Richards v Worcestershire County Council & Anor

I have before me an application by the defendants, Worcestershire County Council and South Worcestershire Clinical Commissioning Group, for these proceedings to be struck out.

The claimant, Mr John Richards, sustained head injuries in a traffic accident in 1984. He was subsequently diagnosed as suffering from frontal lobe damage and bipolar affective disorder. By 2004, he had been detained in hospital on a number of occasions under the Mental Health Act 1983 (“the 1983 Act”). He was last detained between August and October of 2004. He was initially admitted under section 2 of the 1983 Act, but was detained under section 3 from 8 September.

While Mr Richards was in hospital, Dr Richard Crellin, a consultant psychiatrist and Mr Richards’ responsible medical officer (within the meaning of section 34 of the 1983 Act), completed a supervision application under section 25A of the 1983 Act in respect of him. Section 25A has since been repealed, but at the time it allowed for an application (termed a “supervision application”) to be made for a patient “to be supervised after he leaves hospital … with a view to securing that he receives the after-care services provided for him under section 117 below”. Under section 25B(9), such an application was to be accompanied by, among other things, “details of the after-care services to be provided for the patient under section 117 below” and “details of any requirements to be imposed under section 25D below”. Section 25D empowered the “responsible after-care bodies” to impose certain requirements “for the purpose of securing that the patient receives the after-care services provided for him under section 117 below”. It can be seen from section 25D(3) that the requirements that could be imposed related to residence, attendance for medical treatment, occupation, education or training and access to the patient.

Section 117 of the 1983 Act, to which there was reference in section 25A, applies to, among others, persons who leave hospital after having been detained there under section 3. By virtue of subsection (2), the relevant NHS commissioning groups (or, previously, primary care trusts) and local social services authorities have a duty to provide such persons with “after-care services”. At the relevant times, this expression was not defined in the legislation, but in R (Mwanza) v Greenwich LBC [2010] EWHC 1462 (Admin), [2011] PTSR 965 Hickinbottom J quoted this passage from a commentary on the 1983 Act (Jones, Mental Health Manual, 12th ed.):

“It is suggested that an after-care service is a service which is (1) provided in order to meet an assessed need that arises from a person’s mental disorder; and (2) aimed at reducing that person’s chance of being re-admitted to hospital for treatment for that disorder.”

The supervision application completed in respect of Mr Richards explained that Dr Crellin was of the opinion that after-care under supervision was necessary for Mr Richards. A pre-printed sentence in the form stated that “details of the after-care services to be provided for this patient” were attached, but no such attachment has come to light. The form then continued:

“I consider that the patient should be subject to the following requirements:-

(1)

To attend outpatient clinic at Studdert Kennedy [House] to see consultant or SHO [i.e. senior house officer] at least 3 monthly

(2)

To attend Studdert Kennedy for assessment by consultant /staff grade or SHO if requested by any member of his care team

(3)

To allow access to his CPN [i.e. community psychiatric nurse] or social worker, on request, with reasonable notification.

(4)

To co-operate with his case managers care plan, as negotiated with him on discharge (eg ‘buddies’ etc)

(5)

To attend Studdert Kennedy House daily if requested by community supervisor for a limited period (max 2 weeks)”.

On 11 October 2004, Dr Crellin confirmed to Mr Richards in a letter that he was to be transferred onto a “Supervised Discharge Order”. He listed items corresponding to those set out in the previous paragraph as “a critical part of [Mr Richards’] treatment plan”. The fourth point was expressed as:

“To co-operate with your case managers plan (Rebecca Strange) as negotiated with you at the time of discharge from Section 3. This care plan will be agreed for you in writing at the time of discharge”.”

Mrs Anne Minihane, who has been Mr Richards’ property and affairs deputy (for the purposes of the Mental Capacity Act 2005) since 2012, has stated that she interprets the documentation from September and October of 2004 as “showing that the section 117 after-care plan, which the supervision application is in place to ensure [Mr Richards] receives, includes the care plan to be agreed for [him] with his care manager”.

Mr Richards was discharged from hospital on 21 October 2004 on the basis that he would be subject to after-care under supervision. The bodies responsible for Mr Richards’ after-care under section 117 of the 1983 Act were identified as Worcestershire County Council (“the Council”) and Worcestershire Mental Partnership NHS Trust. The “care plan” that will presumably have been agreed between Mr Richards and his case manager has not come to light.

In the following years, Dr Crellin periodically confirmed that Mr Richards needed to continue to be subject to after-care under supervision.

Between November 2004 and April 2006, Mr Richards lived at the Community of St Antony and St Elias in Devon. He then moved into a home of his own, but with the benefit of full-time carers.

In September 2006, Dr Crellin wrote:

“The Supervised Discharge Order requires [Mr Richards] to attend Studdert Kennedy at least 3 monthly; to attend at our request in case we have any concerns about him; it requires him to give access to members of the mental health team or myself with appropriate notice; it requires him to cooperate with his care plan as devised by his case manager, Rebecca Strange.

Unfortunately, it cannot require him to take medication as prescribed. In the past [Mr Richards’] mental state has had to deteriorate for quite some time before people have been willing to detain him for compulsory treatment. This has sometimes had fairly significant negative impacts on his finances and his relationships. The Supervised Discharge Order is a very definite statement that this man can be at significant risk of exploitation and self-neglect, as well as potentially dangerous to others when well.”

Mrs Minihane has said that her interpretation of this letter and the supervision application is that Mr Richards’ “section 117 after-care plan includes the care plan devised by his care manager and the purpose of the supervision application is to ensure that he receives those services”.

In 2009, Dr Crellin noted that Mr Richards had a “very comprehensive package of care, which is provided privately through the insurance settlement that was obtained following his accident”.

Also in 2009, Dr John Vaughan, another consultant psychiatrist, succeeded Dr Crellin as Mr Richards’ responsible medical officer.

By late 2012, steps were being taken to re-assess Mr Richards’ needs with a view to setting up a new care plan that would be “carried out under section 117 Aftercare”. In the event, the defendants implemented such a plan under section 117 of the 1983 Act from 7 June 2013.

The issue of funding Mr Richards’ care was raised with the Council as long ago as 2006. In a letter to the Council of 22 June 2006, Mrs Christine Bunting, who then acted as Mr Richards’ Court of Protection receiver and later became his property and affairs deputy, said:

“It would appear that Mr Richards is entitled to funding for the aftercare services he has received and which he is currently receiving.”

In a further letter of 31 August 2006, Mrs Bunting sought “confirmation that the trust accept responsibility for the cost of Mr Richards’ aftercare provision”. On 16 May 2007, Mrs Bunting said in a letter to the Council that it “would appear that there is responsibility to fund aftercare services with effect from 29^th May 1999 when the first admission under Section 2 [of the 1983 Act] was converted to a Section 3”. On 23 May 2007, however, the Council wrote that it was reiterating “its request for disclosure [of information] in advance of any acceptance of liability”. Almost two years later, the Council said in a letter that it would be able to address the matters that had been raised when it had been provided with all of the information that it required.

The present proceedings were issued on 6 March 2015. They seek to recover sums totalling £644,645.87, which, it is said, were spent by Mr Richards’ deputy on his behalf on providing him with care.

The claim is based on section 117 of the 1983 Act. It is Mr Richards’ case that section 117 applied when he was released from hospital in 2004 and that, accordingly, the defendants had a duty to provide him with after-care services. He contends that that duty extended to the provision of the various services which have thus far been paid for privately.

In the course of her submissions, Ms Katie Scott, who appeared for Mr Richards, stressed that Mr Richards is not challenging the defendants’ assessment of his needs and or their decisions as to what after-care services should be provided. His case, Ms Scott explained, is rather that the defendants failed to provide the services that they considered should be supplied. Take, for example, Mr Richards’ placement at the Community of St Antony and St Elias. Mr Richards’ contention is that, on the facts, the supervision application of September 2004 incorporated into his section 117 after-care plan the care plan of his case manager, which, it is argued, will have included the placement. It was thus, it is said, the defendants’ duty to provide the placement and it is now incumbent on them to reimburse Mr Richards for the cost of the placement. The particulars of claim assert that Mr Richards “through his property and affairs deputy”, “operating under a mistake,” paid (a) £137,911.21 to the Community of St Antony and St Elias for his placement there and (b) £506,734.66 “for the support [Mr Richards] required as part of his section 117 after-care plan between April 2006 and 7 June 2013”. It is further alleged that each of these payments “amounted to a transfer of value between [Mr Richards] and the defendants’ substitute, and as such relieved the [defendants] of the burden of paying for [Mr Richards’] after-care services and/or unjustly enriched the defendants”. The inference is then drawn that Mr Richards is “entitled to restitution and/or recoupment from the Defendants and/or recovery of the benefit unjustly gained by the Defendants of the sums paid by [Mr Richards]”.

In contrast, Mr Richard Janssis, who has been Mr Richards’ social worker in recent years, has stated in a witness statement that he has “not identified any record of the Defendants having concluded that Mr Richards needed, as an after-care service, the care which was provided to him privately after he left hospital in October 2004”.

It is evident that Mr Richards’ claim faces significant hurdles on the facts. Those, however, are not the subject of the application before me. That seeks to have the claim struck out, not on the facts, but on the footing that it is not properly the subject of private law proceedings.

There are essentially two issues to consider:

In Clunis v Camden and Islington HA [1998] QB 978, the plaintiff had killed someone and, as a result, been convicted of manslaughter and ordered to be detained in a secure hospital when subject to after-care under section 117 of the 1983 Act. He sought damages from the health authority on the basis that he would not have killed anyone but for negligence on the part of the authority. As Beldam LJ, giving the judgment of the Court of Appeal, explained (at 985-986), the plaintiff’s counsel argued:

“[The plaintiff’s] relationship with the defendant was that of doctor and patient, which clearly gives rise to a duty of care. Even if that was not the relationship between the plaintiff and the defendant, the obligations imposed under the Mental Health Act 1983 created duties owed by the defendant to a limited class, i.e. mental health patients, whom Parliament must have intended should have a right to sue for breach of that duty. Failing that, the obligations imposed by Parliament on the defendant gave rise to a duty of care owed to him at common law.”

The Court of Appeal struck out the claim both on the basis that “[t]he court ought not to allow itself to be made an instrument to enforce obligations alleged to arise out of the plaintiff’s own criminal act” (see 990) and because the Court did “not think the plaintiff can establish a cause of action arising from a failure by the defendant or Dr. Sergeant [i.e. the plaintiff’s responsible medical officer] to carry out their functions under section 117 of the Mental Health Act 1983” (see 993).

It is the latter point that matters in the context of the present case. As to that, the Court first asked itself (at 991) “whether the statutory provisions in this case create duties which give rise to a private law claim for damages if they are not fulfilled or, more particularly, whether a person who has been detained in hospital and who is discharged can claim damages for non-performance of the ‘after-care’ obligations in section 117(2) of the Act of 1983”. It concluded that that they did not. It said (at 991):

“Under section 117(2) the authorities named are required to co-operate with voluntary organisations in setting up a system which provides after-care services for patients who have been discharged from hospital after treatment for mental disorder. The services have to be made available to such persons until ‘the person concerned is no longer in need of such services.’ Undoubtedly the section is designed to promote the social welfare of a particular class of persons and to ensure that the services required are made available to individual members of the class. However section 124 provides the Secretary of State with default powers if he is of the opinion ‘on complaint or otherwise’ that the functions conferred or imposed under the Act have not been carried out. Thus the primary method of enforcement of the obligations under section 117 is by complaint to the Secretary of State. No doubt, too, a decision by the district health authority or the local social services authority under the section is liable to judicial review at the instance of a patient: see Reg. v. Ealing District Health Authority, Ex parte Fox [1993] 1 W.L.R. 373. The character of the duties created seem to us closely analogous to those described by Lord Browne-Wilkinson in X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633, 747 as requiring:

‘exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties.’

In our view the wording of the section is not apposite to create a private law cause of action for failure to carry out the duties under the statute.”

Neither did the Court consider a common law duty of care to have been owed. It said this (at 991-992):

“Mr. Irwin [i.e. counsel for the plaintiff] argued that, on discharge from hospital, the patient nevertheless remained a person for whom the district health authority and the local social services authority are responsible in the sense that they have a duty not only to ensure that the services are available but that the patient receives the benefit of them, and he went on to submit that a duty of care is thereby imposed on the authority which is merely an extension of the care which he has been receiving as a patient in hospital. In effect, he submitted, the relationship of doctor and patient which existed between the district health authority and the plaintiff while he was in hospital continued after discharge, so that a common law duty of care was owed by the defendant to continue the plaintiff’s treatment. Is it in the circumstances just and reasonable to superimpose such a common law duty of care on an authority in relation to the performance of its statutory duties to provide after-care? We do not think so. We find it difficult to suppose that Parliament intended to create such an extensive and wide-ranging liability for breaches of responsibility under section 117, which would of its nature apply alike to those engaged as professionals as well as those in voluntary services in many disciplines.

After-care services are not defined in the Act of 1983. They would normally include social work, support in helping the ex-patient with problems of employment, accommodation or family relationships, the provision of domiciliary services and the use of day centre and residential facilities. No doubt an assessment of the patient’s needs would in the first instance be made by the hospital which discharged him. It was for that purpose in this case that the defendant sought to arrange appointments with the plaintiff. In that respect, its actions through Dr. Sergeant were essentially in the sphere of administrative activities in pursuance of a scheme of social welfare in the community. Bearing in mind the ambit of the obligations under section 117 of the Act of 1983 and that they affect a wide spectrum of health and social services, including voluntary services, we do not think that Parliament intended so widespread a liability as that asserted by Mr. Irwin. The question of whether a common law duty exists in parallel with the authority's statutory obligations is profoundly influenced by the surrounding statutory framework: see per Lord Browne-Wilkinson in X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633, 739c and per Lord Hoffmann in Stovin v. Wise [1996] A.C. 92, 952-953. So, too, in this case, the statutory framework must be a major consideration in deciding whether it is fair and reasonable for the local health authority to be held responsible for errors and omissions of the kind alleged. The duties of care are, it seems to us, different in nature from those owed by a doctor to a patient whom he is treating and for whose lack of care in the course of such treatment the local health authority may be liable.”

In the circumstances, the Court did “not think the plaintiff can establish a cause of action arising from a failure by the defendant or Dr. Sergeant to carry out their functions under section 117 of the Mental Health Act 1983” (see 993).

Mr Lee Parkhill, who appeared for the defendants, contended that the Court of Appeal’s decision in Clunis establishes that no private law cause of action can arise from a failure to carry out duties under section 117 of the 1983 Act and, hence, that Mr Richards’ claim cannot be sustained and should be struck out.

As Mr Parkhill pointed out, section 124 of the 1983 Act, which the Court of Appeal noted provided the Secretary of State with default powers, was repealed with effect from 1 April 1993. I agree with Mr Parkhill, however, that the repeal cannot have brought into being a private law cause of action which did not already exist. After all, nothing in the National Health Service and Community Care Act 1990, which effected the repeal, referred to the creation of such a cause of action and decisions of the relevant authorities remained susceptible to judicial review.

Ms Scott argued that the Clunis case is distinguishable. Whereas, she said, Clunis involved a claim for damages, Mr Richards is seeking restitution. That has the consequence, she submitted, that the Court has to ask itself whether the 1983 Act excluded a private law claim rather than (as in Clunis) whether the Act intended to confer a private law right, and no intention to exclude a claim in unjust enrichment can be discerned in the 1983 Act.

Ms Scott relied in support of her submissions on Deutsche Morgan Grenfell Group plc v IRC [2006] UKHL 49, [2007] 1 AC 558 and R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UKSC 54, [2011] 2 AC 15. In Deutsche Morgan Grenfell Group plc v IRC, the claimant sought to recover money that it had paid to the Inland Revenue in, it said, the mistaken belief that it was due. It was argued on behalf of the Inland Revenue that section 33 of the Taxes Management Act 1970, which allows someone who alleges that he has paid too much tax to apply to the Inland Revenue for relief in certain circumstances, precluded a common law claim. The House of Lords rejected the submission. Lord Hoffmann said (in paragraph 19):

“When a special or qualified statutory remedy is provided, it may well be inferred that Parliament intended to exclude any common law remedy which would or might have arisen on the same facts…. But I see no reason to infer that Parliament intended to exclude a common law remedy in all cases of mistake (whether of fact or law) in which the revenue was unjustly enriched but did not fall within section 33.”

In the Child Poverty Action Group case, the question was whether the Secretary of State could claim repayment of overpaid social security payments at common law. The Secretary of State contended that “the Crown’s common law right to recover benefits overpaid by mistake of fact or law is not excluded by [the Social Security Administration Act 1992]”. The Supreme Court decided otherwise. Lord Brown said (at paragraph 15):

“I am persuaded that section 71 [of the Social Security Administration Act 1992] does indeed necessarily exclude whatever common law restitution rights the Secretary of State might otherwise have. The title to Part III of the Act, Overpayments and adjustments of benefit, not merely suggests but to my mind provides for a comprehensive and exclusive scheme for both the correction and consequences of mistaken benefit awards.”

I accept Ms Scott’s submission that Clunis can be distinguished from the present case. The question in Clunis was whether a tortious claim for damages could succeed. When the Court of Appeal said that the wording of section 117 of the 1983 Act “is not apposite to create a private law cause of action for failure to carry out the duties under the statute”, its focus was on whether the provision gave rise to a claim in tort for breach of statutory duty. It will not have had in mind, and cannot be taken to have ruled on, any issue as to the availability of a claim in unjust enrichment.

I also agree with Ms Scott that the 1983 Act does not evince an intention to exclude any common law claim for unjust enrichment that would otherwise exist. It does not, for example, contain anything equivalent to the “comprehensive and exclusive scheme for both the correction and consequences of mistaken benefit awards” to which Lord Brown referred in the Child Poverty Action Group case.

The mere fact, however, that the 1983 Act may not have excluded any claim for unjust enrichment does not imply that Mr Richards has such a claim. As the law stands, a successful unjust enrichment claim depends on establishing what has been termed an “unjust factor”. In the Deutsche Morgan Grenfell case, Lord Walker identified (at paragraph 154) a choice “between continuing to view unjust enrichment as depending on the presence of one or more of a variety of ‘unjust factors’ and adopting the single test of ‘absence of basis’” and (at paragraph 155) doubted whether this was “the right time … to decide whether to rebase the whole law of unjust enrichment on a highly abstract principle which … would represent a distinct departure from established doctrine”. In the same case, Lord Hoffmann said (at paragraph 21):

“unlike civilian systems, English law has no general principle that to retain money paid without any legal basis (such as debt, gift, compromise, etc) is unjust enrichment. In the Woolwich case [1993] AC 70, 172 Lord Goff said that English law might have developed so as to recognise such a general principle-the condictio indebiti of civilian law-but had not done so. In England, the claimant has to prove that the circumstances in which the payment was made come within one of the categories which the law recognizes as sufficient to make retention by the recipient unjust.”

Subsequently, in FII Group Claimants v Revenue and Customs Comrs [2012] UKSC 19, [2012] 2 AC 337, Lord Sumption affirmed (at paragraph 162):

“It is necessary, as the law presently stands, to bring the facts within one of the categories of case in which the law recognises that the recipient’s retention of the money would be unjust.”

The Deutsche Morgan Grenfell and Child Poverty Action Group cases both concerned a recognised unjust factor. Each raised the question of whether an alleged right to recover money paid under mistake was excluded by a statute. That mistake can be an unjust factor is clear law, albeit that it has only quite recently been established that a mistake of law can suffice.

In the present case, Mr Richards’ claim seems to be based in part on the simple proposition that payments made on his behalf served to relieve the defendants of liabilities which they ought to have been bearing under section 117 of the 1983 Act. So far as I am aware, however, 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. It is significant in this context that I was not referred to any case in which a restitutionary claim had succeeded in circumstances comparable to those in the present case.

On the other hand, Mr Richards also alleges that his deputy made payments under mistake, an accepted unjust factor. Since none of the relevant payments was to either defendant, there can be no scope for a conventional claim to recover money paid under mistake. That need not necessarily, however, be fatal to Mr Richards’ claim. Goff & Jones, “The Law of Unjust Enrichment”, 8^th ed., suggests (in paragraph 9-02):

“If defendant was enriched at the claimant’s expense as a result of an operative mistake, then a restitutionary remedy should be available to recover the value of this enrichment, regardless of whether the benefit received by the defendant is the face value of money, the use value of money, the capital value or the use value of some other type of asset, the receipt of services, or the discharge of an obligation which the defendant owed to another party.”

In the circumstances, it is at least seriously arguable that, if the facts asserted by Mr Richards are correct, the defendants have been enriched at Mr Richards’ expense for the purposes of the first and second questions identified in, for example, paragraph 18 of Lord Clarke’s judgment in Menelaou v Bank of Cyprus UK Ltd [2015] UKSC 66, [2016] AC 176. In fact, Mr Parkhill did not contend to the contrary.

On the facts, it is not, on the face of it, easy to see how Mr Richards can establish that payments since at any rate 22 June 2006 were made under mistake. After all, Mrs Bunting asserted in a letter to the Council of that date that Mr Richards appeared to be “entitled to funding for the aftercare services he has received and which he is currently receiving” (see paragraph 15 above). The application to strike out was not, however, advanced on the basis that there can have been no relevant mistake and I have not heard argument on the point.

In all the circumstances, the defendants have not demonstrated that Mr Richards cannot have a restitutionary claim against them.

If, as I have concluded, the possibility of a restitutionary claim cannot be discounted, was it open to Mr Richards to bring his claim (as he has) by a Part 7 claim in the Chancery Division rather than by way of judicial review?

In O’Reilly v Mackman [1983] 2 AC 237, the House of Lords held that challenges to decisions made by public authorities must normally be made by way of judicial review. Lord Diplock said this (at 285):

“Now that … all remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 [of the Rules of the Supreme Court] for the protection of such authorities.”

Order 53 of the Rules of the Supreme Court has since been superseded by CPR Part 54.

Lord Diplock himself recognised (at 285) that there could be exceptions to the general rule. In subsequent cases, the Courts have allowed litigants to raise public law issues in ordinary civil proceedings in a variety of situations. When, for example, a council tenant facing possession proceedings sought to defend them on the basis that rent increases were ultra vires and void, he was permitted to do so: see Wandsworth LBC v Winder [1985] AC 461. One of the differences that Lord Fraser identified (at 507) between the facts of O’Reilly v Mackman and those of the case before him was that “the plaintiffs in O’Reilly had not suffered any infringement of their rights in private law”. In Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624, a general medical practitioner was held to be able to use ordinary civil proceedings to try to recover an allowance which had been withheld by the Family Practitioner Committee on the basis that he was not devoting a substantial amount of time to general practice. Lord Bridge said (at 628-629):

“It is appropriate that an issue which depends exclusively on the existence of a purely public law right should be determined in judicial review proceedings and not otherwise. But where a litigant asserts his entitlement to a subsisting right in private law, whether by way of claim or defence, the circumstance that the existence and extent of the private right asserted may incidentally involve the examination of a public law issue cannot prevent the litigant from seeking to establish his right of action commenced by writ or originating summons, any more than it can prevent him from setting up his private law right in proceedings brought against him.”

Again, in Trustees of the Dennis Rye Pension Fund v Sheffield City Council [1998] 1 WLR 840 the Court of Appeal declined to strike out claims for sums said to be due as improvement grants. Lord Woolf MR (at 846) regarded it as “clear that in general when performing its role in relation to the making of grants the authority is performing public functions which do not give rise to private rights”, but he saw the case as one “where the plaintiff’s relationship with a public body whether statutory or contractual would confer on him conditional rights to payment so that the bringing of ordinary actions to enforce those rights was not in itself an abuse of process”. Pill LJ explained (at 851):

“[A] refusal to approve an application for a grant gives rise to no right to damages…. However, once an application is approved a duty to pay it arises upon compliance by the applicant with the statutory requirements and the duty is in my view enforceable by an ordinary money claim.”

In Boddington v British Transport Police [1999] 2 AC 143, the House of Lords concluded that a defendant could raise as a defence to a criminal charge a contention that a byelaw, or a decision made pursuant to it, was ultra vires. In the course of his judgment, Lord Steyn said (at 172):

“Since O'Reilly v. Mackman decisions of the House of Lords have made clear that the primary focus of the rule of procedural exclusivity is situations in which an individual’s sole aim was to challenge a public law act or decision. It does not apply in a civil case when an individual seeks to establish private law rights which cannot be determined without an examination of the validity of a public law decision. Nor does it apply where a defendant in a civil case simply seeks to defend himself by questioning the validity of a public law decision.”

Boddington and Roy were, however, both distinguished in Shingara v Secretary of State for the Home Department [1999] Imm AR 257, where it was argued that Mr Shingara could challenge a 1991 direction by the Home Secretary in the context of his claim that he was falsely imprisoned in 1993. Brooke LJ said of Roy (at 107):

“This appears to me to be an entirely different situation from the present, where Mr Shingara has no private law right to claim damages for false imprisonment unless he can show that the public law decision by which his liberty was curtailed was unlawfully made. In order to do this he must, in my judgment, challenge that decision directly in proceedings brought for that purpose, and it is now far too late for him to do so.”

More recently, in Trim v North Dorset DC [2010] EWCA Civ 1446, [2011] 1 WLR 1901 Carnwath LJ observed (at paragraph 21) that experience “has shown that a clear division between public and private law is often difficult to maintain” and that the “rigidity” of the “exclusivity” principle has “had to be relaxed accordingly”. On the other hand, Carnwath LJ did not read the cases dealing with situations in which private and public law principles overlapped “as seeking to undermine the principles that purely public acts should be challenged by judicial review, and that it is in the public interest that the legality of the formal acts of a public authority should be established without delay”.

There has been reference in several authorities to the suitability (or otherwise) of judicial review proceedings where there are disputes of fact. In the Dennis Rye case, Lord Woolf MR said (at 847) that a challenge to a local authority’s refusal to express satisfaction with improvement works would “depend on an examination of issues largely of fact which are more appropriately examined in the course of ordinary proceedings than on an application for judicial review”. In a similar vein, Coulson J (with whom Laws LJ agreed) said in Sher v Chief Constable of Greater Manchester Police [2010] EWHC 1859 (Admin), [2011] 2 All ER 364 (at paragraph 68):

“Because evidence is usually given by way of affidavit and there is no cross-examination, judicial review is generally an unsuitable process for cases with a high degree of factual debate….”

In contrast, in Trim Carnwath LJ said (at paragraph 37) that “the existence of unresolved factual issues is not itself a reason for avoiding judicial review”. He had earlier observed (at paragraph 24):

“The need to resolve such disputes does not often arise, because of the nature of most judicial review proceedings. But, when it does arise, it does not create any particular conceptual or procedural problems.”

Ms Scott submitted that there can be no objection to a Part 7 claim in the present case. The “general rule” enunciated in O’Reilly v Mackman, she said, is to be confined to cases concerned exclusively with public law. A private law cause of action can be pursued by way of a Part 7 claim regardless of it whether involves public law issues. In any case, Mr Richards is not alleging that the defendants failed to perform their statutory duty to assess and determine his section 117 needs. Far from challenging the defendants’ decisions, Ms Scott argued, Mr Richards is relying on them. His position is that there is a mismatch between what was decided and what was provided. That gives rise to issues of fact as to what was comprised in the after-care plans for Mr Richards and also, potentially, quantification of his claim, but those matters can be (and are best) decided in ordinary civil proceedings. The position, so it was said, is comparable to that in the Dennis Rye case, where it was recognised that, once an application for a grant had been approved, there was a duty to pay that could be enforced without any application for judicial review.

For his part, Mr Parkhill said that the mere fact that Mr Richards is making a money claim does not legitimise his bringing ordinary civil proceedings. According to Mr Parkhill, Mr Richards’ case not only involves, but hangs on, an allegation that the defendants failed to perform public law duties. The position is comparable to that in Shingara, where Brooke LJ observed that Mr Shingara could not have a private law right unless he could show that a public law decision had been unlawfully made.Further, there is, Mr Parkhill explained, an issue as to whether item (4) in the list quoted in paragraph 5 above was lawful. Allowing Mr Richards to proceed by way of a Part 7 claim would deprive the defendants of the protections that it has been thought right to confer on public bodies in the context of judicial review. In Carter Commercial Developments v Bedford BC [2001] EWHC Admin 669, Mr Parkhill noted, Jackson J said of the time limit set by CPR 54.5 (pursuant to which judicial review claims must be filed “not later than 3 months after the grounds to make the claim first arose”):

“This rule serves an important public purpose…. The important public purpose is that challenges to the decisions of public authorities should be brought to a resolution one way or the other speedily. This is in the interests of justice and of good administration.”

Mr Parkhill also pointed out that, unlike Order 53 of the Rules of the Supreme Court, CPR 54.3 nowadays allows a claim for “damages, restitution or the recovery of a sum due” to be included in a claim for judicial review.

Mr Parkhill argued that the decision of Plender J in Jones v Powys Local Health Board [2008] EWHC 2562 (Admin), (2009) 12 CCLR 69 provides a close analogy to the present case. In Jones, a claim was brought for restitution of amounts paid in respect of care home bills. It was alleged that a Mr Jones (the claimant’s father) had been entitled to free home care and accommodation but that this had not been provided. Plender J struck out a writ action as an abuse of process. He considered that the proceedings involved a challenge to a public law act or decision as the dominant issue (see paragraphs 28-32) and that (at paragraph 39):

“the institution of the present proceedings by writ rather than by application for judicial review deprives the [defendants] of protection that they would otherwise have enjoyed and is inconsistent with the just conduct of the proceedings”.

As, however, was pointed out by Ms Scott, Jones is by no means on all fours with the case before me. In Jones, an All Wales Special Review Panel (or “AWSRP”), whose role was to make recommendations to local health boards on eligibility for fully-funded care and whether reimbursement should be made, had concluded that Mr Jones was not eligible during the relevant period. That meant that it was “clear that the claimant cannot succeed without establishing that the AWSRP erred in assessing [Mr Jones] as entitled to continuing NHS care only from 13 November 2005” and the complaints made of the AWSRP were “central, explicit and suitable for determination by judicial review” (see paragraph 29). It could, moreover, be inferred (see paragraph 30) that:

“upon the claimant’s case, the decision of the AWSRP was either illegal (being based on irrelevant considerations) or irrational (because it was inconsistent with the only responsible conclusion that could have been reached)”.

In the end, I have concluded that Mr Richards should be permitted to pursue in the present proceedings the restitutionary claim that he advances. He is asserting a private law claim, albeit one that raises a question as to whether the defendants have performed public law duties, and the claim does not, it seems, involve any allegation that the defendants have failed to perform their statutory duty to assess and determine Mr Richards’ section 117 needs. Further, while CPR 54.3 now allows “restitution” to be claimed within judicial review applications, such an application still cannot be for restitution alone (see CPR 54.3(2)) and yet Mr Richards’ concern is to obtain financial redress rather than any other relief. It is, moreover, far from clear that a private law claim for restitution such as Mr Richards is bringing should be subject to the strict time limits applicable to judicial review applications rather than the limitation periods laid down for private law claims generally.

The defendants have not demonstrated that Mr Richards cannot have a restitutionary claim against them. I consider, moreover, that Mr Richards should be permitted to pursue in the present proceedings the claim that he advances. I shall not, therefore, accede to the defendants’ application.