Council wins High Court private law claim against NHS clinical commissioning group over costs of care for young man with autism

A county council has successfully brought a private law claim in restitution against a clinical commissioning group ("CCG"), to recover sums paid by the local authority for the costs of accommodation and care of a young man with autism spectrum disorder.

JD was born in Surrey but accommodated in specialist autism care in Lincolnshire at the age of 17 years.

Surrey County Council's claim against Lincolnshire NHS CCG was originally to recover sums paid for JD's care and accommodation during the period 1 August 2008 to 31 January 2015 in the sum of £1,571,431.47 plus interest.

By the time of the hearing the council had accepted that by virtue of limitation, its claim was restricted to restitution of sums paid after 31 July 2013, amounting to £310,587.25 plus interest.

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In Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 Mrs Justice Thornton said it was common ground that the predecessor to the defendant, the Lincolnshire Primary Care Trust ("Lincolnshire PCT") made an error of public law in 2008 when it declined to assess whether JD was eligible for NHS care on the basis that, even if JD were eligible for such care, it was not responsible for commissioning services for JD. The public law error was repeated in 2010 when the PCT reaffirmed its earlier position.

The errors meant that Surrey continued to pay for JD's care in Lincolnshire until the defendant accepted responsibility, with effect from 1 February 2015.

Mrs Justice Thornton said: “It is also common ground that the claim in restitution is novel. It is a claim by one public body against another, in relation to care services provided to a third party, where both public bodies have distinct statutory caring responsibilities and where the basis of the claim is said to be an unlawful public law decision to refuse to accept responsibility for the care of the third party.”

On behalf of the council, it was said that a claim in restitution was established on the facts. Lincolnshire PCT accepted it had acted unlawfully in refusing to accept commissioning responsibility for JD and thereby declining to assess JD's eligibility for continuing NHS care. As a result, the council was left to fund the care of JD leaving the NHS Trust unjustly enriched.

On behalf of the CCG, the claim was said to be an entirely novel and unmeritorious private law claim. It was fundamentally misconceived, being a private law challenge to public law decisions by the NHS Trust. In any event, there could not be a viable claim in restitution because the PCT did not benefit from its public law error and the defence of change of position applied. Any money 'saved' on the costs of JD's care was spent on other patients and no money was retained by the PCT.

Mrs Justice Thornton said the parties were agreed on the issues which arose for consideration by the Court:

1) Was the council barred from advancing a private law claim given the public law issues which arose? If not;

2) Was any claim barred by reason of section 5 of the Limitation Act 1980 on the grounds that the cause of action accrued more than 6 years before proceedings were issued? If not:

3) Did the facts of this claim fall within an established category of restitution claims? If not, should the court permit the establishment of a new category of restitution claim? If so:

4) Were all the necessary elements of the cause of action of unjust enrichment made out on the facts of this case. In particular: was the PCT enriched? If so:

5) Was the defence of change of position available to the Defendant?

The High Court judge concluded, amongst other things, that:

  • There was no bar to the council pursuing a private law claim in restitution;
  • Limitation was a partial but not a complete defence and Surrey was not barred by limitation from seeking restitution of sums paid after 31 July 2013, amounting to £310,587.25 plus interest;
  • Surrey only found itself with statutory responsibility for JD's care because of Lincolnshire PCT's unlawful decision that it was not responsible for commissioning care services for JD and its consequent failure to assess JD's eligibility for continuing care. “This occurred in circumstances where the Court has found it highly likely that the PCT would have been responsible for JD's care had it not acted unlawfully. On this basis I consider that the council's legal obligations to JD during the relevant period are outweighed by the unjust factors at play in this case.”
  • Surrey discharged a liability to JD, which but for the PCT's unlawful decision, would have been owed by the PCT. In doing so the PCT was enriched to the extent of the cost of the care fees paid by the council to JD's care home. The PCT was freed to spend an equivalent sum on other patients. The fact that the money was spent on others would seem to give rise to a potential defence of change of position.
  • Lincolnshire NHS CCG had not discharged the evidential burden on it to establish the defence of change of position.

Mrs Justice Thornton therefore allowed the claim.

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