[2025] EWHC 1680 (KB)

G1: Amendment. The Appellant submitted that the reasoning in paras. 18-23 of the judgment disclosed that the Judge fell into error. The S.117 amendment was the response to the admission made in the Defence by the Defendant that it was paying for DB’s care and support under its duty imposed by S.117. The Reply contained the Claimant’s response on how properly to interpret the scope of the S.117 duty. The Defendant is clearly going to make submissions on the scope of their responsibilities under S.117 and the Claimant will be making submissions at trial on the scope too. The issue will be: “for DB’s needs, does the S.117 duty cover accommodation and living expenses or not?” In R (Afework) v Camden [2013] EWHC 1637 (Admin), Mostyn J, at paras. 14 and 19 gave guidance on whether the S.117 duty required a Local Authority to pay for accommodation. The duty did cover some types of accommodation in which care and/or medical support is provided. It was arguable that the duty covered the supported living accommodation at Radnor House. The Appellant relied on para.19 of Mostyn J’s judgment in which he ruled as follows:

“19.

I therefore hold that as a matter of law s117(2) is only engaged vis-à-vis accommodation if:

i)

The need for accommodation is a direct result of the reason that the ex-patient was detained in the first place (“the original condition”);

ii)

The requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition; and

iii)

The ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition.”

Further, the Appellant submitted that if the S.117 claim was a new claim or a new cause of action then most of the sums claimed were not statute barred. The hearing took place in August 2024, 6 years before that would be August 2018. A large part of the debt arose after the DWP payments were transferred to the Defendant in 2017-2019. None of those were statute barred.

The Appellant submitted that in any event the new claim arose on the same facts or substantially the same facts as the old claims. These were that all the claims: (1) concerned DB; (2) were based on the scope and level of DB’s medical and care needs supplied by the supported care whilst living at Radnor House at the Defendant’s express request; (3) were based on the Defendant fulfilling its duty under S.117 of the Act which was admitted in the Defence; (4) in all the claims, even without the amended pleading, the parties would be raising submissions on S.117 and in particular the scope of the duty thereunder in relation to the implied terms in the originally pleaded contract claim and in relation to the unjust enrichment claim. No trial Judge would refuse to hear submissions on the scope of relevant Statute. (5) The facts relating to the transfer of BD’s DWP benefits from the Claimant to the Defendant were common. (6) Interpretation of the correspondence between the parties in 2015 was a common issue.

The Appellant submitted that the NHS or Clinical Commissioning Boards were not going to be brought into the claim as a result of the amendment. The claim was against the Defendant who admitted they were acting under the duty. They would have copies of any relevant decision documents which they made.

G2: Relief from sanctions. The Appellant accepted that the Judge’s decision on limbs one and two of the test in Denton were unassailable. The breach was serious in itself and the explanations were not good reason to avoid sanctions altogether. The issue in the appeal related to limb 3, namely consideration of all the circumstances of the case and the overriding objective.

The main point which the Appellant made was that the breach had made no difference to the course of the action and the Judge was wrong to find that it had. Various applications by the Defendant, for instance to strike out the claim, and various orders relating to joining DB, then assessing his capacity and then deleting him from the action, had all delayed the course of the action. The secondary point which the Appellant made was that no CCMC hearing had taken place because of the other applications. That was still to come, so the late filing did not even delay the CCMC. The third point made was that- if the costs budget had been filed on 18.1.2021 it would have been updated at least once if not twice by the date of the relief hearing because of the multiple applications and due to joining DB and then deleting him as a party. The Appellant submitted that an important factor in the exercise of the Judge’s discretion at limb 3, was the impact of the breach on the litigation and there had been no impact, save that one part of the hearing on 12.8.2024 dealt with that application, amongst 3 other applications.

The Appellant submitted that the Judge misled himself over British Gas and Diriye. Neither case provided much assistance and both were decided on their own facts. The lack of promptness in the application for relief, which the Judge held was 4 months, did not disrupt the action at all.