CGT, R (on the application of) v West Sussex County Council

This is an application for judicial review in respect of the defendant local authority’s decision of 7 June 2024 to refuse to fund the claimant’s care needs from 6 July 2024 and to seek reimbursement of discretionary funding which had been provided since July 2020.

Permission was granted on paper by MacDonald J by an order sealed on 6 February 2025. MacDonald J also appointed the claimant’s father, SGT, as his litigation friend. By an order of 12 January 2026 I conferred anonymity on the claimant, his father, and his late mother, in view of his status as a protected person and the particular subject-matter of these proceedings.

The material factual background is not in dispute.

The claimant was born in 1994. At the age of around three months he suffered a brain injury resulting in a severe cognitive impairment, visual impairment, epilepsy, and other life-long difficulties. As a result he requires day-to-day care and support. He has lived in supported accommodation since 2013. The claimant lacks capacity to make his own financial decisions. His mother, RGT, was appointed as his property and financial affairs (PFA) Deputy by the Court of Protection (COP) in 2011.

In November 2012 the Criminal Injuries Compensation Authority (CICA) made an award of more than £3.5 million, on condition that it be paid into a discretionary trust of which the claimant is the sole beneficiary and the Official Solicitor (OS) is the sole trustee (the PI trust). The total award included more than £2.6 million in respect of future care costs. The Form of Acceptance stated, in respect of that sub-award, that it was:

“… dependent on my giving the following undertaking and so is in the best interests of [CGT] as defined by section I (5) of the Mental Capacity Act 2005

The undertaking sought by the Criminal Injuries Compensation Authority is that:-

(1)

I, Official Solicitor shall notify the Office of the Public Guardian of the outcome of the Applicant’s application for Criminal Injuries Compensation and supply him with a copy of the decision of the First Tier Tribunal (the successor to the Criminal Injuries Compensation Board under the 1990 Criminal Injuries Compensation Scheme); and

(2)

I, Official Solicitor shall seek from the Court of Protection a limit to the authority of the Deputy whereby no application for public funding of [CGT’s] care under section 21 of the National Assistance Act 1948 can be made unless it is in his best interests either because the funds provided by the Criminal Injuries Compensation Authority for his future care no longer provide for his reasonable care needs or because the restriction is contrary to his best interests for some other reason.

(3)

Before making any application for public funding of [CGT’s] care under section 21 of the National Assistance Act 1948 I, [RGT] (Deputy) shall seek a declaration from the Court of Protection that such an application is in his best interests either because the funds provided by the Criminal Injuries Compensation Authority for his future care no longer provides for his reasonable care needs or because the restriction is contrary to his best interests for some other reason and shall not make the application unless the Court of Protection provides such a declaration.

(4)

I, [RGT] (Deputy) shall notify the Criminal Injuries Compensation Authority of any application to seek such a declaration from the Court of Protection or to otherwise vary this undertaking and/or any order consequent upon it. I will not object to the Criminal Injuries Compensation Authority making submissions to the Court of Protection in respect of any such application.”

The Form of Acceptance was signed for the OS, and by RGT, in November 2012. I will refer to the undertakings from them that it contained, together as the 2012 CICA undertakings.

In May 2013 RGT died. Whether or not any step had yet been taken to seek an order of the COP restricting the authority of RGT, as envisaged by the 2012 CICA undertakings, certainly no such order had been made.

In April 2014 the COP appointed the claimant’s father, SGT, as his PFA Deputy in place of RGT. That appointment did not include any restriction on SGT’s ability to seek public funding for the claimant’s care needs. SGT has never given any undertaking in that regard.

In December 2017 SGT’s solicitors asked the defendant to carry out a care needs assessment for the claimant. Following correspondence, they wrote again in August 2019 renewing that request and asking that the defendant make contributions towards the costs of the claimant’s residential care placement. In October 2019 the defendant wrote to the Office of the Public Guardian (OPG) challenging that request in view of the 2012 CICA undertakings. In February 2020 the OPG replied that SGT was acting in the claimant’s best interests by applying, on legal advice, for public funding, and that the OPG would not be taking any action.

On 16 June 2020 the defendant wrote to SGT’s solicitors maintaining that the claimant’s care needs should be met from the PI trust, and indicating that it would be making an application to the COP for a restriction along the lines envisaged in the 2012 CICA undertakings. However, it proposed, in the meantime, to begin to meet the claimant’s needs, from 6 July 2020, without prejudice to the outcome of that application. It began to make payments from around that date, exercising discretionary powers, direct to the care home provider, and without carrying out any formal financial assessment.

On 5 October 2023 the defendant applied to the COP seeking to have the terms of SGT’s Deputyship varied, to introduce a condition in respect of any application for public funding of the claimant’s care needs, along the lines envisaged in the 2012 CICA undertakings. On 27 October 2023 the COP dismissed that application and awarded costs against the defendant.

On 7 June 2024 the defendant wrote to SGT’s solicitors the letter which is the principal subject of these proceedings (the Decision Letter), in the following terms:

“Following the Local Authority’s application to the [CoP] and guidance from the [OPG], I write to set out the Local Authority’s position in respect of the funding of [CGT’s] care needs. The Local Authority maintains that [CGT’s] needs should be met from his trust fund, as envisaged when the CICA award was made.

On 16 June 2020 the Local Authority wrote to you and explained that it would fund such care needs on a without prejudice basis. Such funding has been in provide since 6 July 2020. [CGT’s] original trustee and Deputy gave an express undertaking that she would not apply for public funding to assist with [CGT’s] care needs. Care cost compensation was included in the CICA award relying on that undertaking.

Since 2012 both the relevant legislation dealing with social care costs has changed, from the National Assistance Act 1948 to Care Act 2014, and the identity of the Deputy has changed. Regardless of whether [CGT’s] current Deputy is bound by the earlier undertakings and whether these undertakings would apply to replacement legislation, the effect of WSCC paying [CGT’s] assessed care need costs is that there is double recovery.

[CGT] was given a compensation package that included future care need costs. That fund has not been exhausted and, despite the undertaking given, [CGT’s] Deputy has applied for local authority funding of assessed care costs. Where the Deputy has not repaid CICA there is double recovery.

In this case both sources of funds have been from the public purse.

In the case law, including Tinsley, the court has emphasised that it will prevent double recovery. Consequently, WSCC gives the Deputy notice that it will cease to pay [CGT’s] assessed care need costs on 5 July 2024 with the expectation that these costs will thereafter (from 6 July) be paid from the trust fund.

WSCC gives notice that it requires [CGT’s] Deputy to repay care need costs paid between 6 July 2020 and 5 July 2024 totalling £271,253.44. With a view to a speedy resolution, WSCC is willing to forego interest on this sum. However if repayment is not made by 7 September 2024, a demand for interest will also be pursued.”

Following pre-action correspondence these proceedings were begun.

The relevant legislation which applied at the time of the Decision Letter, and which continues to apply, is the Care Act 2014. Unless otherwise stated, references to sections in what follows are to sections of the 2014 Act.

Where it appears that an adult resident has care needs, the local authority has a duty under s.9 to assess those needs. If their needs meet the eligibility criteria pursuant to s.13, then s.18 requires the authority to fund them in full if the individual’s resources are below the lower capital limit. Where it is considering making a charge, s.17 requires the local authority to carry out a financial assessment, and, having done so, to provide a written record to the adult to whom it relates. It also provides that regulations must make provision for calculating income and capital, and may make various other kinds of provision. S.18 provides that a local authority “must act” in accordance with general guidance issued by the Secretary of State.

The Care and Support (Charging and Assessment of Resources) Regulations 2014/2672 were made in exercise of powers conferred by the 2014 Act. They make provision that the authority need not carry out an assessment, if the adult consents to it not doing so. Reg.18(2) provides that any capital, where applicable, specified in sch.2 is to be disregarded. Sch.2, headed “Capital to be disregarded”, provides at paras.15 and 16:

“15 Any amount which would be disregarded under paragraph 12 of Schedule 10 to the Income Support Regulations (personal injury trusts).”

“16 Any amount which would be disregarded under paragraph 12A of Schedule 10 to the Income Support Regulations (personal injury payments) with the exception of any payment or any part of any payment that has been specifically identified by a court to deal with the cost of providing care.”

The reference to the Income Support Regulations is to the Income Support (General) Regulations 1987/1967. Paras.12 and 12A(1) of sch.10 of the 1987 Regulations (as amended) provide for the following capital items to be disregarded for the purposes of those Regulations:

“12.

Where the funds of a trust are derived from a payment made in consequence of any personal injury to the claimant or the claimant’s partner, the value of the trust fund and the value of the right to receive any payment under that trust.”

“12A(1) Any payment made to the claimant or the claimant’s partner in consequence of any personal injury to the claimant or, as the case may be, the claimant’s partner.”

Reg.12A then provides for qualifications to sub-reg.(1) which I do not need to set out.

Guidance issued pursuant to s.78 sets out in an annexe at [33] the capital assets which “must” be disregard, including, at (h):

“the value of funds held in trust or administered by a court which derive from a payment for personal injury to the person. For example, the vaccine damage and criminal injuries compensation funds.”

As I have set out, the 2012 CICA undertakings referred to the predecessor of the 2014 Act, the National Assistance Act 1948. S.21 of that Act imposed a duty on local authorities to provide care in the form of residential accommodation. For the purposes of that duty the National Assistance (Assessment of Resources) Regulations 1992/2977, sch.4 para.10, provided for a capital disregard in respect of “[a]ny amount which would be disregarded under paragraph 12 of Schedule 10 to the Income Support Regulations (personal injury trusts).”

Ground 1 of this application is, in short, to the effect that the defendant acted unlawfully because its decision was contrary to the express terms of para.15 of sch.2 of the 2014 Regulations, and to the Guidance. Ground 2 contends that the defendant did not provide adequate or intelligible reasons for its decision. Ground 3 goes hand in hand with ground 1. It contends that the defendant wrongly took into account the 2012 CICA undertakings, despite them not being binding on SGT, and despite the COP having refused the defendant’s request to amend the terms of his appointment. Ground 4 contends that the defendant has failed, as required by the 2014 Act, to carry out a needs assessment and provide a written record of it.

The defendant does not dispute that in this case the basic conditions in s.18 were met, and that, if the PI trust fell to be wholly ignored, then the claimant’s capital resources were below the lower limit. However, there are, in summary, two planks to its defence to ground 1.

First, it contends that the 2014 Regulations should be interpreted as meaning that, in assessing the claimant’s capital resources, the funds available in the PI trust, that had been identified as relating to care costs, should not be ignored. It asserts in its Grounds of Resistance that its decision “accords with a purposive approach to interpreting paragraphs 15 and 16” of Sch.2, and that para.15 “should be read to align with paragraph 16 and exclude from the disregard of capital any payment that has been specifically identified to deal with the cost of providing care.” Alternatively, these provisions should be “read through the prism of public policy” to prevent the claimant from benefiting from the current Deputy resiling from the agreement reached when the award was given.

Secondly, alternatively, the defendant contends that there is a positive duty on the court to prevent double recovery from occurring. Its Defence asserts: “It would be unconscionable to quash the Decision and the court should exercise its discretion not to grant relief.”

I was referred to a number of authorities concerned with this general topic, some of which themselves contain detailed analysis of prior authorities. For the purposes of what I have to decide, it is sufficient to focus on the following decisions.

In Peters, as the result of the health authority’s failure to cause her mother to receive a rubella vaccination, the claimant was born with congenital rubella syndrome. Liability for negligence was admitted but quantum was at issue. The COP had appointed a Receiver, Mrs Miles, to manage the claimant’s property and affairs. At the time of the High Court’s decision she was aged 19 and living in a private care home.

The health authority had joined the local authority as a CPR part 20 defendant. It sought a declaration that the local authority was obliged to fund the claimant’s care under s.21 of the 1948 Act and that the damages award against it should not include a sum in that respect. The local authority maintained that it should be able to look to the claimant to contribute to the cost of her care out of her damages. The claimant sought full compensation in respect of her care from the health authority, so that she should not be dependent on public provision.

Butterfield J concluded, applying the reasoning in Firth v Geo Ackroyd Junior Ltd [2001] PIQR Q4 27, that the plain effect of the applicable regulations was that in assessing capital for the purposes of local authority funding the whole amount of any award made by him in the present proceedings must be disregarded. The applicable disregard of an award of “damages for personal injury” administered by the Court or the COP could not be construed as restricted to damages in respect of pain, suffering and loss of amenity [38]. As the claimant had no other capital, the local authority would be obliged to fund her care costs in full.

Further on, the judge considered a submission from the health authority that the claimant had a duty to mitigate her loss by looking to the local authority to provide accommodation. He considered that the question was not one of mitigation but, rather, as to who should pay for it. In any event it was reasonable for the claimant not to rely on the statutory obligation of the local authority when the alternative of recovery from the health authority was available to her [75].

Under the heading “double recovery” the judge said:

“76.

It is of course trite law that the claimant cannot recover twice for the same loss. Those representing the claimant were well aware of this potential problem. They sought to overcome it by offering to the court, through Mrs Miles the Deputy, an undertaking. She gave evidence that she was prepared to give an undertaking as Deputy not to seek statutory funding for C's care, such undertaking to be qualified on whatever terms were appropriate. But when that proposition was explored it became apparent that it was fraught with difficulty. Mrs Miles had not identified the terms of any qualification to the undertaking, such as the circumstances in which she might be released from it, nor was she even sure that her terms of appointment as Deputy entitled her to offer it. She further accepted that any undertaking she gave would be personal to her and that she could not bind her successors. It was later suggested on behalf of the claimant that a suitable undertaking would be "not to make any claim for public funding of the care of the claimant under section 21 of the National Assistance Act 1948 or any equivalent subsequent legislation without leave of the Court or the Court of Protection."

77.

I am far from satisfied that there is any proper legal basis for Mrs Miles to give the undertaking she offers, and it would certainly not bind her successors. In any event I regard any such undertaking as impractical and undesirable. It cannot be right to devise an undertaking dealing with the circumstances in which a gravely disabled person is or is not permitted to avail herself of assistance offered by the Local Authority even with the caveat proposed.

78.

On the other hand, I have the evidence of Mrs Miles, which I unhesitatingly accept, that she, the Deputy in effective control of the management of C's financial affairs, is very much of the view that C's future care should be privately funded. In those circumstances I find that, providing the court orders that the tortfeasors meet the cost of future care, Mrs Miles will not require the Local Authority to provide the claimant with care under its statutory obligations in the future, at any rate in the absence of some wholly unexpected development which compels hers to abandon her stated intention to rely on private funding. I am further confident that I can rely on any future Deputy taking precisely the same view. Such successor will be appointed by the Court of Protection and will unquestionably be a person of probity and integrity entirely fitted to be trusted not to abuse their position.

79.

In those circumstances no question of double recovery arises. The claimant will recover her loss from the tortfeasors instead of recovering from the Local Authority, not as well as recovering from them.”

The judge gave permission to appeal. The judgment of the Court of Appeal was given by Dyson LJ. On the point of construction of the relevant regulation the court agreed with the judge below and the reasoning in Firth. It said:

“30.

The phrase "an award of damages for a personal injury" is clear, unambiguous and unqualified. We find it impossible to construe it as referring only to some heads of an award of damages for personal injury. We can see no basis for construing the phrase as referring only to general damages for pain, suffering and loss of amenity to the exclusion of other heads of loss, such as damages for loss of earnings. Of course, we can see the good sense and fairness of excluding from the disregard provision any sum awarded by a court in respect of the cost of providing accommodation and care. Such an exclusion is to be found in para 10A of Schedule 4 to the NAARR. But it is impossible to construe para 44(2)(a) of Schedule 10 to the ISR as importing such an exclusion.

31.

It is of some significance that, in para 10A of Schedule 4 (in relation to any payment made to a claimant or a claimant's partner "in consequence of" of a personal injury), Parliament decided expressly to exclude from the disregard any payment "specifically identified by a court to deal with the cost of providing care". It is a reasonable inference that Parliament considered that, but for such express exclusion, the whole of the damages awarded in consequence of a personal injury would fall to be disregarded. In our judgment, the express exclusion in para 10A fortifies the conclusion that we have reached as to the true meaning of para 44(2)(a) of Schedule 10 to the ISR. This conclusion accords with [18] of the decision of Mr Commissioner Rowland in R(IS) 15/96.”

The court then considered whether the claimant was entitled to choose damages rather than local authority provision. The court noted first that this issue was not about the duty to mitigate. Following an extensive review of the prior authorities it concluded at [53]:

“Having reviewed these authorities, we can now express our conclusion on this issue. We can see no reason in policy or principle which requires us to hold that a claimant who wishes to opt for self-funding and damages in preference to reliance on the statutory obligations of a public authority should not be entitled to do so as a matter of right. The claimant has suffered loss which has been caused by the wrongdoing of the defendants. She is entitled to have that loss made good, so far as this is possible, by the provision of accommodation and care. There is no dispute as to what that should be and the Council currently arranges for its provision at The Spinnies. The only issue is whether the defendant wrongdoers or the Council and the PCT should pay for it in the future.”

But it added at [56]:

“In our judgment, therefore, provided that there was no real risk of double recovery, the judge was right to hold that there was no reason in principle why the claimant should give up her right to damages to meet her wish to pay for her care needs herself rather than to become dependent on the State. The judge was right to be concerned about the possibility of double recovery to which we now turn.”

On the subject of double recovery the court repeated the judge’s observation that it is trite law that the claimant cannot recover twice for the same loss. After considering how the judge resolved the problem and, further discussion, the court continued:

“62.

If it had been necessary to do so, we would have held that the judge was entitled to take the view that the possibility of double recovery was effectively eliminated by his finding that, if the tortfeasors paid the care and accommodation costs, Mrs Miles and her successor(s) would not require the Council to discharge its statutory duty under section 21 of the NAA "in the absence of some wholly unexpected development which compels her to abandon her stated intention to rely on private funding". Such a finding was made in Freeman v Lockett [2006] EWHC 102 (QB), [2006] PIQR P23 and was said in Crofton at [92] to be a proper finding to make. We can see, however, that this is not an entirely satisfactory way of dealing with the possibility of double recovery. Take the present case. For example, what would happen if (contrary to the judge's expectation), Mrs Miles or her successor(s) did seek provision of care and accommodation from the Council in circumstances which were not "wholly unexpected"? What is a "wholly unexpected development"? Who would be the judge of whether a wholly unexpected development had occurred? It is not at all obvious how this would be policed and what right of recourse, if any, the defendants would have if Mrs Miles or her successor(s) did seek provision from the Council in circumstances which were not "wholly unexpected".

63.

But during the course of argument in this court, it became clear that there is an effective way of policing the matter and controlling any future application by Mrs Miles for the provision of care and accommodation by the Council. It can be achieved by amending the terms of the court order pursuant to which she is acting. The Court of Protection Order made on 28 January 2006 sets out in considerable detail the scope of her authority. Paragraph 6 of the order provides that the Receiver (now Deputy) is not authorised to do any of the acts or things stated in subparagraphs (a) to (p) "unless expressly authorised to do so by the court by further order, direction or authority".

64.

Mrs Miles has offered an undertaking to this court in her capacity as Deputy for the claimant that she would (i) notify the senior judge of the Court of Protection of the outcome of these proceedings and supply to him copies of the judgment of this court and that of Butterfield J; and (ii) seek from the Court of Protection (a) a limit on the authority of the claimant's Deputy whereby no application for public funding of the claimant's care under section 21 of the NAA can be made without further order, direction or authority from the Court of Protection and (b) provision for the defendants to be notified of any application to obtain authority to apply for public finding of the claimant's care under section 21 of the NAA and be given the opportunity to make representations in relation thereto.

65.

In our judgment, this is an effective way of dealing with the risk of double recovery in cases where the affairs of the claimant are being administered by the Court of Protection. It places the control over the Deputy's ability to make an application for the provision of a claimant's care and accommodation at public expense in the hands of a court. If a Deputy wishes to apply for public provision even where damages have been awarded on the basis that no public provision will be sought, the requirement that the defendant is to be notified of any such application will enable a defendant who wishes to do so to seek to persuade that the Court of Protection should not allow the application to be made because it is unnecessary and contrary to the intendment of the assessment of damages. The court accordingly accepts the undertaking that has been offered.

66.

In these circumstances, we do not see the risk of double recovery as a reason for rejecting the judge's decision to award the claimant the full cost of care and accommodation. We therefore uphold his conclusion on the second issue. In these circumstances, it is not strictly necessary to decide the third issue. But we propose to do so in case our conclusion on the second issue is wrong and, in any event, because it was the subject of full argument before us.”

The Court of Appeal also concluded that the judge had been right to conclude that it was reasonable for the claimant to opt for self-funding and damages rather than seek provision of care and accommodation at public expense.

In this case injuries sustained when a car hit the claimant’s bike caused a personality disorder, leading to him being detained under the Mental Health Act 1983. After discharge his nursing home care was funded by the local authority under s.117 of that Act. He also brought a personal injury claim against the driver of the car, who admitted 90% liability. An award of damages was then made including a sum for future care. The judge rejected a contention that he should not make such an award in view of the local authority’s s.117 duty to provide accommodation. After a spell in private accommodation which he funded from his award, the claimant looked again to the local authority under s.117. It refused to provide him with support on the basis that he could fund himself from his personal injury damages. The Administrative Court decided that the local authority’s stance was unlawful. The local authority appealed.

In the Court of Appeal, the only reasoned judgment was given by Longmore LJ, the Master of the Rolls and Irwin LJ concurring.

Longmore LJ noted that care provision pursuant s.117 of the 1983 Act amounts to a form of health care and is not means tested. In the course of considering the local authority’s submissions he said:

“11.

Manchester submits that the mere fact that an obligation is imposed on it by s.117 to provide after-care services to persons compulsorily detained pursuant to section 3 of the Act does not require it to provide, or arrange for the provision of, such services if a claimant has funds available for that purpose provided by a tortfeasor. Manchester accepts that the fact that a claimant is personally wealthy would not justify a refusal to provide the services; it is the fact that money has become available from the tortfeasor that is said to make all the difference.

12.

This is an impossible argument. As Ms Richards pointed out, a refusal to pay for such services is effectively the same as providing such services but charging for them. The House of Lords has made it clear in Stennett that charging persons such as the claimant is impermissible. Manchester is effectively seeking, in the teeth of the express obligation to provide s.117 services, to recover by the back door what it cannot recover by the front.

13.

Manchester's argument apparently extends to cases where funds are provided for after-care by any third party, not just by a tortfeasor. But to deny the right to after-care services in cases where funds have been provided by voluntary donation would be against all reason. Nor does Manchester's argument cater for a situation where a case settles (with or without a discount for contributory negligence) for a global unapportioned sum – as happens with great frequency.

14.

Manchester's submission is, moreover, as Mr Harrop-Griffiths recognised, contrary to the decision of this court in Crofton v NHSLA on which he sought to rely for his submissions about double recovery. It is true that in that case (which was not a s.117 case) the court was concerned to avoid, at the point of awarding damages against a negligent health authority, the position where a claimant recovered damages from the tortfeasor but would, in fact, rely on the local authority to provide for his care needs. But in order to determine that question it was first necessary to decide (as a "threshold question") whether, in a case where the claimant is awarded substantial personal injury damages, the local authority could be satisfied, pursuant to section 2 of the Chronically Sick and Disabled Persons Act 1970 ("the 1970 Act"), that it was unnecessary to make arrangements to meet the claimant's needs at all. A second question would then arise whether, if the local authority could be so satisfied, it could have regard to the damages awarded in deciding how the care services should be provided.

15.

Although the claim was brought pursuant to the provisions of section 29 of the National Assistance Act 1948 and section 2 of the 1970 Act (relating to services other than accommodation), the position under s.117 of the 1983 Act is not materially different. This court held (paras 63 and 66-67) that under the relevant charging provisions a capital sum represented by an award of damages for personal injuries which was administered by the Court of Protection could not be taken into account by a local authority. Relevantly for the present case this is now confirmed by regulation 18 and paragraph 25 of Schedule 2 to the 2014 Regulations as referred to above. The court then held that such an award could not be taken into account at the threshold stage either. It gave six reasons including (para 66) that "a system which requires personal injury damages to be taken into account at the threshold stage but disregarded at the means test stage makes little sense". At para 72 it concluded that in deciding the threshold question personal injury damages administered by the Court of Protection had to be disregarded. It follows that, if an application is made to a local authority for after-care services in general, it cannot take into account, when considering that application, the fact that a claimant has been awarded personal injury damages which are being administered by the Court of Protection.

16.

It would be in the highest degree anomalous if such damages had to be disregarded for mentally ill patients who had not been compulsorily admitted to hospital but had to be taken into account for patients who had been compulsorily admitted.”

At [20] - [24] Longmore LJ considered an argument, drawing on a passage in Bennion on Statutory Interpretation, that s.117 should not be construed in a way that would be adverse to the public interest and not further the ends of justice, as it would potentially lead to double recovery and unnecessary depletion of scarce public funds. Reliance was placed on the decision in Welwyn Hatfield BC v Secretary of State for Communities and Local Government [2011] UKSC 15; [2011] 2 AC 304. He rejected that argument. I will consider Welwyn Hatfield, and Longmore LJ’s observations on this line of argument, later on.

Longmore LJ then discussed double recovery, beginning, at [26]:

“It is, of course, the case that courts will seek to avoid double recovery by a claimant at the time they assess damages against a negligent tortfeasor. If therefore it is clear at trial that a claimant will seek to rely on a local authority's provision of after-care services, he will not be able to recover the cost of providing such after-care services from the tortfeasor. Crofton is itself authority for that proposition. It does not follow from this that, if a claimant is awarded damages for his after-care he is thereafter precluded from making application to the local authority. Mr Harrop-Griffiths appeared to accept that, if Mr Tinsley's funds had indeed run out, then Manchester would have to provide after-care services, although such provision might well not be a continuation of his present standard of after-care services or be as generous as Mr Tinsley or his deputy might wish. It seems to be Manchester's position that they need to be satisfied that Mr Tinsley's funds have indeed run out (or are about to run out). But there also seems to be some concern that Mr Tinsley's funds may have been mismanaged. The question is whether those concerns entitled Manchester to refuse to consider Mr Tinsley's application at all. If Ms Richards' submissions are correct, Mr Tinsley could have required Manchester to consider his application at any time after Leveson J had given judgment in his favour. No doubt if a claimant were to do that just after judgment, the truth of his evidence that he intended to make private arrangements for his after-care could be called into question and the case against the tortfeasor might be able to be re-opened. But short of such an extreme case, is the local authority to be liable even if an applicant has funds still available from his award?”

Longmore LJ then reviewed the decisions in Peters in the High Court and Court of Appeal. At [30] he inferred that the appeal in that case had been dismissed on the footing that the undertakings envisaged by the Court of Appeal were given and no doubt complied with. Counsel for the local authority in the instance case submitted, relying on Peters, that no claim could be made against it “unless it is shown that Mr Tinsley’s funds are about to run out.”

Longmore LJ continued:

“31.

Four initial comments may be made about Peters. First, the court's judgment on this point was obiter, since they upheld Butterfield J's finding of fact that there was no risk of double recovery, prefacing their remarks with the words "If it were necessary to do so". Secondly the court did not consider the position under section 117 of the 1983 Act but only the position under the 1948 Act where the words "otherwise available" were of critical importance. Thirdly the undertakings were taken by the court at the time of the award of damages in order to ensure that the tortfeasor was not subjected to the risk that the claimant would make a double recovery against both it and the local authority. The undertakings were not inserted to protect the local authority but the tortfeasor. Fourthly, there does not appear to have been any argument addressed to the court similar to that made by Ms Richards in this case, to the effect that there is a right on the part of the claimant, after an award has been made, to look to the local authority if he or she prefers to do so. On the different wording of the 1948 Act any such argument might be debateable but it was never made.

32.

More broadly, however, I doubt if it can be right, by requiring the deputy to give undertakings of the sort proffered by Mrs Miles, to transfer the burden of deciding whether a claimant is entitled to claim local authority provision to the Court of Protection. That court looks after the interests of its patients and is not (usually) required to decide substantive rights against third parties. Indeed it could be said that to decide that a local authority is not obliged to provide after-care services would not be to promote the interests of the patient.

33.

It is noteworthy that in the one decision of the Court of Protection to which we were referred (Re Reeves of 5^th January 2010), Judge Lush also thought that the matter should be decided by the Administrative Court rather than by him. If it is the law that a section 117 claimant can only claim against a local authority for after-care services once any award for such services against a tortfeasor has been (or is about to be) exhausted, it is for the Administrative Court to say so. For the reasons I have given I do not believe that is the law and the Administrative Court came to the correct conclusion in this case.

34.

One understands that local authorities are concerned about the potential implications of the Administrative Court's decision especially since Schedule 4 to the Care Act 2014 applies sections 31 and 32 of that Act to the provision of after-care services, so that direct payments can be made instead, to those who have capacity to ask for them and to an authorised person on their behalf if they do not. That concern may, however, be overstated. Few claimants who have been awarded the costs of private care will voluntarily seek local authority care while the funds for private care still exist. If they ask for direct payments, the provisions of the Care Act will have to be considered. Any argument about such provisions is for another day.”

The appeal was dismissed.

In this case the claimant suffered catastrophic injuries in an accident in which she was a passenger in a car driven by the defendant. In an initial judgment HHJ Robinson, sitting as a judge of the High Court, found the defendant to be liable. Subsequently the parties agreed settlement on the headline basis of a lump sum of £6.25m and annual periodic payments in respect of care and case management, starting at £325,000 and thereafter index linked.

However, an outstanding issue fell to be determined by the court. This was described as arising as follows. The lump sum would be placed in a trust. It would be left out of account when determining the claimant’s entitlement to state funding for care. The same was true of the annual periodic payments (PPs). But it could not be ruled out that the claimant might apply for state funding in the future. It was agreed that “to deal with this issue” she would undertake not to apply for state funding in any given year until the annual PP in that year had been used up. She also agreed that, if she applied for “top-up” funding from the state, but did not fully utilise the top up in a given year, she would repay the excess. The issue for adjudication concerned the position if the PP proved, in a given year, to be more than required for the claimant’s care in that year. The claimant contended that she should be free to use the surplus as she pleased. The defendant contended that it should be carried forward, to add to the PP provided by it in the next year, so that she would only look to the state for “top up” in the event that the cumulative carried forward total was not sufficient to cover that next year’s care costs. This running account approach would continue to carry forward from one year to the next.

The judge reviewed a number of authorities which has sought to address the issue of double recovery in various ways, including Peters and Tinsley. He also referred to CCC v Sheffield Teaching Hospitals [2023] EWHC 1770 (KB) which he described as an example of “a repayment mechanism.” In that case the claimant was in receipt of direct payments from the NHS. At [29] HHJ Robinson cited the following passage from the judgment in CCC:

“[180] The sums received by the Claimant from the State for care by way of direct payments should be refunded to the Defendant annually on the day in December when the first PPO is made and annually thereafter. Otherwise the Claimant will receive more than she needs. I invite the Claimant to provide an undertaking to the court to refund the total sum received from the state for care on that date each year (a limited Peters Promise). I invite counsel to draft the undertaking. If the undertaking is not provided, I shall reconsider how best to account for the deduction simply by deducting the current annual payment. That would not take into account future changes and so would be rough and ready.”

HHJ Robinson concluded his survey:

“30.

Having regard to the authorities to which my attention has been drawn, I accept the analysis of Mr Todd in his skeleton argument that what he refers to as "the primary solution" to the double recovery problem is to reduce damages to reflect likely receipt of public funding in the future. Of course, that requires there to be evidence upon which the Judge can make a finding on the balance of probabilities that such receipt is, indeed, "likely". Conversely, it may be possible to make a finding that such recourse is "unlikely". That was the position in Freeman v Lockett [2006] EWHC 102 (QB), relied upon by Mr Todd. In that case the Claimant had full capacity and recovered damages in full. Tomlinson J was able to find on the evidence that on receipt of damages for future care the Claimant would withdraw her application for state funding and would not reinstate it, thus no issue of double recovery arose.

31.

In summary, the cases show that the common mechanisms to avoid double recovery are:

(1)

Reducing the once and for all lump sum.

(2)

Providing a mechanism for repayment to the provider of state funding.

(3)

Providing a mechanism designed to inhibit a claim for statutory funding, at least without some court oversight.”

At [38] the judge observed:

“I accept the submission of Mr Todd that the authorities show that the Court should be alert to double recovery; also that the Court should not just deprecate double recovery where it arises, but should actively intervene to prevent it.”

The judge went on to identify a host of problems with the running-account approach, and to reject it.

This was a decision of the HHJ Carolyn Hilder, Senior Judge of the Court of Protection. The judge began by explaining how the matter had come before her:

“1.

On 7^th May 2009 an order was made in the Queen's Bench Division of the High Court approving settlement of a damages claim brought on behalf of BJB, on terms which included:

a.

reverse indemnity undertakings, whereby 98% of sums received by BJB in state provision are to be deducted from her periodical payments; and

b.

provision for release from the reverse indemnity undertakings by the Master of the Court of Protection or his successors, if that person is satisfied that BJB does not have sufficient resources to meet her reasonable needs.

2.

BJB's property and affairs deputy has made an application to the Court of Protection for release from the reverse indemnity undertakings. That application is opposed by the Hospital Trust which was the Defendant to the damages claim, and by NHS Resolution which is the NHS Litigation Authority, an arms' length body of the Department of Health and Social Care.”

The claimant had sustained a hypoxic brain injury at birth causing dystonic cerebral palsy. She was in independent living arrangements with a team of paid carers. Barnsley MBC had assessed her as requiring 24-hour care in 2022, and was funding direct payments. Ms Knight had been appointed as receiver in 2005 and Property and Affairs Deputy in 2007.

A damages claim had begun against the NHS Trust in 2003 and the agreed settlement had been reached in 2009. The undertaking that had been given by the Deputy as Litigation Friend, as part of that settlement, required her, in effect, to give credit for 98% of state funds received each year against the amount of the next periodical payment due from the Trust. The High Court order approving the settlement contained provision for the Deputy to be released from the undertaking by the COP if it were to be satisfied that the claimant did not have sufficient resources to meet her reasonable needs. The Trust had been succeeded as beneficiary of the undertaking by NHS Resolution. Both were parties to the COP proceedings.

The judge noted that Peters had been decided in the relatively early days of the modern Court of Protection. She also discussed the January 2010 judgment of Senior Judge Lush in Re Reeves 99328848. In that case, upon settlement of a personal injury claim, no Peters style undertaking had been given. The local authority applied for a restriction on the Deputy’s authority to apply for statutory care funding. The judge had considered the application to be misconceived and that the COP was not the appropriate forum to adjudicate matters of this kind. HHJ Carolyn Hilder’s review of the authorities also took in Tinsley and WDA.

After further analysis the judge concluded that, unlike in Reeves, she had jurisdiction to consider the application, but only on the basis that the parties had consented by the settlement, as approved by the High Court, to the COP doing so; and that it must be inferred that it should do so applying the best-interests principle. She therefore asked first whether BJB lacked sufficient resources to meet her reasonable needs, and, if so, then whether it was in her best interests that the Deputy be released from the undertaking. The judge continued at [64]:

“It should be clear from that approach that I am not determining any issue of 'double recovery.' If that is a deficiency, then in my judgment it is a deficiency to which the defendant in the damages claim consented and which the High Court approved. The place for addressing such deficiency is the court considering the damages claim, not the Court of Protection.”

Upon further close analysis the judge concluded that BJB did lack sufficient resources to meet her reasonable needs and that the Deputy should be released from the undertaking. Her closing observation was this [80]:

“Along with Senior Judge Lush in Reeves and with Lord Justice Longmore in Tinsley, I too doubt that it is right for issues which arise in civil litigation to be transferred to the Court of Protection in the way that they were, some time ago, in this matter. When I asked counsel before me they confirmed that, to the best of their knowledge, orders with a Peters undertaking are no longer being made. I welcome that development.”

The defendant’s contention is that para.15 of sch.2 of the 2014 Regulations should be interpreted as requiring funds in a PI trust to be disregarded, when assessing capital resources, save in respect of the element of a payment provided for the purpose of funding care needs.

The short answer to this argument is that the language of reg.12 of the 1987 Income Support Regulations, setting out the test which is adopted by para.15 of the 2024 Regulations is, to borrow the words of Dyson LJ in Peters at [30], “clear, unambiguous and unqualified.” In this case the funds in the PI trust are derived from a payment made in consequence of a personal injury to the claimant. Para.33(h) of the Annexe to the Guidance specifically confirms that that applies to such funds provided by the CICA. The reference in reg.12 to “the value of the trust fund and the value of the right to receive any payment under that trust” plainly and unambiguously applies to the whole of the fund and is unqualified in any way.

Mr Paget invoked the well-established modern approach to statutory construction, which is to have regard to the purpose of the provision in question and to interpret its language, so far as possible, in a way which gives best effect to that purpose. He submitted that the court should adopt an interpretation which will avoid producing an arbitrary or irrational result unless compelled by very clear wording to do so.

Mr Paget suggested that the fact that the wording of para.15 (which refers to reg.12 of the 1987 Regulations) was not qualified in the same way as that of para.16 (which refers to reg.12A of the 1987 Regulations) makes no logical sense. There was no good reason not to carve out care awards from the disregard of PI trusts, just as they are carved out from the disregard of an ordinary PI award. The rationale should logically apply equally to both. He suggested that this might have been the result of oversight on the part of the legislator. Awards of damages in respect of future care costs are a relatively modern development. In the predecessor regulations, and again in the 2014 Regulations, Parliament had overlooked to address this, and so in cases like Peters the courts had sought to fix the problem.

This general argument of statutory interpretation is in my judgment unsustainable. It is the very argument that was rejected in the Peters case (albeit there in relation to the provision concerning a fund administered by the COP). The language of the statute is unambiguous. It does not call, and leaves no room, for any act of interpretation.

In any event, it cannot be inferred that an obvious oversight or plain drafting error has occurred, particularly given that paras. 15 and 16 of the 2014 Regulations are adjacent, and para. 16 expressly excludes care funds from the disregard for which it provides, but para. 15 does not do so. This bespeaks that Parliament was expressly alive, and applied its mind, to the question of whether, or in which circumstances, funds relating to care needs should be treated differently; and it decided that payments into PI trusts should be treated differently from ordinary awards of PI damages in this respect.

It is not obviously illogical or contrary to the statutory purpose that an award which sits within a trust should be treated differently in this regard. Further, as Ms Elliot pointed out, by the time of the introduction of the 2014 Act and 2014 Regulations the fact that the disregard bit on damages for future care had long since been identified, in Firth, and Peters and Reeves had both been decided. The issue was not novel or unforeseen. The 2014 Act and Regulations would have provided Parliament with a convenient opportunity to exclude care damages from the disregard of trust funds, if it wished. It did not do so.

Mr Paget advanced a further argument drawing upon Secretary of State for Communities and Local Government v Welwyn Hatfield BC [2011] UKSC 15; [2011] 2 AC 304. In that case a builder had permission to build a barn for agricultural use, but built a dwelling house which was deliberately hidden by the external appearance of a barn. After the four-year statutory enforcement period had expired he applied for a certificate of lawful use as a dwelling house. The Supreme Court upheld the planning authority’s decision to refuse a certificate. Lord Mance (the other Justices concurring on this point) considered an argument that, as a general principle of purposive statutory construction, a provision should not be construed as enabling a person to benefit from his own wrong, requiring him to do an unlawful act to claim a benefit, or extending a general grant to include something that was unlawful or immoral. Lord Mance concluded that the four-year rule in the legislation could not have been intended to preclude enforcement in a case in which a positive deception had been practised on the planning authority.

Mr Paget argued that the present case should be regarded as relevantly analogous with Welwyn Hatfield. Although there had been no positive deception, by RGT or SGT, SGT was seeking to resile from a positive assurance that had been given by his predecessor in the 2012 CICA undertakings. He submitted that, notwithstanding that her undertaking was personal, SGT’s predecessor, RGT, had said that the claimant would not call on state funding. SGT had now, on behalf of the claimant, changed position, and resiled from her earlier stance. It was wrong of him to have done so, just as it would have been wrong had RGT purported to do so.

As I have noted, in Tinsley an argument based on Welwyn Hatfield was roundly rejected by Longmore LJ at [20] – [24]. There was, he said, nothing approaching that sort of deceit in that case. Nor was it immoral to claim a benefit to which Parliament had made clear Mr Tinsley was entitled, especially not in light of the provisions for specific disregard of funds administered by the COP, in respect of claimants who might claim funding pursuant to other legislation.

I do not consider that the fact of the 2012 CICA undertakings in this case makes a material difference. What is being invoked, it must be remembered, is a principle of statutory interpretation. The facts of Welwyn Hatfield were very stark. A deliberate deception was practiced on the very authority which had responsibility for enforcing the legislation, with a view to taking advantage of a provision of the legislation itself to thwart such enforcement.

In the present case it is not suggested that any deception was practiced by RGT. There is no suggestion that the undertakings that she gave in 2012 were not given in good faith. There has been no deception practiced by SGT, and, it is accepted, in applying for support, he acted on advice. Further, the 2012 CICA undertakings were not given to the defendant but to the CICA. Further, the basis on which they were given has since been recognised in authority as inappropriate and ineffective. Given, once again, that such issues were in the air at the time the 2014 Regulations were passed, there is no basis to infer as a matter of interpretation that Parliament must have intended that, in a case where undertakings had earlier been given along the lines of the 2012 CICA undertakings, the statutory disregard of all funds in PI trusts would not extend to funds providing for care needs.

As I have rejected the arguments based on statutory interpretation I uphold grounds 1 and 3. I conclude that the defendant did act unlawfully in refusing to entertain the claimant’s application on the basis that it did, and in seeking, on the same basis, to recoup discretionary funds that had already been paid out. In light of that conclusion, I do not need to consider the “reasons” challenge advanced by ground 2.

As to ground 4 the defendant wrongly failed to carry out a formal financial assessment as the duty to do so was engaged and the claimant had not consented to it not doing so. It cannot, as floated by Mr Paget in his skeleton argument, rely on s.31(2A) Senior Courts Act 1981 to contend that, had it undertaken an assessment it was “highly likely” that it would still have refused funding. That argument was premised on the scenario that it would still have taken that stance to avoid double recovery. That provision cannot be relied upon by reference to a counterfactual scenario in which the defendant would still have been acting unlawfully.

Where, upon an application for judicial review, the defendant is found to have acted unlawfully, the court nevertheless retains the power to decline relief. In R (Imam) v LB Croydon [2023] UKSC 45; [2025] AC 335 the issue was whether immediate mandatory relief against a local authority which had failed to comply with its statutory housing duty, should be declined because it lacked the resources to do so. Lord Sales (the other Justices concurring) explained:

“40.

The starting point is that Croydon is subject to a public law duty imposed by Parliament by statute which is not qualified in any relevant way by reference to the resources available to Croydon. In principle, if resources are inadequate to comply with a statutory duty it is for the authority to use whatever powers it has to raise money or for central government to adjust the grant given to the authority to furnish it with the necessary resources, or for Parliament to legislate to remove the duty or to qualify it by reference to the resources available. Ward LJ observed in Aweys, at para 52, that if local authorities are finding that fulfilment of their duties to accommodate the homeless is providing impossible, “it is for the legislature to consider whether their position can be ameliorated.”

41.

When it is established that there has been a breach of such a duty, it is not for a court to modify or moderate its substance by routinely declining to grant relief to compel performance of it on the grounds of absence of sufficient resources. That would involve a violation of the principle of the rule of law and an improper undermining of Parliament’s legislative instruction.   

42.

However, remedies in public law are discretionary: see, eg, R (Edwards) v Environment Agency, [2008] 1 WLR 1587 para 64; De Smith’s Judicial Review, 8^th ed (2018), para 18-047. The existence of a discretion as to the relief to be granted allows a court which finds that there has been a breach of a public law duty to decide, in the light of all the circumstances as appear to the court at the time it applies the law, how individual rights and any countervailing public interests should be reconciled. Although Parliament lays down a duty in statute, it does so whilst appreciating that it is a general feature of public law that some degree of adjustment might be called for by the court which decides that there has been a breach of the statute. When it legislates to lay down a public law duty, Parliament cannot be expected to anticipate with precision every factor which might bear upon the justice of a particular case which arises under it. It is a common feature of public law duties that they stipulate how a public authority should act in circumstances where what it does will affect the interests of a range of people, not just the person bringing the claim against them.”

Mr Paget advanced, in summary, the following lines of argument in support of the defendant’s case that, were I to find, as I have, that it acted unlawfully, then the claimant should nevertheless be denied relief.

First, he contended that there is a generally applicable principle that any court seized of the matter should strive to avoid or prevent double recovery from occurring. He submitted that there is a positive duty on this court to do so, citing the observation in WNA at [38] that the court should “actively intervene to prevent” double recovery.

Mr Paget acknowledged that the mechanism for avoiding double recovery, of a so-called Peters undertaking, has become discredited, and that such undertakings are no longer generally sought or given. He accepted that it is not any part of the function or duties of the COP to be concerned with tackling any issue of double recovery. However, he contended that the very fact that the authorities as they have developed now rule out such avenues of redress, supports the conclusion that it falls to the Administrative Court, in a case such as the present, to take the necessary action to prevent double recovery, by exercising its discretion to refuse relief.

Mr Paget also argued that, in the particular circumstances of this case, in view of the 2012 CICA undertakings, it would be unconscionable to grant the claimant a remedy. Further, if relief were to be declined, the claimant would not suffer any harm, as the resources to meet his care needs were allocated and available – there was no suggestion that the PI trust fund is depleted. Refusing relief would merely mean that the claimant would not get a windfall. Finally, the Administrative Court refusing relief was a convenient and appropriate mechanism to avoid double recovery in this case, given that the common source of both the capital residing in the PI trust (the CICA) and the putative further funding (the local authority) is public funds.

My starting point is that the double-recovery principle discussed in the relevant authorities is a principle that pertains to the assessment of damages in tort for personal injury. It therefore bears upon a court which is engaged in determining such an award, or considering whether to approve such a proposed award negotiated by the parties. It derives, ultimately, from the principle that damages in tort are (ordinarily) compensatory and not punitive.

Thus in Tinsley Longmore LJ’s express starting point when considering this issue, at [26], was that the courts will seek to avoid double recovery “at the time they assess damages against a negligent tortfeasor.” He went on to say that, while, if it is clear at trial that the claimant will seek to rely on the local authority for after-care services, they will not be able to recover the cost thereof from the tortfeasor, it “does not follow” that if a claimant is awarded damages under that head, he is thereafter precluded from applying to the local authority. He also contemplated that, in an extreme case, if a claimant were to do that just after the damages award the case “against the tortfeasor” might be able to be re-opened. In similar vein, at [31], Longmore LJ noted specifically that the undertakings envisaged in Peters were taken “at the time of the award of damages in order to ensure that the tortfeasor was not subjected to the risk that the claimant would make a double recovery”. They “were not inserted to protect the local authority but the tortfeasor”.

In Reeves the COP suggested that, in the absence of any order restricting the deputy from applying for public funding “the correct procedure would seem to be for the deputy to apply to the local authority and, if he is dissatisfied with the response he receives, to consider the merits of an application for judicial review.” But, unsurprisingly, the COP expressed no view as to how such applications should be determined; and Tinsley was itself a case where the local authority had refused funding, and the Administrative Court held that it had acted unlawfully in so doing. The Court of Appeal, itself citing Reeves at [34], upheld that decision.

Mr Paget submitted that it was significant that Tinsley was concerned with a right under the Mental Health Act, to what amounts to healthcare provision, which is not means tested. The reasoning and analysis in it were not apposite to a consideration of the problem of double counting in the context of the means-tested provisions that apply under the Care Act. However, I do not think it can be validly distinguished on that basis. The double recovery problem – if problem it be – can potentially be said to arise in respect of both a fixed and a means-tested payment. In both cases the basis of the local authority’s objection is that it is being expected to fund a provision which, on its case, can and should be funded from another available source.

Further, Longmore LJ’s reasoning was not confined to the Mental Health Act context. He observed in terms, at [9], that, had Mr Tinsley sought to rely on the 2014 Act, instead of the Mental Health Act, the applicable disregards under that regime would have applied. At [14] and [15], when discussing Crofton v National Health Service Litigation Authority [2007] EWCA Civ 71; [2007] 1 WLR 923, he noted that the concern of the court in that case “at the point of awarding damages” was to avoid the claimant recovering damages from the tortfeasor when they would in fact rely on the local authority; and while Crofton concerned an application under the 1948 Act, the present case under the 1983 Act was “not materially different.”

Mr Paget highlighted the closing remarks in Tinsley at [34], that if claimants “ask for direct payments, the provisions of the Care Act will have to be considered. Any argument about such provisions are for another day.” He submitted that this showed that the Court of Appeal had deliberately left the door open for the position in respect of an application made for care funding under the 2014 Act to be determined by the Administrative Court.

However, as Ms Elliot correctly pointed out, what was being referred to at [34] was the scenario in which a claimant (or someone on their behalf) seeks payment, in respect of after-care services under the 1983 Act, direct to the claimant, rather than to the care provider, pursuant to the specific provisions found in sch.4 of the 2014 Act. That is not the scenario in the present case. In any event the observations or sentiments expressed in this paragraph do not form any part of the dispositive reasoning. Mr Paget suggested that the Court of Appeal were “too sanguine” about the underlying problem rearing its head. But if that is thought to be the case, it is a matter for Parliament to amend the current regime, not the courts.

Turning to WNA v DNP, that was concerned with a damages award. HHJ Robinson’s remarks at [43] that the court “should actively intervene to prevent” double recovery were made in that context. The mechanisms he identified had all been adopted by courts at the point of assessing, or approving, damages awards. Further, both that case and CCC were concerned with the appropriate formula for the ongoing calculation of PPs. In CCC the annual “refund” of surplus state provision envisaged at [180] was to be made to “the Defendant”. These authorities provide no support for the suggestion that it is the function of a local authority, when in receipt of a claim, to concern itself with the potential issue of double recovery.

In Knight (BJB), once again, what the judge called the “reverse indemnity undertakings” were built in to a damages settlement approved by the court and related to the ongoing calculation of PPs. It was contended that there would not only be double recovery, but that it would be the State that was paying twice over, were the Deputy to be released from her undertaking. But the COP was emphatic, in the passage I have set out at [64], that the place for addressing any issue of double recovery is “the court considering the damages claim.”

Should the court nevertheless exercise its discretion to refuse relief in the particular circumstances of this case, in particular having regard to the fact of the 2012 CICA undertakings? Ms Elliot submitted that the undertaking given by RGT was personal to her and not binding on SGT (or, indeed CGT) relying in particular on the observations of the High Court in Peters at [77] (echoed by the Court of Appeal at [57]) about Mrs Miles recognising that any undertaking by her would be personal and could not bind her Deputy.

I interpose that at first blush it might be thought surprising that something done by a Deputy would not be treated as done in that capacity on behalf of the beneficiary, and so binding on a successor in that capacity. But I apprehend that the rationale in Peters was that what was being proposed in that case, was an undertaking to the court; and such undertakings are, in their nature, inherently commitments which are personal to the giver (and it was not suggested to me that an undertaking to the CICA fell into a different category).

Mr Paget said he accepted that the 2012 CICA undertakings were not binding in contract or in any way in private law. But, he argued, it “binds the Deputy in equity”. It would be unjust and unconscionable for the local authority to have to make payment, when the claimant had already received compensation from the CICA to cover his social care costs, which was awarded on the basis of an assurance that there would be no application to that authority for funding of the type subsequently made by SGT, and indeed none was made by RGT during her lifetime, nor indeed by SGT himself, following his appointment, prior to 2017.

Mr Paget relied on R v Secretary of State for the Environment, Transport and the Regions ex p Garland [2000] EWHC Admin 417. In that case, in summary, Mr Garland was the chief executive of a District Council. The District Auditor (DA) considered certain bonus payments made to him, under a scheme set up by him, which formed the basis of his pension calculation, to be unlawful. Upon a settlement of the dispute, the DA refrained from taking action on the understanding that Mr Garland would not pursue a further legal challenge. However, Mr Garland later sought a judicial review of the relevant decision against him. While the court concluded that the decision was defective, it declined relief, as the DA had relied on the assurance previously given, and was no longer able to take any action.

I note that the court in Garland observed at [44]:

“In my judgment, the District Auditor was misled, by the contents of the letters sent to him by the applicant's solicitors, into believing that the question of the applicant's appeal to the Secretary of State was no longer live. It is unnecessary for me to decide whether those letters were written either by the solicitors, or at the applicant's suggestion, in bad faith, although it might be difficult to resist the conclusion that they were. The coincidental nature of the timing of the conclusion of the settlement, for such I am satisfied that it was, and the re-opening of the question in relation of challenge to the decision letter is an unhappy one.”

I consider that the facts in Garland were far removed from those of the present case. I do not find it to be of assistance when considering whether I should refuse relief to this claimant.

Mr Paget submits that relief should be refused in this case, because the defendant’s decision has caused the claimant no harm or prejudice, as the funds have been, and are, available in the PI trust to fund his care needs. Granting relief, he submits, would provide the claimant with a windfall. I reject this argument, for the following reasons.

First, in this case a single lump sum award was made to the PI trust. There is no ongoing provision for PPs. The failure of the defendant to comply with its statutory duty has necessitated payments being made by the OS to the care provider out of that fund, that would not have otherwise been paid out. That has had a real impact on the funds available to support and meet the claimant’s care and other needs in the years that lie ahead. Further, a court making an award of PPs has the ability to incorporate a mechanism for the amount each year to be adjusted to changing circumstances. Even the 2012 CICA undertakings (though they wrongly delegated the task to the COP) recognised that some future assessment in light of changing circumstances needed to be catered for. I do not agree that in the present case it can be simply assumed that any payment made by the defendant would amount to a windfall.

Further, unlike the local authority in Imam, the defendant does not rely on lack of resources or any other exceptional or unusual circumstances to crave the court’s indulgence. Its arguments are effectively a retread of the very arguments that I have rejected in holding that the defendant has acted unlawfully. They cannot be relied upon to produce the same outcome at the relief stage that would have obtained had I accepted them at the liability stage.

Mr Paget described the Decision Letter as a public law decision taken to protect the public purse. He relied on the fact that the CICA funding and local authority funding both draw upon public money. But it cannot be right that the court should proceed on the basis that different public bodies, with different sources of public funding, governed by different funding regimes, should be treated as if they were one. Further, to take such an approach would be to ride roughshod over the principled distinction between the position of the tortfeasor (be they a public or private body – the authorities draw no distinction) and that of a local authority which is subject to statutory duties. It is simply not the function of the local authority when carrying out those duties to concern itself with such questions. The statute and the Regulations tell it how to perform the relevant calculations.

For all of these reasons I reject the defendant’s invitation to exercise my discretion to refuse relief in this case.

This claim for judicial review succeeds. I will grant a declaration that the decisions conveyed in the Decision Letter, both to cease funding, and to demand repayment of discretionary sums previously paid out, were unlawful, and I will quash those decisions.

It is common ground, as I have noted, that the basic conditions of eligibility in s.18 of the 2014 Act were met in this case. It is also common ground that if, as I have found they should have been, the funds in the PI trust are wholly disregarded, the claimant had no other capital resource. I was also told that the claimant has been assessed as eligible for continuing healthcare funding by NHS Sussex Integrated Care Board with effect from 16 September 2025, but that, prior to that, following the defendant’s decision of 7 June 2024, the PI trust made payments for the claimant’s care in the sum of £66,979.15.

Having been sent this judgment in draft under embargo terms, respective counsel agreed that I should also, in light of my decision, direct the defendant to pay that sum of £66,979.15 to the PI trust, subject to any deduction for contributions owed by the claimant pursuant to the Care and Support (Charging and Assessment of Resources) Regulations 2014; and I am indeed so directing.

The parties also agreed that I should order the defendant to pay the claimant’s costs of these proceedings, to be subject to detailed assessment if not agreed, but disagreed as to whether any such assessment should be directed to be on the indemnity or the standard basis. Having considered written submissions from both counsel on that point, my decision on it follows.

Pursuant to CPR 44.3 the court has a discretion to direct that any assessment be on the indemnity basis. I have been guided by the Court of Appeal decisions referred to in the White Book’s commentary at 44.3.8.; and I have considered the authorities particularly cited by Mr Paget in his written submission.

In seeking indemnity costs the claimant relies, in summary, on the following features or contentions:

The claimant says, in summary, that there has been unreasonable conduct and that it has caused considerable distress and inconvenience to SGT.

Mr Paget notes that SGT is not a party to this litigation in his own right. Given that he is the claimant’s Deputy and litigation friend, I would not regard that as a knock-out point, as such; however, the general assertion that the opposing party’s conduct of the litigation has caused a participant upset, distress or anxiety is not enough to warrant an award of indemnity costs.

As to the substantive conduct relied upon, at (a), the defendant advanced its case in correspondence, and in due course in its grounds of defence. It did not succeed at the hearing of this application. That is not sufficient to warrant an award of indemnity costs. As to (b) the COP made an award of costs in relation to the claim brought before it. The fact that the OPG and COP took the views that they did of the applications made to them was not determinative of what view this court might take of this application for judicial review, on its merits, nor as to relief. As to (c) and the issue of delay, from 2020 the defendant, albeit on a “without prejudice” basis, and albeit that in 2024 it claimed repayment, did provide funding for the claimant’s care during that period.

As to (d) the Welwyn Hatfield argument failed, but that is not a sufficient basis for awarding indemnity costs. The aspect that has given me most pause relates to the arguments raised which referred to a decision of another court in other proceedings, and to potential conflicts of interest on the part of SGT, arguments which, in opening discussions at the hearing before me, Mr Paget indicated were not, in the event, pursued.

However, the reference to the decision in the other proceedings was, it was accepted, not inaccurate, as such, and the arguments raising potential issues of conflict did not expressly impugn SGT or his conduct as immoral. Though they were rightly and sensibly abandoned, these lines of argument were peripheral and did not take up very much time. SGT being upset or offended by them having been raised is not enough in this context.

Standing back, I do not think that there is here, separately or cumulatively, conduct that is unreasonable, or out of the ordinary course of litigation, of the particular kind that should result in an award of indemnity costs. I will therefore direct that any assessment be conducted on the standard basis.