating review process if a Provider expresses any dissatisfaction with the CQC’s response to the factual accuracy submissions or the final inspection report. This is despite the rating review being an entirely different process to the factual accuracy check. The only ground for requesting a rating review is that the CQC has failed to follow its processes for making ratings decisions. The CQC fail to acknowledge that a rating review is not an automatic next step to the factual accuracy process. Unlike the factual accuracy check, a rating review takes place after publication of the inspection report. During the review the report remains published on the CQC’s website. For that reason, a Provider could issue a claim for judicial review upon receipt/publication of the final inspection report. Furthermore, it could take the CQC up to 50 working days to consider a rating review request, which would impact on the time limit for issuing a judicial review claim.

Complaint

There are limited grounds for a complaint – failure to follow process and procedure, administrative error and/or unprofessional behaviour. However, in reality, whilst using these heads of complaint, Provider’s should not limit themselves with the complaint narrative. When complaining, be sure to clearly state what is being sought, which could include re-inspection, a change in inspection team or a meeting with the CQC.

Submitting a complaint to the CQC should not be used as an alternative to submitting factual accuracy comments or a rating review. If so, the CQC will respond to the complaint highlighting that the Provider has not used other processes that were available to them at the time. A complaint could be considered before judicial review, but likewise, not as an alternative. The CQC can take an incredibly long time to deal with a complaint which would jeopardise a Provider’s opportunity for judicial review, should the Provider intend to see that process through. In fact, many Provider’s do not realise that the CQC will often suspend the investigation of a complaint if there is ongoing enforcement action or the hint of litigation. In addition, the CQC will suspend a rating review request if a complaint is being investigated. These complex loop holes are hard to navigate, but our team are well versed at using the CQC’s tools and processes to benefit the Provider.

Parliamentary and Health Service Ombudsman (PHSO)

Recognising the difficulties with judicial review, Parliament established a system for aggrieved persons to have complaints, about the manner in which decisions have been taken, referred to an “ombudsman.” The PHSO will consider complaints about procedural errors but not usually substantive issues. These claims arise where it is recognised that there is no legal remedy and claimants are usually required to undertake that, if the PHSO agrees to review a complaint, the complainant will not seek a legal remedy later. Furthermore, ombudsmen cases usually follow the exhaustion of the public bodies own internal complaints procedures and therefore, often comes at the end of a very long process, which means that Providers are often faced with the decision to either start judicial review proceedings or complain to the PHSO.

May Not Need To Issue Proceedings

The judicial review pre-action protocol has been in force since 4 March 2002 and imposes a requirement that the claimant send a detailed letter of claim to the defendant (e.g. the CQC) and give it time (usually 14 days) to respond before proceedings are issued. A pre-action protocol letter also known as a Letter Before Action sets out the facts, the decision that is said to be wrong and the reason that decision is wrong. In answering the Letter Before Action, the CQC may review its original decision which can achieve the desired outcome for the Provider such as removal of alleged regulatory breaches or an upgrade of rating(s). However, a letter before action warns the public body that you intend to bring court proceedings and therefore should not be sent with no intention of following through. That said, Providers can use the public bodies response to inform its judgment on whether to pursue a claim or not. Furthermore, the court encourages alternative dispute resolution and may refuse judicial review if it considered that alternative dispute resolution ought to have been attempted before proceedings were commenced. So, whilst there is the desire to act firmly and the necessity to act promptly, the claimant (in fact both parties) are encouraged to settle the dispute before commencing battle in court.

Key Takeaways

Judicial review is a remedy of last resort not only in name. The time and cost of proceedings (including the possibility of paying the other party’s costs should you lose) are prohibitive and decisions to issue a claim should not be taken lightly. Providers should first exhaust internal procedures and then continually seek to resolve the dispute by an alternative method. Not every case is a winnable case, so detailed consideration of the prospects of success should be undertaken, not just initially, but throughout, especially after receiving the public bodies response to the Letter Before Action. Some of the CQC’s internal processes jeopardise meeting the time limit for issuing a judicial review claim so often a strategic approach is required.

Ridouts can assist Provider’s with asserting robust factual accuracy challenges that stand up to potential scrutiny by a judge should a judicial review case be pursued. Our lawyers are equipped to draft powerful and succinct rating review requests which realise the grounds for challenge and we are known for submitting complaints that confront the unsuitable approach sometimes adopted by the CQC. These are the stepping stones to building a solid case for judicial review to the extent that our clients have experienced success at the pre-action stage, avoiding full-blown litigation.

For assistance with factual accuracy challenges, rating reviews, complaints and if you are thinking if starting a judicial review claim, contact Ridouts on 0207 317 0340.

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