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

Procedural fairness in the publication of a regulator’s critical inspection report is context-specific. It will usually be met where the regulated provider has fair notice of the proposed findings and a fair opportunity to respond. Fairness does not ordinarily require the provider to comment again on amendments made after its factual-accuracy comments, particularly where an independent officer reviews the response.

A decision requiring an independent review of demonstrably wrong or misleading factual findings does not prescribe a universal procedural code. A specialist regulator may lawfully rate a provider by reference to the inspection date, while recording later improvements without recalculating the rating, unless that choice is irrational.

The Care Quality Commission inspected Hexpress Healthcare Ltd, an online medical service, and issued a draft report rating its services overall as requiring improvement. Hexpress submitted extensive factual-accuracy comments. The lead inspector considered them and an inspection manager independent of the inspection reviewed the proposed amendments before the final report was issued.

Mostyn J granted permission for judicial review only on a separate challenge to the small sample of patient records. He refused permission on Hexpress’s complaints that the factual-accuracy process was unfair and that the Commission should have reflected post-inspection improvements in the ratings. Hexpress appealed those refusals.

The central issues were whether fairness required a further opportunity to comment on amendments after the factual-accuracy process, and whether it was irrational to rate the service at the inspection date while reporting later improvements.

1. Appeal dismissed. The two additional grounds were not arguable. Hexpress could continue only with the judicial-review ground on which Mostyn J had granted permission.

2. The Commission’s process was procedurally fair. The statutory requirements in section 61 of the Health and Social Care Act 2008 did not exhaust the common-law duty of fairness where a report might criticise a provider. Nevertheless, fairness is context-specific. Hexpress received the draft report, had a fair opportunity to make factual-accuracy comments, and those comments and the lead inspector’s response were reviewed by an inspector independent of the inspection.

3. Ordinarily, an opportunity to answer proposed criticism is sufficient. Fairness did not require Hexpress also to receive and comment on every amendment before the report was finalised. The approach was consistent with the general principles in Pergamon Press, Maxwell v DTI and Shoesmith.

4. SSP Health did not establish a general procedural code. It addressed a case in which objectively verifiable factual errors had remained uncorrected. Its requirement for an independent review, if requested, was confined to that context. The Commission’s standing independent-review process fairly safeguarded against demonstrably wrong or misleading statements. The court did not follow the broader interpretation adopted in Babylon Healthcare.

5. The Commission lawfully rated Hexpress by reference to the date of inspection. Section 61(2)(a) required a report on the matters inspected, although it did not prohibit use of a later rating date. Selecting the inspection date was for the specialist regulator unless irrational. Recording subsequent improvements without re-rating the service promoted consistency and finality, and avoided incentives to prolong the reporting process. The decision was rational.

• Court of Appeal (Civil Division): dismissed Hexpress’s appeal and upheld the refusal of permission to pursue the two additional judicial-review grounds: [2023] EWCA Civ 238.

• Divisional Court: Mostyn J granted permission on the challenge to the six-record sample, but refused permission on the procedural-fairness and post-inspection-improvements grounds, and refused interim relief: [2022] EWHC (Admin).