Using the law to recover the cost of care which the state fails to provide

by stevebroach

A recent case has shed some light on one of the most difficult problems that some disabled people and families may face – how to recover the cost of care which should have been provided by the state.

A typical scenario might go like this. An assessment shows that a disabled child or adult has eligible needs. There may even be a care plan put in place or other agreement on the services or funding required to meet those needs. Then nothing happens – and so the disabled person or their family is left paying for care which the state has accepted it ought to provide.

There are a number of options in this situation. For example, a complaint can be made through the local authority complaints process and ultimately to the local government or health Ombudsman, which could recommend compensation for maladministration. These recommendations are almost always followed by public bodies. Alternatively, if the local authority is asked to refund the monies and refuses, that decision could be challenged by way of judicial review on the usual public law grounds, including rationality and reasonableness. This is particularly likely to be appropriate where there are other ‘live’ issues with the care package. The sums involved would need to be significant to justify a stand-alone judicial review to recover past care costs.*

A recent case however shines a spotlight on a third option – an ordinary civil claim for ‘restitution’. The case in question is Richards v Worcestershire CC and South Worcestershire CCG and the judgment at [2016] EWHC 1954 (Ch) concerned the defendants’ application to ‘strike out’ the claim.

The value of the claim was significant, amounting to over £644,000. This reflected the costs of care for Mr Richards after his discharge from hospital in 2004. Mr Richards had been detained under the Mental Health Act 1983 and so was entitled to ‘after care’ support under section 117 of the 1983 Act. Importantly, the judgment records (at [18]) that Mr Richards was ‘not challenging the defendants’ assessment of his needs and or their decisions as to what after-care services should be provided. His case…is rather that the defendants failed to provide the services that they considered should be supplied’.

The Judge did not have to concern himself with the factual issues in Mr Richard’s case, because the defendants’ application was to strike the claim out on the basis that it was ‘not properly the subject of private law proceedings’ (at [20]). The first issue the Judge had to resolve was whether it was possible in principle for Mr Richards to bring a restitutionary claim. He decided this in Mr Richards favour, firstly on the basis that the 1983 Act did not exclude any such claim at common law. It would seem that the same analysis would apply to any of the other statutes which give rise to an entitlement to community care services, for example Care Act 2014.

The Judge also considered that Mr Richards may be able to make out a claim for unjust enrichment. The Judge recorded that ‘failure to perform a public law duty has never of itself been held to be an unjust factor for the purposes of a claim in unjust enrichment or a sufficient basis for any other restitutionary claim’ (see [36]). However it was seriously arguable that the defendants had been enriched at Mr Richards’ expense and no argument was put forward that Mr Richard’s case that the monies had been paid by ‘mistake’ could not succeed.

The second issue was whether Mr Richards was entitled to pursue an ordinary civil claim (under Part 7 of the Civil Procedure Rules) or if he needed to bring his claim by judicial review. In short, the Judge held that Mr Richards was entitled to bring a civil claim for the reasons set out at [50] in the judgment. This is potentially helpful in future cases as there is a much less strict time limit for ordinary civil claims than for judicial review.

The defendants’ application was dismissed and Mr Richards’ claim will now proceed to trial unless it now settles, which my uninformed guess says is likely.

In terms of the factors which would seem to be needed to mount a successful claim of this type, the first requirement would be a clear breach of statutory duty to provide support by the public body. It would seem unlikely that another breach of statutory duty, for example a failure to complete an assessment, would be sufficient, even if this led indirectly to expenditure on care. The claimant would then need to show the presence of an ‘unjust factor’ such as a mistake – or convince the court that the common law should be extended so that failure to perform a public law duty alone would be sufficient.

None of this is likely to be straightforward and disabled people and families will of course need specialist advice on the facts of their individual case. It may however be helpful to consider a civil claim as part of the set of legal options where a local authority or NHS body is simply refusing to cover the costs occasioned by a breach of one of their duties.

Thoughts on the above and / or examples (anonymised as appropriate) of how costs of care have been recovered in other cases are most welcome via the comments below.

*Moreover it is not possible to bring a claim for restitution alone via judicial review (see Civil Procedure Rules r 54.3(2)).

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