AC-2024-LON-001142 - [2025] EWHC 2015 (Admin)

Before turning to consider the particular issues raised by the claimants, it is first necessary to identify how the grounds of claim have evolved. Ground 1 (as pleaded) was put as a Padfield challenge; that has now been treated as the third ground of claim, effectively as another label for the claimants’ irrationality arguments. Ground 2, the rationality challenge, has been divided into two parts, the first addressing process irrationality, the second outcome irrationality. Ground 3, which related to what is said to be the CQC’s unlawful failure to impose a condition, has been subsumed into the other grounds. More specifically, however, by their re-amended case, the claimants have identified five particular considerations on which they rely as demonstrating the irrationality of the CQC’s decision-making, both as to process and outcome. Under separate sub-headings - (1)Process irrationality and (2)Outcome irrationality - I have therefore considered each of the five matters identified by the claimants individually, before then standing back to consider the cumulative impact of these criticisms; I have then sought to address (3)The Padfield challenge.

In approaching the irrationality challenges at (1) and (2) and in considering the relevant standard of review, I am mindful of the context. As made clear by the Cass Review’s findings, and the evidence submitted on behalf of the claimants, those seeking to access the TDDI services in issue are often particularly vulnerable children. Although clinicians working in this area can have very different views as to the advisability of the hormone treatment, it has not been suggested to me that this is other than a life-changing course, and an extremely serious step for an adolescent, age 16-17, to take.

When assessing decisions taken in this context, I am willing to accept that a heightened standard of review is required.

That does not mean, however, that I should not exercise caution when urged to reach a conclusion that is contrary to the assessments and evaluative judgements of the CQC in this context. For the claimants it is suggested that, given the general regulatory nature of the CQC’s role, and the lack of particular sector expertise on the part of those carrying out the assessments (a point of criticism in the Dash review, and something the claimants say is true of the decision-making in issue), less deference is required than might otherwise be expected. I am, however, not persuaded that is the correct inference to draw, still less that it would be appropriate to do so in this case. The CQC’s expertise relates to its particular statutory functions. Whether or not its inspectors have a relevant sector specialism, their regulatory experience within health and social care, having particular regard to public safety, provides meaningful expertise when assessing a provider’s ability to comply with the requirements of the 2014 Regulations. When approaching the decisions under challenge in these proceedings, I do not disregard the expertise that those carrying out the assessments brought to their task.

Regardless of the degree of deference to be afforded to the CQC, the claimants have argued that only one outcome was rationally open to the CQC and/or would further the legislative requirements, namely that IP1’s registration ought to have been refused (in January 2024), alternatively withdrawn (in December 2024), alternatively that a condition was to be imposed such as to require IP1 to achieve procedural equivalence with the NHS (an on-going failure). I have not understood the claimants’ case in this regard to be put as high as to assert that, given that this was a private sector provider, operating outside the NHS, the impugned decisions would necessarily be irrational for that reason; but, to the extent that was the implication of the claimants’ argument, I would reject it: there is nothing in the legislative regime that would suggest this was Parliament’s intent, nor can it be inferred from the requirements of HSCA or the relevant secondary legislation. As for “procedural equivalence” with the NHS, the difference between the parties in this regard is one of degree. The CQC has stated that it looks to private providers to seek to emulate NHS standards, and, for its part, IP1 has said it has sought to ensure there is close alignment between the processes of the NHS and those it operates in partnership with Kelly Psychology. That there might not be a precise alignment was acknowledged by the Court of Appeal in O v P (see [39]), leading it to conclude that there might still be a requirement for the court to exercise its supervisory role in this context. The question posed by this case is as to whether any differences in process – even if in part arising from structural differences inherent in a private, rather than NHS, service – place the decisions reached by the CQC outside the range of reasonable responses open to it in these circumstances.