In this important High Court test case involving two Welsh Local Health Boards, the Court has ruled that the Solicitors, Hugh James, cannot bring a novel action based on negligence and restitution where there is a dispute as to eligibility for continuing healthcare. This test case decision, in which Morgan Cole acted for Neath Port Talbot Local Health Board, means that a large number of claims brought against LHBs and PCTs by Hugh James will be stayed as an abuse of process.

The decision will reduce the risk of potential challenges to decisions made by LHB’s and their appeals panel on eligibility for continuing healthcare.

The Parliamentary Health Service Commissioner for England, Ann Abraham commissioned a report on the funding of NHS continuing care which identified that in some of the cases that she had examined, patients were inappropriately refused funding for continuing NHS care. Health authorities in England and Wales were therefore required to put in place systems to identify and review cases where reimbursement might be due to families or individuals arising from deficiencies in the original assessment process.

In Wales, in February 2004 the Powys LHB issued advice to all other LHBs regarding the management of requests for retrospective review of continuing care status.   The report stated there would be established an All Wales Special Review Panel ("AWSRP"). The AWSRP undertakes cases at the request of LHBs and the AWSRP is authorised to make recommendations to the LHB about eligibility for fully funded continuing NHS care; the date when the case first becomes eligible; and whether reimbursement should be made and from what date. 

The Claimant, in his own capacity and as administrator of the estate of his late father Mr Evan Jones, brought an action, instituted by writ, for restitution of the sums paid by his father to the Cwrt Enfys nursing home in the final six years of his life or for damages for the same amount.  The Claimant alleged that throughout the period from his father’s admission to the nursing home to his death his father was entitled to free home care and accommodation. He also alleged that the Defendants should have conducted a multidisciplinary assessment of the deceased’s entitlement on his admission to the nursing home or subsequently. He claimed that if this had been done the deceased would have been found to be entitled to free care and accommodation and the Defendants would have paid for it; but the Claimant or his father paid for that care and the Claimant  therefore was entitled to an appropriate refund. The claim was expressed as an "action for restitution or negligence based on private law". Had it been successful then it may have opened the floodgates for a series of challenges across the UK.  Many cases were in the pipeline.

The Defendants denied that Mr Jones was entitled to receive free home care and accommodation in the period at any time prior to 13 November 2005; and relied on a decision made by the AWSRP recommending that the Claimant should receive reimbursement of the fees paid only from 13 November 2005 until his father’s death. Further the Defendants denied that the Claimant was entitled to mount a collateral challenge to the decisions and actions of the Defendants and/or to the decision of the AWSRP by means of the proceedings. The Defendant claimed that any such challenge ought to have been made by way of judicial review, or alternatively by means of a complaint to the Public Services Ombudsman for Wales, and the proceedings therefore were an abuse of process.

The Defendant made an application to the court to strike out the claim for abuse of process and invited the court to stay the proceedings under CPR 1.4(2)(e) in order that the Claimant could pursue his claim for reimbursement by way of complaint to the Public Services Ombudsman for Wales, the specialist regime in place to deal with such complaints.

Both parties sought to rely on the principles of administrative law derived from the line of cases beginning with O’Reilly v Mackman, [1983] 2 AC 237.  The main principle to be deduced from O’Reilly v Mackman, is that as a general rule it is an abuse of process for a person seeking to establish that a decision or action of a person or body infringes rights which are entitled to protection under public law, to proceed by way of an ordinary claim rather than by judicial review. Where, on the other hand, a claimant has a private law right, he may, without any abuse of process, enforce that right by ordinary action even though the proceedings involve a challenge to a public law act or decision. The question for the court to determine therefore was whether, on proper analysis, the Claimant’s case amounted to a challenge to a public law action or decision, rather than an attempt to assert some private right which could not be determined without an examination of the validity of a public law decision.

The Defendants submitted that the proceedings, properly examined, amounted to a challenge to a public law action or decision. In so far as the negligence claim was concerned, the Defendants submitted that it is established by O’Rourke v LB Camden, [1998] AC 188 that no action lies against the Defendants in the circumstances of the case.  In O’Rourke Lord Woolf stated at 752j "I regard 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".  Although that statement was made in the context of a private law action claiming housing grants, the Defendants submitted that the same principle applies in the present case where continuing health care payments are in issue. Section 3 of the National Health Service Act 1997 has been held not to give rise to a private law duty of care to an individual on the part of the health body: Coughlan and Grogan. So far as the restitutionary claim is concerned, the Defendants submitted that it was another way of asserting a private law money claim against the Defendants and for the same reason that such a claim would not run in negligence, it would not run in restitution.

The Claimant submitted, on the basis of Clark v University of Lincolnshire and Humberside, [2000] 1 WLR 1988, that what was likely to be important was not whether the right procedure had been adopted but whether the protection afforded by judicial review rules had been flouted in circumstances which are inconsistent with the just conduct of the proceedings in accordance with CPR Part I (39).  The Claimant further submitted that there was a proper basis for bringing a private law action because it was not a challenge to a decision of the AWSRP but an attempt by the Claimant to vindicate his rights arising from the failure of the Defendants to assess whether his father was entitled to continuing health care. The Claimant submitted that his case depended on issues of fact which were not agreed and for which judicial review was as ill-suited as the civil courts were appropriate. 

The Court held that the proceedings should be struck out as an abuse of process. 

The Court held that it was clear that the Claimant could not succeed in his civil action without establishing that the AWSRP erred in assessing that his father was entitled to continuing NHS care only from 13 November 2005 until his death. The right of action on which the Claimant relied upon was not separate for any alleged error of the AWSRP. Furthermore the remedy the Claimant claimed was precisely the same remedy that would have been awarded by the AWSRP if it had reached the decision that the Claimant says it ought to have reached.

The court held that proceedings by writ rather than by application for judicial review were the inconsistent with the just conduct of the proceedings. In reaching its judgment the court considered whether the institution of proceedings by writ rather than by application for judicial review deprived the LHBs of protection that they would have enjoyed in an application for judicial review. The Judge stated that the LHBs would have been deprived of two elements of protection guarantees to them by judicial review. One was the stringent time-limit in judicial review proceedings and the second was the requirement for permission. Furthermore the judge commented that judicial review was well suited to make determinations of the issues the Claimant raised and that it has always been the case that judicial review is suitable for determination of claims such as those made by the Claimant about errors of the AWSRP. On an application for judicial review a Claimant can, where appropriate, correct an error made by the AWSRP and cause it to reconsider the claim on the correct basis.

The Judge commented that he was far from persuaded that a civil action in the High Court is the optimum way of resolving such disputes. The AWSRP is a specialist body, experienced in the determination of the needs of a patient for continuing health care. This makes it well placed to distinguish between those services which should be supplied by the Secretary of State for Health and those that are "merely ancillary to the provision of accommodation and of a nature which might be expected to be supplied by a local authority whose duty it is to supply social services".  By contrast the High Court exercises a general jurisdiction and when confronted with such cases it must choose between the opinions of experts. The AWSRP contains members with clinical experience; the High Court is not so composed.  The AWSRP is able to dispose of cases more rapidly and much more cheaply than the High Court. The imposition of very substantial costs on a local health board is liable to reduce the sums available to it for clinical purposes; and the threat of such costs is liable to cause it to compromise cases that it does not otherwise consider meritorious.

It is clear therefore that cases which challenge Local Health Board’s assessment for continuing healthcare eligibility will be dealt with by way of judicial review. Such proceedings amount to challenges to a public law actions or decisions and should not be resolved by way of a civil action.

Tessa Shellens can be contacted by telephone on 029 2038 5924 or by email.