SSP Health Ltd, R (On the Application Of) v Care Quality Commission

A regulator that permits an inspected body to challenge draft factual findings must operate that process fairly. Where an adverse finding is demonstrably inaccurate or misleading by reference to objective evidence, the regulator must correct it, test the contrary assertion, or formulate the finding accurately. It must not conclude that a record, system or item does not exist merely because inspectors did not see it and staff did not mention it.

The process does not provide a second opportunity to raise factual objections omitted from the designated stage. Procedural fairness may nevertheless require an independent and swift internal review of a refusal to make corrections that were properly raised. Judicial review remains available, but should be a remedy of last resort.

The claimant, a registered healthcare provider, challenged the Care Quality Commission’s handling of its inspection report concerning a GP practice. The CQC’s published process allowed comments on factual accuracy before publication and a limited post-publication review concerned only with the ratings decision-making and aggregation process.

The claimant complained that several draft findings were inaccurate or misleading. The Lead Inspector made two changes but maintained other findings. After publication, the CQC refused a ratings review because the complaint did not concern a defect in the ratings process. The central issue was whether procedural fairness required a further independent review of the refusal to correct factual findings, despite the absence of such a mechanism in the statutory scheme or Provider Handbook.

1. Claim partly succeeded. The court declined to quash the CQC’s decision of 17 June 2015 or declare that the refusal of a Handbook ratings review was unlawful. It granted a limited declaration requiring the CQC to provide an independent review, on request, of a decision made in response to factual accuracy comments where the complaint is that a maintained fact-finding is demonstrably wrong or misleading.
2. The factual accuracy stage was intended to ensure that the final report was based, so far as possible, on accurate and balanced findings. Where the existence of a record, system or item could be objectively ascertained, the CQC could accept the provider’s assertion, request evidence, inspect relevant material, or amend the report to record accurately what the inspectors had and had not seen. It was outside the range of reasonable responses to maintain a positive finding that something did not exist solely because inspectors had not seen it or staff had not mentioned it.
3. The same principle applied where wording created a misleading implication, such as suggesting that all staff were legally required to undergo DBS checks. The report could instead identify the legitimate concern more precisely.
4. The duty was limited. Inspectors could rely on contemporaneous notes where the provider disputed what inspectors had been told or observed. The factual accuracy process was not a second opportunity to adduce evidence or raise new factual challenges omitted from the prescribed stage. A provider that failed to use that opportunity could not later complain of procedural unfairness.
5. Nevertheless, fairness required an effective, swift and independent internal review of a Lead Inspector’s refusal to make corrections properly raised at the appropriate stage. Requiring the provider immediately to commence judicial review would impose a disproportionate burden. The review need not ordinarily delay publication, although a short delay might be justified where irreversible reputational damage was threatened.
6. The claimant’s request had not clearly sought that specific review, so the challenged decision was not itself unlawful. The court nevertheless declared the procedural obligation and expected the CQC to reconsider the relevant findings.

First-instance judicial review in the Administrative Court. No prior appellate decision was stated in the judgment.