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

The standard of review applicable to a judicial review case varies “depending on the importance of the interests affected by it or, to put the point another way, the gravity of its potential consequences”; per Chamberlain J at paragraph [76] of R (KP) v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] EWHC 370 (Admin). As Lord Reed explained in R (King) v Secretary of State for Justice [2015] UKSC 54, [2016] AC 384, at paragraph [126]:

“126.

… the test of unreasonableness has to be applied with sensitivity to the context, including the nature of any interests engaged and the gravity of any adverse effects on those interests”.

Where a heightened standard of review exists, that has implications for the way the court evaluates both complaints of process and outcome irrationality; as Chamberlain J went on to explain in KP:

“77.

... In the former case [of process irrationality], the court will subject the decision to “more rigorous examination, to ensure that it is in no way flawed” (Bugdaycay, 531 [Bugdaycay v SSHD [1987] AC 514]). In this connection, the court will expect the decision-maker “to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account” (YH (Iraq), [24] [YH (Iraq) v SSHD [2010] EWCA Civ 116]). Where the complaint is of outcome irrationality, more will be required by way of justification (ex p. Smith, 554 [R v MoD ex p Smith [1996] QB 517]); ....”

In the present case, the claimants contend that the court’s approach must be to apply a heightened standard of review given that the decision-making in question concerns the provision of permanent and irreversible medical treatment to extremely vulnerable children. They seek to draw analogies with the approach in R (Rogers) v Swindon NHS Primary Care NHS Trust [2006] EWCA Civ 392, where a decision to refuse funding for medical treatment was subjected to “rigorous scrutiny” (see per Clarke MR at paragraph [56]), and with that in R (Hillingdon London Borough Council) v Lord Chancellor [2008] EWHC 2683 (Admin) per Dyson LJ at paragraph 67 (“... because the interests of vulnerable children are potentially at stake, the court should consider the issue of irrationality with anxious scrutiny”). For the CQC, it is observed that Rogers concerned “a life-or-death decision for the appellant”, in which it was argued Article 2 ECHR applied, and that the Hillingdon case could be seen as a case in which the human rights of children were at risk (see per Bennet J at paragraph [101]). Acknowledging, however, that the decisions in issue in the present proceedings could indirectly impact vulnerable children, the CQC contends that, even allowing for a heightened standard of review, in this context due respect would still need to be afforded to the expert regulator; as was observed in R (Seabrooke Manor Ltd) v CQC [2024] EWHC 2203 at paragraph [10]:

“… the court will always be cautious in overturning the good faith assessment and evaluative conclusions of an expert regulator. … particularly … where, as here, the regulator is operating in an area where public safety is of primary concern.”

The point being made on behalf of the CQC is that, even where the test is one of anxious scrutiny, because a heightened standard of review is required, in considering a complaint of outcome irrationality, the importance of a claimant’s interests is not the only relevant factor for the court to assess; as Chamberlain J observed in KP:

“78.

... The nature and importance of the public interests on the other side of the balance may also be important ...”

As was emphasised in R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010, a recognition that a case concerns an important right (or otherwise gives rise to a need for anxious scrutiny):

“155.

... does not answer the question about the extent to which a court, in the absence of any applicable statutory duties or statutory limitations on the decisionmaker, will recognise that the evaluative judgement involved is a matter for the decision-maker”.

That said, it is for the court to assess how broad the range of rational decisions is in the circumstances of any given case; as Lord Sumption made clear in Pham v Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 WLR 1591:

“107.

…That must necessarily depend on the significance of the right interfered with, the degree of interference involved, and notably the extent to which, even on a statutory appeal, the court is competent to reassess the balance which the decision-maker was called on to make given the subject-matter. ... In some cases, the range of rational decisions is so narrow as to determine the outcome.”