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

For the purposes of section 56(1) of the Care Act 2014, “likely” means more probable than not, rather than a real possibility. The statutory context includes the CQC’s duty to notify local authorities and the potentially serious consequences of notification. A policy governing a public authority’s functions is unlawful only if it sanctions unlawful conduct or is inherently incapable of lawful operation. A policy may satisfy procedural fairness through structured engagement and an opportunity to provide information, even without a guaranteed formal hearing or independent review. Confidential information may be disclosed where required by statutory duties, provided the policy requires a fair, proportionate and case-specific approach.

Advinia Health Care Ltd, a registered social-care provider subject to the CQC’s Market Oversight Regime, applied for judicial review of revised guidance published in February 2021. The guidance stated that the statutory condition of being “likely” to become unable to carry on a regulated activity meant that there was a real possibility of that occurring.

Advinia challenged the guidance on three grounds: statutory misinterpretation; procedural unfairness concerning representations and independent review; and unlawful treatment and disclosure of confidential information. The central issues were the proper meaning of “likely” in section 56(1) of the Care Act 2014 and whether the guidance was inherently unlawful.

1. Ground 1 allowed. The word “likely” in section 56(1) of the Care Act 2014 means more probable than not. It does not mean merely a real possibility.
2. The meaning of “likely” depends on statutory context. Section 56(1) uses the expression that the CQC is “satisfied”, imposing a more demanding substantive judgment than the “considers” language used elsewhere in the section. Once the statutory condition is met, section 56(2) imposes a duty to notify local authorities. Those features point towards a probability threshold.
3. The wider statutory purpose did not require the lower threshold. The Market Oversight Regime aims both to give local authorities sufficient warning and to avoid notification precipitating the provider failure it seeks to manage. The CQC retains powers under section 55 to assess financial sustainability and require mitigation before the notification duty arises.
4. Ground 2 dismissed. Applying the approach in R(A) v Home Secretary, a policy challenge turns on whether the policy sanctions unlawful conduct or is inherently incapable of lawful operation. The revised guidance required continuing engagement and an evolving dialogue. It normally allowed the provider to comment on the information relied upon, while permitting urgent action where delay might endanger service users. That was capable of fair and lawful operation.
5. Fairness did not require an independent body to review or re-perform the CQC’s evaluative risk assessment. The statutory scheme assigned that assessment to the CQC.
6. Ground 3 dismissed. The guidance lawfully recognised that confidential information might need to be supplied under section 56. It required case-specific, proportionate consideration, an audit trail and advance notice except in exceptional circumstances. It did not need to reproduce section 4 of the Health and Social Care Act 2008. The guidance was quashed only to the extent necessary to reflect the conclusion on Ground 1, and appropriate declarations were made.