Can I judicially review a decision of the Care Quality Commission (‘CQC’)?
The CQC is a public body and is therefore subject to judicial review if;
The decision or act is public in nature;
You have a ‘sufficient interest’ in the decision, act or omission;
You can satisfy one of the grounds for challenging the decision, act or omission;
You have exhausted internal procedures and/or alternative remedies; and
You are within the applicable time limits
Do I have a ‘sufficient interest’ to bring a claim?
In order to bring a claim for judicial review you need to show that you have a ‘sufficient interest’ in the subject matter of the decision you are seeking to challenge. As a service provider and proprietor of a Care Home which is the subject of a decision made by the CQC, such as a rating following an inspection, you would have sufficient interest to bring a claim.
What are the grounds for judicial review?
The grounds for reviewing a decision or act of a public body are:
Illegality – the CQC has acted outside the law governing the action in question
Procedural unfairness – the CQC has not followed the proper procedures
Irrationality – the decision was unreasonable (so unreasonable that no reasonable person could have reached it)
Material considerations – the CQC did not take into account relevant information or took into account irrelevant information when making its decision
Legitimate expectations – the CQC has departed from previous assurances it has given that it would act in a certain way
Mistake of fact – a CQC inspector may have incorrectly recorded facts during an inspection
Proportionality – in claims involving human rights or European Law it may be necessary to decide whether an act or decision was proportionate to a legitimate aim.
Reasons - there is no general obligation on a public body to give reasons for a decision, however, in certain cases an obligation to give reasons may be imposed by legislation, governmental guidance, or common law.
The court will not interfere with the act or decision of a public body merely because it disagrees with or has doubts about the quality or merits of a particular decision. It is necessary for a claimant to demonstrate a legal flaw.
Am I within time?
There are strict time limits which apply to judicial review:
A claim for judicial review should be filed promptly and in any event within 3 months from the date the grounds to make a claim first arose. This is usually the date of the decision you wish to challenge.
A claim for certain procurement judicial review must be filed within 30 days.
As 2020 passed the baton to 2021, any optimism we may have been harbouring about a gradual return to normality, as the vaccination programme began its rollout, was badly dented by another lockdown and the inevitable economic disruption that entails.
Generally speaking, courts take robust approach to adjudicators' decisions and tend to rubber stamp the vast majority when a successful party in an adjudication applies for a court order validating the adjudicator’s decision.