Richards v Worcestershire County Council (2017)

Keywords: s.117, private law claim, judicial review

This is the appeal from Richards (by his deputy and litigation friend Anne Minihane) v Worcestershire County Council and South Worcestershire CCG [2016] in which the court declined to strike out a private law claim for the funds expended by a Deputy on providing care for an individual who was entitled to s.117 after-care.

At first instance, Newey J had concluded that:

  • Where a public body has made a decision that an individual is eligible for something which it is required to provide under a statutory duty but fails to actually provide it; and
  • Where, as a result, the claimant has valid basis for a private law claim (e.g. unjust enrichment)

such a private law claim could proceed.

The grounds of appeal which were considered in this judgement were:

  1. That the claim should be struck out as contravening the exclusivity principle which sets out a general rule that a public law decision can only be challenged by means of judicial review (with the resulting time limits and other restrictions) and cannot be pursued via a private law action.

After a thorough review of the authorities, Rupert Jackson LJ set out general principles that:

  1. The exclusivity principle applies where the claimant is challenging a public law decision or action and either: his or her claim affects the public generally; or justice requires for some other reason that the claimant should proceed by way of judicial review.
  2. The exclusivity principle should be kept in its proper box. It should not become a general barrier to citizens bringing private law claims, in which the breach of a public law duty is but one ingredient.

Applying these principles to this case, Rupert Jackson LJ concluded:

“This is a private law claim, even though based upon section 117 of the 1983 Act. It has no wider public impact. Justice does not require for any other reason that the claimant should proceed by way of judicial review. If the exclusivity principle is allowed to block this claim, it will become an instrument of injustice.” (para.67).

He therefore dismissed the appeal on that ground.

The second ground of appeal was this:

  1. That a failure by the defendants to discharge their duty under section 117 of the 1983 Act did not give rise to any private law claim for unjust enrichment or restitution

It is clearly established that a patient who receives inadequate s.117 after-care services cannot claim damages for breach of statutory duty. However, Rupert Jackson LJ pointed out “The claimant’s case, however, is the opposite of that scenario.”. He had little hesitation in dismissing this ground of appeal because the claim was not even faintly based on a breach of the statutory duty itself but rather:

“The claimant’s claim is that he received adequate after-care services. Therefore the defendants must pay for them.”(para.80).

The issue was therefore a dispute as to the facts which should be decided at a hearing on the claim itself.

COMMENT

Now that the Court of Appeal has also refused to strike out the claim it seems inevitable that this case will proceed to a substantive hearing. In combination with the recent judgement in the Tinsley[1]case that responsible public bodies cannot decline to fund s.117 aftercare services even where the person has previously received personal injury damages to fund their care, Local Authorities and CCGs must begin to examine their historical decision-making around s.117 with greater care.

In this particular case, it remains to be seen whether the private law claim will be successful on the facts. The most contentious issues are likely to be:

  • Whose mistake led to the payment of aftercare costs from the claimant’s funds (rather than those of the Council and CCG, it being a joint duty). Does liability for this “unjust factor” lie with the claimant’s deputy or with the s.117 authorities?
  • Does the fact that the care actually provided may well have been more generous than the s.117 authorities would have provided or agreed to fund, affect the extent of any liability they may have?

 

Full text at: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1998.html

 

 

 

 

 

[1]R (Damien Tinsley (by his litigation friend and property and affairs deputy, Hugh Jones) v Manchester City Council and South Manchester Clinical Commissioning Group and LGA (Intervener) [2017])