In CP v NE Lincolnshire (Court of Appeal, 3 October 2019), public law proceedings were used to challenge the sufficiency of the funding for a 22-year-old woman, CP, who has complex and multiple disabilities requiring round-the-clock care. JP, her father, acted as her litigation friend.
The council had asserted that the day provision she had benefited from for some years was being provided “for free” by her father from choice, because he had started the charity that operated the service.
The council was described as having “a visceral resistance” to funding the package because they saw JP as profiting. However, the council provided nothing else in lieu, and paid for the transport and the support worker to be there with CP.
By the time of the judicial review hearing, everyone was satisfied that the service counted as education for the purposes of the education, health and care plan, and agreed as to what should be paid going forwards. The agreed budget to pay for her overall needs had doubled from its original level to £720.67 per week.
However, some of the earlier social care plans from the council had failed to state a personal budget at all, and none had set out any breakdown of the figure being offered at any given point.
Therefore, there was a period – before the day service was agreed to be educational – when the fees for the day service had not been covered. So, despite agreement on other fronts, the case continued to a hearing.
The lower court accepted that no payment should be ordered for the early period of unpaid placement fees.
However, the Court of Appeal held that if a council breaches the Care Act 2014, it is acting unlawfully. In this case, it had to pay back what it would have paid towards the person’s care plan had it acted lawfully.
The court characterised the council’s behaviour as “a fruitless rear-guard action” that had lasted 18 months.
This excerpt from LJ Haddon-Cave’s judgment reasserts the seriousness of the matter, concisely and trenchantly:
“A local authority’s statutory duty under s26 of the Care Act 2014 to provide a personal budget to meet a person’s care and support needs is fundamental to the operation of the care and support scheme which the Care Act 2014 underpins.
“In the present case, having found the council in breach of its statutory duties, [the judge in the High Court] should have gone on to hold that the council had acted unlawfully and, accordingly, was liable in principle to compensate CP in respect of any monetary shortfall, in accordance with normal public law principles of legal accountability of public bodies.”
What was argued
The guidance (at paragraph 10.26) deals with the division of responsibilities between a local authority and a carer or parent:
“Local authorities are not under a duty to meet any needs that are being met by a carer. The local authority must identify, during the assessment process, those needs which are being met by a carer at that time and determine whether those needs would be eligible. But any eligible needs met by a carer are not required to be met by the local authority, for so long as the carer continues to do so. The local authority should record in the care and support plan which needs are being met by a carer, and should consider putting in place plans to respond to any breakdown in the caring relationship.”
Where a local authority is required to meet needs, it must prepare a care and support plan.
Under s25(1), a care and support plan:
“(a) specifies the needs identified by the needs assessment or carer’s assessment
“(c) specifies the needs that the local authority is going to meet and how it is going to meet them
“(e) includes the personal budget for the adult concerned.”
The Court of Appeal rejected all of the following arguments by the council:
- It was not social care – it was just a community asset that was provided voluntarily by the family, despite the service provider being an arm’s-length registered charity.
- It was not commissioned by the council and not worth it. The council said it was “little more than empty rooms and a gym”, despite acknowledging internally that it was legally liable to pay for CP’s attendance at the service and two experts saying that CP was benefiting educationally from attendance.
- There was a conflict of interest. CP’s father and litigation friend was “the ‘real claimant’, using the proceedings inappropriately to profit from the claim” since the charity was organised and controlled by him.
- Alternative remedies should have been attempted. The council said CP should have used the complaint system or called for a management or s27 review.
- It was an inappropriate claim for damages for a breach of statutory duty. The council argued this was a misconceived claim for damages to compensate CP for non-provision of funding.
CP’s lawyers submitted that the council’s mid-hearing acceptance of the principle of paying for the future did not make the unlawfulness of earlier plans irrelevant.
The court agreed that the judge should have determined the legality of the Care Act plans, starting with the 2016 plan first challenged.
“The council’s failure when drawing up CP’s support plan dated 11th April 2016 to ensure that CP’s personal budget included adequate payment for her needs, including her weekly attendance at the placement, represented a failure by the Council ab initio to comply with its statutory duties under s26 of the Care Act 2014 … read in the light of the statutory guidance.
“The council had acted unlawfully in failing to comply with its statutory obligations properly to fund CP’s care and needs between 11th April 2016 and 17th November 2017; and, as a result, CP has remained out of pocket ever since.
“The council’s unlawful failure has, therefore, had a continuing effect on CP since her financial position has remained less than it should have been. Accordingly, CP is entitled to compensation to reimburse her.”
Cases for compensation
It will not be in every case where a person who needs services or a third party spends money to make up for the Care Act wrongs on the part of a council.
Sometimes, a person will just go without care and have a worse life. In other cases, relatives will step up, whatever the consequences for themselves, for want of legal awareness.
That choice cannot be said to give rise to a remedy involving restitution of funds without a successful public law challenge as far as we are concerned.
But here is what made this a strong claim – the care plan referred explicitly to the placement, which was therefore knowingly being taken advantage of by the council:
“CP is usually supported by her PA to attend [the service] 9am-3pm 5 days per week … During ‘classroom activities’
… she spends one-to-one time with her PA in a classroom practising previously learned skills and developing new skills, with support. CP is fully supported by her PA at all times whilst she attends … and spends some of the time accessing the community.”
Of course, all assets and strengths- based care planning that includes willing, informal care could be said to give a council knowledge that it is being provided, and is enabling a saving against the real cost of a plan covering total care needs. Where that person making the contribution becomes unwilling and it is not continued, but no challenge to a failure to increase provision under the care plan is even intimated, the service user will be left in need and cannot claim restitution, in our view.
We think that when an informal carer has just “sighed and carried on” providing the care, without realising that they did not have to, there will not be a clear-cut case for restitution either, even if the service user succeeds in a challenge or a complaint later on.
But where a person or their family has paid out money for something that was missing and the necessity for which has long been clearly asserted in writing and the council is shown to have known that, such that it can fairly be said it has been taking the benefit of that provision despite the paying person’s objection or unwillingness, there could be a claim for restitution.
Sometimes, the people who are manoeuvred into stepping up will be close relatives in the same household who could not normally be paid through a direct payment without a further discretionary decision as to necessity for permission. This raises interesting questions of procedure regarding the right remedy to pursue, even if they did make it clear that they were not willing to do it for free.
Where a third party has actually been paid, the claim will be strongest. But, even if the service user has only incurred a liability to pay and no money has changed hands, a reasonable sum for the service is the measure of what the council would have to reimburse, as a matter of both public and private law principle, because of the law of unjust enrichment.
We think that this sort of “quantum merit” claim – a reasonable sum of money to be paid for services rendered or work done when the amount due is not stipulated in a legally enforceable contract – is much better evidenced and determined in private law proceedings where the judges are used to that sort of question, rather than in judicial review.
We think that people in similar situations should refer the council to paragraph 10.86 of the statutory guidance and demand the benefit of the management review that is recommended there. The council can then put right any noncompliance with the legislation without further ado.
That will be especially important in any council where they are running the Care Act process on “three conversations” lines, unless they are documenting the conversations compliantly with the Care Act itself.
What is clear to us is that where expenditure has been the only way a person has coped, there will have to be a challenge or at least a referral to the monitoring officer before a private law claim for the missing funding can be made.
If a rush of public law litigation is to be contained, likely funded on a no-win no-fee basis, monitoring officers will need to engage properly with referrals that identify breaches of the Care Act or they will have to answer, in one arena or another, for failure to discharge their own duties under their own governing legislation.
CP, R (on the Application of) v North East Lincolnshire Council  (EWCA) Civ (EWCA) Civ 1614
Belinda Schwehr is chief executive of legal advice charity CASCAIDr (www.CASCAIDr.org.uk) and owner of the Care & Health Law consultancy. She has been a barrister, solicitor advocate and university law lecturer