Mary George Ltd, R (on the application of) v Care Quality Commission & Anor [2013] EWHC 1341 (Admin)

Case No CO/10912/2011

[2013] EWHC 1341 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT at MANCHESTER

Venue Manchester Civil Justice Centre, Bridge Street, Manchester M60 9DJ

Date 21 May 2013

Before

THE HON. MR JUSTICE SUPPERSTONE

Between

THE QUEENClaimant

on the application ofClaimant

MARY GEORGE LIMITEDClaimant

CARE QUALITY COMMISSIONDefendants

WIRRAL BOROUGH COUNCILDefendant

Simon Pritchard (instructed by Atkinson Blackledge Waring) for Claimant

Adam Fullwood (instructed by Hill Dickinson) for First Defendant

Louis Browne (instructed by Wirral Borough Council Legal Dept.) for Second Defendant

Hearing Hearing dates: 13 May 2013

Judgment

Mr Justice Supperstone :

Introduction

[1]This is a renewed application by Mary George Limited, the Claimant, for permission to challenge(1) the decision of the Care Quality Commission, the First Defendant, dated 11 August 2011 to promulgate and maintain the findings in its Review of Compliance dated August 2011 (“the Report”) in relation to the Claimant’s Mother Redcaps care home (“the Home”), and

(2) the decision of Wirral Borough Council, the Second Defendant, in refusing to effect referrals to the Home.

[2]On 30 January 2013 I refused permission on the papers.

[3]On 7 February 2013 the Claimant lodged a request for reconsideration, at a hearing, of the decision refusing permission. At paragraph 3 of the request it was stated:

“Grounds to be provided by Leading Counsel when Mr Fordham QC has had an opportunity to fully consider the decision.”

No grounds have been provided.

[4]On Sunday, 12 May 2013 at 1725 hours the Administrative Court Office at Manchester received by e-mail a witness statement of Dr Amir Matta, on behalf of the Claimant (his third witness statement), together with 95 pages of exhibits. I received a copy of the witness statement and accompanying documents on Monday 13 May 2013, shortly before the hearing commenced.

[5]Mr Pritchard, who appears for the Claimant, has only recently been instructed. He informed me that the grounds on which the Claimant relies are as set out in the claim form.

[6]At the conclusion of the hearing I reserved judgment, stating that I was doing so in order to have a proper opportunity to read the documentation exhibited to Dr Matta’s third witness statement and some further documentation that was handed up by the parties during the course of the hearing.

The claim against the First Defendant

[7]Mr Pritchard referred to paragraph 4 of the grounds for judicial review (“The Claimant submits that the findings (and outcomes) described in the report, and maintained by CQC thereafter, are not a proper and/or justified application of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010”), however he stated that the challenge to the decision of the First Defendant is essentially a Wednesbury challenge. He did not put the Claimant’s case against the First Defendant on the basis of procedural unfairness or lack of proportionality, and he disavowed an allegation of bias.

[8]In support of his submission that there was no proper basis for the findings of fact in the Report Mr Pritchard referred to earlier inspections on 29 June 2008 by CSCI, the First Defendant’s predecessor, and on 15 February 2010 by the First Defendant, which had resulted in positive reports. It was against that background that Dr Matta, the chairman and principal shareholder of the Claimant, said that the First Defendant’s June 2010 Report, which followed an inspection on 3 June 2010, “came as a complete shock” to him (see Dr Matta’s second witness statement, para 19).

[9]However, following a series of exchanges between Dr Matta and the First Defendant, whilst the First Defendant stood by the content of the June 2010 Report as an “accurate and valid assessment” of the Home, the First Defendant decided not to publish the Report (see Dr Matta’s second witness statement at paras 21-25). Accordingly there is no challenge by the Claimant to that Report.

[10]The inspection of the Home which led to the June 2011 draft report (“the draft report”) took place on 27 April 2011. The First Defendant’s inspector, Ms Sue Talbot, was accompanied by a person described as an “expert by experience”. On 14 June 2011 the First Defendant sent Dr Matta the draft report. Mr Pritchard described the nub of the Claimant’s complaint as being that the draft report contained factual errors which tainted the final report produced in August 2011.

[11]Mr Pritchard’s first criticism of the Report was made by reference to the notes made in April 2011 by Ms Talbot, relating to telephone interviews she conducted with relatives of 19 residents at the Home. At paragraphs 9 and 10 of his third witness statement Dr Matta criticises the inspectors’ summary under the heading “What People Told Us” in the Summary of Findings in the draft report and the Report as being “a distortion of the feedback the Inspector actually received from the 19 relatives she interviewed”. Whilst accepting that there was some negative feedback in the notes, Mr Pritchard suggested that the majority of the feedback was positive. However as Mr Fullwood, who appears for the First Defendant, observes, it was for the inspectors to evaluate all the feedback. The inspection lasted some eight hours. There was other information, as Mr Fullwood confirmed, before the inspectors at the time the draft report was written. Ms Tracey Devine, a Compliance Manager for the First Defendant, deals with the inspection of 27 April 2011 in her witness statement at paragraphs 31-37. In my view the reference in the Report to “mixed feedback from relatives” was a fair description of what Ms Talbot recorded in her notes. Nevertheless Dr Matta was entitled to express dissatisfaction at the failure to record in the Report the positive comments that had been made.

[12]Next Mr Pritchard referred to findings in the draft report that he submitted were unreasonable. Two such findings are considered by Dr Matta at paragraph 32.2 and 32.4 in his second witness statement.

[13]At paragraph 32.2 Dr Matta takes issue with the finding by the First Defendant in Outcome 2 (Consent to care and treatment) that the fact that the ground floor accommodation was secured with electronic key pads “meant that people living in this area of the home could not freely move about other areas or leave the building without support”. He says that the First Defendant failed to note that the area in question is the Elderly and Mental Infirm Unit for residents who suffer from dementia. The inspectors recorded that “Many of the residents living on the ground floor were physically active and would have benefited from being able to go out for a walk or use the facilities of the local community on a regular basis”. In the inspectors’ judgment “The impact of restricting their free movement in this way had not been properly assessed, recorded or reviewed”.

[14]This example illustrates, in my view, that this claim is no more than a dispute over the findings made by the First Defendant and a disagreement with the conclusions of the Report. It is to be noted, in any event, that this particular finding that Dr Matta takes objection to is only one of a number of findings set out at pages 11-12 of the Report that led to the judgment that there are major concerns with Outcome 2.

[15]Dr Matta accepts that the finding in relation to the incident he refers to in paragraph 32.4 in respect of Outcome 4 (Care and welfare of people who use services) was, after he raised it with the First Defendant, removed from the report. Nevertheless he criticises the First Defendant for maintaining the judgment in relation to that particular standard, having removed that finding. However that judgment again was made on the basis of all the material findings in respect of Outcome 4 (see pages 13-14 of the Report).

[16]Mr Pritchard next referred to paragraph 40.3 of Dr Matta’s second witness statement where he describes the First Defendant’s conclusion in respect of Outcome 10 (Safety and suitability of premises) that “the home’s layout and facilities did not promote people’s dignity and independence” as being “an unfairly harsh conclusion”. Mr Pritchard observed that previous reports had made no such complaint.

[17]The final example Mr Pritchard referred to in support of his submission that the Claimant has an arguable case which warrants the grant of permission is the matter dealt with at paragraph 33.4 of Dr Matta’s second witness statement. It relates to a meeting on 1 July 2011 when Dr Matta says he asked Ms Talbot to give him one example of any neglect that she had actually witnessed during her inspection of the Home and she referred to staff glancing at the TV whilst feeding a resident during the lunchtime, which she considered amounted to “abuse” of a resident in the form of “disrespect”. Dr Matta, by reference to the First Defendant’s Guidance, takes issue with Ms Talbot’s interpretation of the incident. As I understand it Mr Pritchard suggests this is an example of the First Defendant’s approach which was to find fault with the Claimant. Mr Fullwood refutes this allegation, but in any event notes that Mr Pritchard is not putting forward a bias or ill-motive challenge.

[18]Mr Pritchard referred to other reports which contained positive conclusions in relation to the Claimant’s care homes. For example, on 14 September 2011 Wirral Local Involvement Network, an independent network of individuals, community groups and organisations working together to shape the provision of local health and social care services, inspected the Home and subsequently issued a report that was very positive about the Home. Further, there were inspections of Byron Court and Rivington Park Nursing Care Home, two other homes owned by the Claimant, which contained positive conclusions.

[19]However the First Defendant has responsibility for regulating care homes. At paragraphs 20-24 of her witness statement Ms Devine refers to the Judgment Framework which aids inspectors in their application of the Guidance about Compliance Essential Standards for Quality and Safety. This document allows inspectors to benchmark their findings against guidance and to make a judgment on a service as to its level of compliance with the Regulations. It is not suggested that Ms Talbot, the Compliance Inspector, has acted contrary to the Guidance or the Judgment Framework. The Report contains very detailed findings which led to the conclusion that the Home was not meeting essential standards.

[20]In the Summary of Findings in the Report under the heading “What we found about the standards we reviewed and how well [the Home] was meeting them” 17 essential standards were found not to be met in respect of which the First Defendant proposed to take compliance action to address these concerns. The Report then sets out in detail the Inspectors’ findings in respect of each of these standards.

[21]In my judgment the challenge on Wednesbury grounds that has been put forward in this renewed application for permission to the decision of the First Defendant to promulgate and maintain the findings in the Report is totally unarguable.

The challenge to the Second Defendant’s decision

[22]The Claimant and the Second Defendant entered into a contract dated 27 April 2011 pursuant to which the Second Defendant placed residents at the Home for whom the Claimant provided services in accordance with Schedule 1 of the contract.

[23]By letter dated 4 July 2011 the Second Defendant informed the Claimant that following visits to the Home on 24 and 28 June 2011 which highlighted several areas of concern within the Home a decision had been made in accordance with the provisions of Clause 22 of the contract to suspend all further referrals to the Claimant until all concerns have been addressed and satisfactorily resolved.

[24]It is this decision of 4 July 2011 to suspend referrals of new residents to the Home that the Claimant challenges in this claim. Claims for judicial review must be brought promptly and in any event within three months of the date when the grounds of the claim first arose. The Claim Form was issued on 10 November 2011, nearly five weeks after the expiration of the time limit. No explanation has been put forward for the delay. Mr Pritchard submits that the claim is with merit and the Second Defendant is not prejudiced by the delay. For the reasons I set out below the claim is, in my view, totally without merit. The absence of prejudice, as Mr Browne, who appears for the Second Defendant, observes, is only one factor to be taken into account when considering whether to grant an extension of time. In my judgment there is no proper basis for granting an extension of time for bringing this claim. Accordingly I would refuse permission on this ground alone.

[25]Mr Browne submits that, in any event, the Claimant’s complaint is not justiciable by way of a public law challenge in judicial review. The challenge, he contends, is to action taken by the Second Defendant pursuant to its contract with the Claimant and lies in private law. Mr Browne submits that there is no public law element here (see Craig, Administrative Law (7th Edition) at para 27-022). However Mr Browne accepts that the Second Defendant entered into the contract pursuant to its powers under section 26 of the National Assistance Act 1948 (and the NHS and Community Care Act 1990) to sub-contract to the Claimant the provision of services that it would otherwise itself have to provide. Having regard to that legislative framework and Schedule 1 of the contract that requires the services to be provided in accordance with the requirements of the Health and Social Care Act 2008 (and Regulations made thereunder), it is in my view arguable that there is a sufficient public law element here so as to entitle the Claimant to bring a claim for judicial review of the decision about which complaint is made.

[26]I next turn to consider whether the claim is arguable. In my view it is not for the following reasons: i) The Second Defendant received a copy of the draft report. However the Second Defendant did not rely upon the findings in the report. Following the concerns identified by the First Defendant, the Second Defendant sent its own inspectors to the Home on 24 and 28 June 2011. The Second Defendant’s letter dated 4 July 2011 states:

“These visits have highlighted several areas of concern within the home which require your immediate attention i.e. • Staffing levels • Staff training • Staff supervisions • Care planning and reviews These concerns are in contravention of Regulation 9, Outcome 4; Regulation 22, Outcome 13 and Regulation 23, Outcome 14 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010, as contained in ‘Essential Standards of Quality and Safety’ published by the CQC in March 2010. Therefore, in accordance with the provisions of DEFAULT clause 22 of the Contract for the Provision of Residential or Nursing Care, a decision has now been made to suspend all further placements with your organisation until all concerns have been addressed and satisfactorily resolved.” ii) I accept Mr Browne’s submission that the Second Defendant exercised its own judgment as to whether the services at the Home were being provided in accordance with the contract. Notes that were prepared following the visit on 24 June 2011 state “Initial visit to ensure immediate safety of all residents following concerns identified by CQC”, and evidence that staffing levels at the Home were inadequate. iii) Enclosed with the letter of 4 July 2011 is an action plan which identifies the Second Defendant’s concerns and the Claimant was requested to respond to the action plan. By letters dated 12 and 15 July 2011 the Claimant’s solicitors raised queries to which the Second Defendant replied by letter dated 21 July 2011. In that letter Ms Noone, Head of Service, Integrated Communities and Wellbeing Branch, referred to “major failings” in the training of staff that became apparent during the visits and to “poor record keeping”

. The Claimant was given an extension of time for submission of the action plan that had been requested in the letter of 4 July.

[27]In his skeleton argument dated 9 May 2013 Mr Browne summarised the further visits conducted by the Second Defendant to the Home during the period 17 August to 11 October 2011 (before the issue of the Claim Form on 10 November 2011) as follows:

“2.13 Notwithstanding the opportunity given, a further visit by D2’s inspectors on 17 August 2011 revealed evidence of continuing unsatisfactory staffing levels particularly at night and at weekends, dehydration of residents, deficient care plans, inadequate staff training and malodorous rooms. 2.14 Further visits, on 29 and 30 September 2011 by D2’s inspectors indentified malodorous rooms, and bathroom, chaotic staffing rotas and deficient care plans. 2.15 Copies of those findings and the Notes prepared at these meetings were provided to the Claimant’s then solicitors. 2.16 On 11 October 2011 a visit was made to the Home by staff on behalf of the NHS. That inspection found dirty sinks, commodes not cleaned between use, soiled mattresses and other evidence of unsanitary conditions.”

Mr Pritchard did not take issue with this summary.

[28]However on 20 January 2012 Mr Price, Principal Manager, Market Management and Quality Assurance, of the Second Defendant wrote to the Claimant:

“Further to DASS Quality Assurance, Service Manager Julie Walker and Team Manager Roger Chesters recent inspection on Thursday 19 January 2012, I am now able to confirm that the temporary suspension of new business to your company has been lifted with effect from Friday 20 January 2012. (Details of follow up inspection findings of 19 January 2012 will be forwarded to you in due course).”

Mr Browne observes that when conditions at the Home changed materially for the better in January 2012 the Second Defendant was able to lift the suspension. That state of affairs appears to have continued until December 2012, when (following a monitoring inspection by DASS Quality Assurance officers in conjunction with NHS Wirral’s Quality Lead Nurse) Ms Jacqui Evans, Head of Safeguarding and Care Governance, of the Second Defendant wrote to Dr Matta advising him of serious concerns regarding the quality of care being provided within the Home. Once again in accordance with the provisions of DEFAULT clause 22 of the contract a decision was made to suspend all further placements with the Claimant until all concerns have been addressed and satisfactorily resolved. There is no challenge to that decision.

[29]In my judgment it is not arguable that the decision of the Second Defendant made on 4 July 2011 to suspend new referrals was disproportionate, Wednesbury unreasonable or otherwise unlawful.

[30]For completeness, finally I consider the Claimant’s claim that the Second Defendant has breached Article 1 of the First Protocol of the European Convention on Human Rights during the period of the suspension from 4 July 2011 until 19 January 2012. Mr Browne accepts that “possessions” in Article 1 is apt to embrace contractual rights as much as personal rights (Wilson v First County Trust Ltd (No.2)

[2004] 1 AC 816

, per Lord Nicholls at para 39). However Mr Browne relies on the statement by Lord Hope at para 106 that Article 1 “does not confer a right of property as such nor does it guarantee the content of any rights in property” and the statement of Lord Scott at para 168 that Article 1 “is directed to interference with existing possessions or property rights”. Mr Browne submits that the possibility of a flow of income in the future does not constitute a relevant possession for the purposes of Article 1; there was no guarantee that residents would be placed by the Second Defendant at the Home (see clause S.1.3.1). Further, Mr Browne submits, if there was an interference with the peaceable enjoyment of the Claimant with its possessions, the issue of the default notice was both justified and proportionate to ensure that the care and nursing needs of residents at the Home was ensured. In my view if there was such an interference, it was proportionate; however I would not have refused permission on this issue alone.

Conclusion

[31]For the reasons I have given these claims are not arguable and accordingly permission is refused.