Mary George Ltd, R (on the application of) v Care Quality Commission & Anor

A judicial review claim must identify an arguable public law error. A disagreement with a regulator’s factual findings or evaluative conclusions does not, without more, establish Wednesbury unreasonableness. A local authority’s contractual decision to suspend referrals may have a sufficient public law element where the contract implements statutory social-care functions, but the decision remains unlawful only if an arguable public law defect is shown. Delay and the absence of prejudice are separate considerations when extending time. Contractual rights may constitute possessions for Article 1 of the First Protocol, but any interference must still be justified and proportionate.

Mary George Limited sought permission for judicial review of the Care Quality Commission’s decision to promulgate and maintain an adverse compliance report concerning its care home, and of Wirral Borough Council’s decision to suspend further referrals to the home. The claim against the Council was issued nearly five weeks outside the three-month time limit. The Council relied on its statutory social-care functions and contractual powers, while the claimant also alleged disproportionate and Wednesbury-unreasonable conduct and interference with Article 1 of the First Protocol.

1. Care Quality Commission. The challenge was essentially a disagreement with the inspectors’ findings and conclusions. The report contained detailed findings based on the inspection material, and there was no suggestion that the inspector had acted contrary to the applicable guidance or judgment framework. The Wednesbury challenge was therefore totally unarguable.
2. Wirral Borough Council. The claim was out of time. The claimant offered no explanation for the delay, and absence of prejudice was only one factor in deciding whether to extend time. There was no proper basis for an extension, so permission was refused on that ground alone.
3. The Council’s decision was arguably amenable to judicial review because it exercised statutory powers under section 26 of the National Assistance Act 1948 and related community-care legislation, and the contract required services to comply with the Health and Social Care Act 2008 and regulations made under it. Nevertheless, the Council had exercised its own judgment after inspections, rather than simply adopting the Commission’s report.
4. The suspension was not arguably disproportionate, Wednesbury unreasonable or otherwise unlawful. The Council’s inspections identified continuing concerns about staffing, training, care planning, hygiene and resident welfare, and the suspension was lifted when conditions materially improved.
5. Applying Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, contractual rights could constitute possessions for Article 1 of the First Protocol. If there had been an interference, it was proportionate. The court would not, however, have refused permission on that issue alone. Permission was refused.