Section 117 Mental Health Act 1983 after-care: A claim for restitution against two public authorities for payment of after-care services was a private law claim

Wednesday 20 December 2017

Richards v Worcestershire County Council & Anor [2017] EWCA Civ 1998 (12 December 2017) 

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Richards v Worcestershire County Council & Anor [2017] EWCA Civ 1998 (12 December 2017)


This was an appeal brought by Worcestershire County Council and South Worcestershire Clinical Commissioning Group (“the appellants”). Mr Richards had suffered a head injury in a road traffic accident and obtained approximately £2 million in damages. These funds were managed by a deputy given Mr Richards' lack of capacity to manage his affairs. Mr Richards had been detained in hospital under s 2 and 3 of the Mental Health Act 1983, but discharged himself against medical advice. Post-discharge, he was under medical supervision and received after-care services from the appellants. He was moved by his deputy, initially to a care home and then to his own home with full-time care. Mr Richards paid the costs himself and made a claim for restitution on the basis that the appellants had a duty under s.117 of the Mental Health Act 1983 to provide the required services. The appellants' position was that he had chosen to arrange his own placement and care services, which went beyond those which they considered necessary to meet his needs. The appellants made a strike-out application on the basis that it would be contrary to public policy to permit a challenge other than by judicial review to a decision by a public authority in respect of public law rights. This was refused. The High Court held that it was arguable that the appellants had been unjustly enriched by the failure to provide the services, and that Mr Richards did not have to pursue his claim by way of judicial review.

The appellants appealed on the principal issue as to whether Mr Richards was entitled to proceed under CPR Pt 7 rather than by way of judicial review.


On dismissing the appeal the Court of Appeal; held and addressed the following issues:

Firstly should the claim be struck out as contravening the exclusivity principle laid down in O'Reilly v Mackman? And giving the answer 'no'. The Court reasoned that the exclusivity principle established in  O'Reilly, together with its complex web of exceptions, had survived into the present century. The principle applied where the claimant was challenging a public law decision or action and (i) the claim affected the public generally; or (ii) justice required for some other reason that the claimant should proceed by way of judicial review. However, the Court further held that principle should not become a general barrier to citizens bringing private law claims in which the breach of a public law duty was one ingredient. In this instant case, the appellants had no legitimate objection to Mr Richards proceeding under CPR Pt 7. It was a private law claim, even though it was based on s.117. It had no wider public impact. Justice did not require for any other reason that Mr Richards should proceed by way of judicial review. Further if the exclusivity principle was allowed to block the instant claim, it would become an instrument of injustice.

The Court held that on the issue damages for unjust enrichment or restitution on the basis of the appellants' non-compliance with s.117 that a patient who received inadequate after-care services could not claim damages for breach of statutory duty, (see Clunis v Camden and Islington HA [1998] Q.B. 978). However, Mr Richard’s case was the opposite of that scenario. He claimed that he had received adequate after-care services, but that the appellants should pay for these services. The appellants' argument was that they had not agreed to the arrangements and had not agreed to pay for them. The appellants considered the services the deputy arranged were more extensive than Mr Richards needed. They argued that the deputy was fully entitled to use Mr Richards' damages in that way, as the fund was there to be spent for his benefit, but that they had no liability to pay for them. That argument might turn out to be ultimately successful, but it raised hotly contested questions of fact which could not be resolved on a strike-out application.

The transcript is available here: Richards v Worcestershire County Council & Anor [2017] EWCA Civ 1998 (12 December 2017) 


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