ADVINIA HEALTH CARE LTD (R on the application of) v CARE QUALITY COMMISSION

The court quashed the revised Care Quality Commission Guidance to the extent that it treated the word "likely" in section 56(1) of the Care Act 2014 as meaning only a "real possibility". The judge held that, in the statutory context, "likely" in section 56(1) means "more probable than not". The decision turned on statutory construction of sections 55–57 of the Care Act 2014, and on balancing the statutory objectives of early warning to local authorities against the risk that premature notification might precipitate provider failure.

The court rejected challenges that the Revised Guidance was unlawfully procedurally unfair or deficient in relation to confidential information. It held that the Revised Guidance provided for engagement with providers, ordinarily an opportunity to comment before a section 56 notification, and sufficient safeguards on disclosure of commercially sensitive information. The judge found no requirement in the Act for an independent external review of CQC evaluative judgments under sections 55–56.

Background and nature of the claim: Advinia, a registered adult social care provider subject to the Market Oversight Regime, sought judicial review of the Care Quality Commission's revised Guidance on Market Oversight (published February 2021). Advinia challenged (1) the construction of "likely" in section 56(1) Care Act 2014 adopted in the Revised Guidance, (2) alleged procedural unfairness in the Guidance's processes under sections 55 and 56 (including absence of a guaranteed pre-decision opportunity to make representations and absence of independent review) and (3) the Guidance's approach to disclosure of confidential information and alleged failure to have regard to statutory considerations.

Procedural posture: Permission to apply for judicial review was granted by Collins Rice J on 5 October 2021. This is a first‑instance decision in the Administrative Court.

Issues before the court:

• Ground 1: Whether "likely" in section 56(1) means "a real possibility/real prospect" (as the Revised Guidance stated) or "more probable than not" (as Advinia argued and as the Original Guidance had said).
• Ground 2: Whether the Revised Guidance is procedurally unfair because it does not guarantee an effective opportunity to make representations before CQC decisions under sections 55 and 56 and because it provides no independent review of such decisions.
• Ground 3: Whether the Revised Guidance is unlawful in relation to disclosure of commercially sensitive information and failed to direct officials to have regard to relevant matters (notably provisions in section 4 of the Health and Social Care Act 2008).

Reasoning and conclusions: On Ground 1 the court engaged in statutory construction (considering text, immediate statutory context, the role of sections 55–57, related provisions and purposes of the regime, and relevant authorities) and concluded that because section 56(1) creates a mandatory duty to notify local authorities once the CQC "is satisfied" of likelihood and because notification carries weighty consequences, "likely" should be read as "more probable than not". The judge considered competing considerations (early warning vs. risk of precipitating failure) and concluded that the statutory design favoured a higher threshold to avoid needless precipitating of failure.

On Ground 2 the court applied the established principle that a policy is unlawful only if it sanctions unlawful conduct or is inherently incapable of lawful operation. The Revised Guidance provided a staged, intensifying process of engagement, an "evolving conversation", and ordinarily a chance for providers to confirm or challenge information before a section 56 decision. The judge found no inherent unfairness and no statutory requirement for an external independent review of the CQC's evaluative judgements.

On Ground 3 the court found the Revised Guidance gave adequate safeguards about confidentiality, explained circumstances in which disclosure might be necessary (including statutory duties), and did not fail to have regard to relevant statutory considerations. The judge therefore allowed the challenge on Ground 1 only and dismissed Grounds 2 and 3, making declarations and quashing the Revised Guidance to the extent necessary to reflect the correct construction of "likely" in section 56(1).

Allowed in part. The claim succeeded on Ground 1: the court declared that "likely" in section 56(1) Care Act 2014 means "more probable than not" and quashed the Revised Guidance insofar as it treated "likely" as merely a "real possibility". Grounds 2 and 3 (procedural unfairness and confidentiality/section 4(1) challenges) were dismissed: the Revised Guidance could be operated lawfully, provided for engagement and ordinarily an opportunity to comment, and contained adequate confidentiality safeguards; the Act does not require an independent external review of CQC evaluative decisions under sections 55–56.

Permission to apply for judicial review was granted by Collins Rice J on 5 October 2021. This judgment is at first instance in the Administrative Court (High Court, Queen's Bench Division).