Aftercare services and restitution claims

Jonathan Auburn analyses an important Court of Appeal ruling on restitution claims for a failure to pay for aftercare services.

If an individual has in years past paid him or herself for mental health aftercare services, which should have been paid for by public bodies, does that person have a valid restitution claim to be refunded the monies spent?

The Court of Appeal in Richards v Worcestershire County Council [2017] EWCA Civ 1998 has upheld the decision of Newey J at first instance, that a claimant can bring a private law action against public authorities under Part 7 of the CPR, when it is alleged that:

• the public authority was responsible for providing mental health aftercare services to the claimant pursuant to section 117 of the Mental Health Act 1983;
• aftercare services were received by the claimant; and
• those services were paid for by the claimant themselves.

Such a claim would be brought in restitution, on the basis that the payments made by the claimant served to relieve the public authority of liabilities which they ought to have been bearing under section 117.

In refusing to strike out the claim, Jackson LJ cleared from the claimant’s path two key principles that might have blocked his claim. The first was the ‘procedural exclusivity’ principle in O’Reilly v Mackman [1983] 2 AC 237. The second was the principle from X (Minors) v Bedfordshire County Council [1995] 2 AC 663 that breaches of statutory duty do not normally give rise to a private law cause of action.

As to procedural exclusivity, Lord Diplock held in O’Reilly that where a person sought to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law, it would generally be an abuse of process to permit that person seeking to bring a private law claim, instead of a claim for judicial review.

Jackson LJ reviewed the authorities since the decision of O’Reilly in 1983, and noted that many exceptions to this procedural exclusivity have been recognised. He derived from the authorities two general propositions as to its application (see his paragraph 65):

(i) Procedural exclusivity applies where the claimant is challenging a public law decision or action and (a) his claim affects the public generally or (b) justice requires for some other reason that the claimant should proceed by way of judicial review.

(ii) Procedural exclusivity should be kept in its proper box. It should not become a general barrier to citizens bringing private law claims, which involve breach of a public law duty as one ingredient.

Applying these propositions to the case at hand, the Court of Appeal held that a private law claim could be brought. While the restitution claim was based on the failure of the defendant to carry out a public law duty, the claim had no wider public impact, and there were no other reasons to insist that the claim be brought only by means of judicial review. The court went as far as to say that if procedural exclusivity were allowed to block the claim, it would “become an instrument of injustice”.

The other principle which the Court of Appeal cleared from the claimant’s path in this matter was that set out in X (Minors) v Bedfordshire, where Lord Browne-Wilkinson stated that “in the ordinary case a breach of a statutory duty does not, by itself, give rise to any private law cause of action. However, a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of a duty.” This principle had been applied in the case of Clunis v Camden and Islington Health Authority [1998] QB 978 to section 117, and it had been held that where the section 117 duty to provide aftercare is not fulfilled, because services are not provided or those provided are inadequate, this does not give rise to a private law cause of action. Jackson LJ agreed with the analysis in Clunis.

Nevertheless, the Court of Appeal went on to distinguish the case at hand from Clunis. There was a fundamental difference between a claim that services had not been provided or had been delivered badly, which was affected by the approach in X v Bedfordshire, and a claim that services had been received but the defendant had not paid for them, at the claimant’s expense. The latter form of claim could be brought.

The Court of Appeal has made it clear that restitution claims against public authorities are possible, where aftercare services under section 117 have been provided, but have been paid for by the claimant. Richards v Worcestershire County Council is not the only such claim of its type. It will be interesting to see how this category of claim develops in the future.

Jonathan Auburn is a barrister at 11KBW. He can be contacted on 020 7632 8500 or This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared on the set's Community Care Law Blog.