Hexpress Healthcare Limited, R (on the application of) v Care Quality Commission

A regulator’s factual-accuracy process is lawful if an independent reviewer considers the draft report, the provider’s factual-accuracy comments and the inspection team’s response before the final decision. Procedural fairness does not necessarily require a further provider reply before review, particularly where the process concerns objectively verifiable primary facts and delay may undermine public protection. It was arguable that a regulator had drawn generalised safety conclusions from six records out of 60,000, so permission was granted on that ground. An injunction restraining publication of a report which a public body is under a statutory duty to publish requires exceptional circumstances or exceptionally strong grounds, beyond an ordinary arguable case.

The claimant operated an online medication-prescribing service regulated by the Care Quality Commission. Following an inspection based partly on six reviewable records, five of which raised concerns, the CQC proposed adverse ratings and requirements under the Health and Social Care Act 2008 and the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

The claimant sought permission to apply for judicial review of the proposed publication of the inspection report and an injunction restraining publication. It argued, among other things, that the CQC had used an inadequate sample, applied an unfair factual-accuracy procedure, acted irrationally and made factual errors.

1. Disposition. Permission to apply for judicial review was granted on Ground 2, concerning the alleged invalidity of generalised conclusions drawn from six records out of 60,000. Permission was refused on Grounds 1, 3, 4 and 5. The injunction application was refused.
2. Factual-accuracy procedure. The CQC’s condensed procedure was fair and lawful. It involved review of the draft report, the provider’s factual-accuracy comments and the inspection team’s response by an independent reviewer, followed by a final decision. The court did not read SSP Health as requiring the provider’s further reply to be supplied before the independent review. If that was the correct interpretation of SSP Health, there was a powerful reason not to follow it, namely avoidance of a time-consuming and unnecessary additional step, particularly where the alleged errors concerned primary concrete facts and the CQC had a statutory public-protection function.
3. Sample size and proportionality. The court did not decide the merits of the challenge. It held only that it was arguable that conclusions that safety was inadequate, or that effectiveness and leadership required improvement, could not logically and fairly be extrapolated from such a limited sample. The substantive hearing could consider expert statistical evidence and evidence concerning the resources required for larger samples.
4. Report and factual-error grounds. The report’s references to different time periods created some lack of clarity, but did not justify separate permission once Ground 2 was arguable. Factual errors were ordinarily for the factual-accuracy process and could not be revisited absent an error of law or abuse of power. No prima facie case of irrationality, bad faith or abuse of power was shown.
5. Interim injunction. Under City College Birmingham, the ordinary American Cyanamid balance-of-harm approach was insufficient by itself where publication was required by statute. Exceptional circumstances, most compelling reasons or exceptionally strong grounds were required. The claimant’s arguable case and potential reputational damage did not meet that threshold.

First-instance judicial review permission and interim-relief decision. No earlier decision in the same litigation was stated.