QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| MR MALCOLM MORGAN JONES
(on behalf of the estate of Mr EVAN JONES in his own capacity)
|- and -
|(1) POWYS LOCAL HEALTH BOARD
(2) NEATH PORT TALBOT LOCAL HEALTH BOARD
MLM Cartwright) for the Claimant
Mr Richard Gordon QC and Mr Robert Weir (instructed by Hugh James Solicitors) for the Defendants
Hearing dates: 21 - 22 October, 2008
Crown Copyright ©
The Honourable Mr Justice Plender:
(i) The Defendants should have assessed the deceased for his entitlement to continuing NHS healthcare periodically and, in particular, following those occasions when he was admitted to hospital; but no such multi-disciplinary assessment was made during the relevant period.
(ii) Had the Defendants assessed the deceased's entitlement during the relevant period, the first Defendant would have applied the Iechyd Morgannwg Health Policies and Eligibility Criteria ("the 2001 criteria"); and the Second Defendant would have applied the Neath Port Talbot Local Health Board Policies and Eligibility Criteria for NHS Continuing Health Care ("the 2003 criteria"). Following the deceased's death the Second Defendant's policy document was updated in April 2006, the new document ("the 2006 guidance") being the Mid and West Wales Regional Joint Implementation Plan for Continuing NHS Health Care.
(iii) When the deceased's case was assessed by the AWSRP the latter used, in addition to the 2001 and 2003 criteria, the Dyfed Powys Health Authority Eligibility criteria. "It is the claimant's case that the Dyfed Eligibility criteria are of no application to this case [... ] and the Defendants should have complied with the 2006 guidance throughout the relevant period. "
(iv) Had the Defendants established, as they should have done, that the deceased was entitled to continuing NHS healthcare, the Defendants would have funded the deceased's care home fees throughout the relevant period. In that event the deceased would not have been required to enter into a contract with the nursing home and subsequently with the council to pay for/towards the cost of the nursing home fees and the Claimant would not have had to pay top up fees. The Claimant says that he and the deceased are entitled to restitution of the fees paid since they were paid under a mistake induced by the Defendants' failure to conduct any multi-disciplinary assessment, or paid under duress to ensure that the deceased should remain in the care home, and the Defendants have thereby been enriched at the Claimant's or the deceased's expense.
(v) The Claimant says that he and the deceased are entitled to recover damages for negligence because they relied, and were entitled to rely, on the Defendants to conduct multi- disciplinary assessments to assess the deceased's entitlement to continuing health care; and the Defendants owed to the Claimant or to the deceased a duty of care and acted in breach of that duty so as to cause loss to the Claimant and the deceased.
The Principle in O'Reilly v Mackman
"where a litigant asserts his entitlement to a subsisting right in private law, whether by way of a claim or defence, the circumstance that the existence and extent of the private right may incidentally involve the examination of a public law issue cannot prevent the litigant from seeking to establish his right by action commenced by writ or originating summons. "
"Roy, I would regard as being a case where the plaintiffs' relationship with a public body, whether statutory or contractual, would confer on him conditional rights to payment so that the bringing of ordinary actions to enforce those rights was not in itself an abuse of process. "
"the Revenue has contended that the proper procedure was for Woolwich to seek to challenge its decision not to pay interest by way of judicial review, although it would of course contend that no order should be made on such a review in the present case. I do not accept this. If a claim lies for money had and received, judicial review adds nothing. "
"Since 0'Reilly v Mackman decisions of the House of Lords have made clear that the primary focus of the rule of procedural exclusivity is situations in which an individual's aim was to challenge a public law act or decision. It does not apply in a civil case when an individual seeks to establish private law rights which cannot be determined without an examination of the validity of a public law decision".
The LHB's Submissions
"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 same principle applies (according to Miss Foster) in the present case where continuing health care payments are in issue. Section 3 of the National Health Service Act 1977 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, Miss Foster submits that this is another way of asserting a private law money claim against the Defendants and for the same reason that such a claim will not run in negligence, it will not run in restitution. Even if a cause of action may lie in damages, Miss Foster submits that the court should as a matter of discretion decline jurisdiction.
"Such rights as the Claimants do enjoy sound in public law. It was open to the Claimants to apply to the Administrative Court for an order compelling the relevant authorities to assess Mr Jones senior at the relevant time. Whether through deliberate choice, oversight or erroneous advice (it is not known) they never did so. When the AWSRP in 2007 decided there was a retrospective entitlement to continuing nursing care (paid for out of public funds) for part only of the time claimed, it was open to the Claimants to seek to apply for leave to challenge that conclusion in a judicial review. Similarly they did not do so. "
The Claimant's Submissions
The Dominant Issue in the Claim
The Procedural Consequences
Right of Access to Court