A, R (on the application of) v North Central London Integrated Care Board [2025] EWCA Civ 485

[2025] EWCA Civ 485Case No CA-2024-002465
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2024] EWHC 2682 (Admin)Date 16 April 2025
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice MacDonald
Before
LADY JUSTICE KINGLORD JUSTICE MALESLADY JUSTICE WHIPPLE
Between
R (on the application of A, by his litigation friend B)AppellantNorth Central London Integrated Care BoardRespondentLondon Borough of HaringeyInterested Party
Ian Wise KC and Oliver Persey (instructed by Miles and Partners LLP) for AppellantDavid Lawson and Jake Rylatt (instructed by Hill Dickinson LLP) for RespondentSally Bradley (instructed by Haringey Council Legal Services) for Interested PartyHearing Hearing date: 6 March 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 16 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]The Appellant is a child of 12. He suffers from a genetic disorder which renders him severely disabled, requiring 24 hour care. He is eligible for children and young people’s continuing care under the NHS National Framework for Children and Young People’s Continuing Care 2016 (the “National Framework”). The Respondent is the North Central London Integrated Care Board, which is responsible for commissioning A’s continuing care. Integrated Care Boards have taken over the role previously performed by Clinical Commissioning Groups or “CCGs”. The Respondent originally contracted with a third party supplier, Enviva, for A’s care. But the Respondent became dissatisfied with Enviva’s services and terminated Enviva’s contract on 9 July 2024, engaging a new third party supplier called Nursing Direct to provide care services to A from 10 July 2024. A’s parents were dissatisfied with Nursing Direct. They wanted Enviva to carry on providing care for A. They declined the services of Nursing Direct and continued to engage Enviva to look after A at their own cost. The situation remained ongoing at the date of the hearing of this appeal, at which time A’s care was still being provided by Enviva on a privately-funded basis.[2]A’s disabilities are profound and his care needs are substantial. A’s mother B has at times felt very strained by the demands of caring for him. It is clear that his parents have always acted in what they believe to be his best interests. It is also clear that the Respondent has at all times endeavoured to provide an appropriate care package for A and has also acted in what it believes to be A’s best interests. The Court was told that a new care package, funded by the Respondent, was due to commence on 17 March 2025, which was shortly after this appeal was heard. It is to be hoped that A’s parents and the Respondent will now be able to re-establish a constructive working relationship, based around what is best for A.[3]A is a protected party who is represented for litigation purposes by his mother and litigation friend B. He brought a judicial review against the Respondent, advancing three grounds of challenge. The first ground was that the Respondent was in breach of its obligation under s 42(3) of the Children and Families Act 2014 (the “2014 Act”) to ensure that there was a lawful health care plan in place in relation to him. The second was that the Respondent had acted irrationally in terminating Enviva’s contract on 9 July 2024. The third was that A’s parents were entitled in restitution to repayment of the costs incurred by them after 10 July 2024. The London Borough of Haringey was named as the Interested Party because it maintains the Education, Health and Care Plan (“EHC Plan”) for A, pursuant to which A’s health care needs are specified, but the Interested Party has played no active part in this litigation.[4]On 20 September 2024, MacDonald J heard A’s claim for judicial review as a “rolled up” judicial review claim, so that the application for permission was deferred to the substantive hearing of the claim. By a judgment dated 23 October 2024, he granted permission for judicial review on the first ground, and found in A’s favour on that ground, holding that the Respondent had breached its statutory duty by failing to arrange for an updated health care plan for A. By way of remedy for that breach of statutory duty, he made a mandatory order requiring the Respondent to arrange a health care plan for A by 27 November 2024. MacDonald J also granted permission for judicial review on the second ground, but dismissed that ground of challenge, holding that the Respondent had not acted irrationally in terminating Enviva’s contract on 9 July 2024. There is no appeal against that part of MacDonald J’s judgment (permission for appeal having been refused). MacDonald J held that A’s third ground was a claim to a remedy only and that claim failed because A had suffered no loss, rather it was his parents who had met Enviva’s costs and it remained open to them to pursue a civil claim in the county court.[5]MacDonald J ordered the Respondent to pay two thirds of A’s costs of bringing the claim, to be subject to detailed assessment on the standard basis if not agreed.

Issues on Appeal

[6]A now appeals the judge’s conclusion on the third ground, pressing the claim in restitution afresh. Permission was granted by Dingemans LJ at an oral hearing on 22 November 2024.[7]In response to A’s appeal, the Respondent cross-appealed the judge’s finding on the first ground (relating to the absence of a health care plan) on the basis of fresh evidence which the Respondent says would and should lead to a different outcome on ground 1. Permission for the cross-appeal was granted by Dingemans LJ on 20 January 2025, with the question of admissibility of the fresh evidence deferred to this Court.[8]In response to the Respondent being granted permission to cross-appeal, A served a “Notice to Affirm” by which A seeks to uphold the judge’s conclusion that the Respondent was in breach of duty in failing to arrange for a health care plan, the subject of ground 1, for further or different reasons.[9]The logical order of the issues raised in this appeal is:(a) The Respondent’s cross-appeal on ground 1, seeking to challenge the judge’s conclusions on ground 1, relating to the health care plan.(b) A’s Notice to Affirm the judge’s conclusions on ground 1, relating to the health care plan, for further or different reasons.(c) A’s appeal on its claim for restitution, ground 3.

Factual Background

[10]In light of the judge’s dismissal of A’s ground 2, in relation to which there is no appeal, much of the detail of this case, covered below, now forms part of the background only. The facts are set out very fully by MacDonald J at paras 6-41 of his judgment, in terms which are not challenged. I will summarise the key facts in order to provide context for the discussion which follows.[11]A suffers from a rare SLC13A5 Citrate Transporter Disorder. He has epilepsy and is at risk of sudden death from that condition. He suffers periods of atonia which place him at risk of suffocation. He has a severe learning disability. He has communication and mobility disabilities.[12]A has been in receipt of continuing care since 25 June 2015. The Respondent has been the responsible commissioner of that care since July 2022 when it took over responsibility from the CCG. Clinical case management is provided by the Whittington Health NHS Trust’s Children’s Continuing Care Team (“Whittington Health”) which is responsible for carrying out A’s annual NHS Continuing Care Review in line with the National Framework and the Respondent’s Children’s Continuing Care Policy.[13]From 2017, A’s care has been provided by a private agency called Enviva. It is the Respondent’s expectation that third party providers, such as Enviva, will deliver care to children having continuing care in light of a health care plan, which is the responsibility of the third party provider to develop in collaboration with the family and the professional team around the child, keeping that health care plan up to date, and sharing it with the Respondent and the Whittington Health case management team.[14]Enviva produced a health care plan dated 13 June 2023 (the “June 2023 Health Care Plan”). This is a detailed plan setting out information under various headings:(i) History, Social and Communication;(ii) Health;(iii) Nutrition;(iv) Personal Care;(v) Mobility, Moving and Handling;(vi) Daytime and Sleep Routine; and(vii) Appendix containing various plans (eg seizure management plans) and manuals (eg for the suction machine used to clear A’s saliva). That was the only completed health care plan in existence at the time of the hearing before MacDonald J.[15]In June 2023, an NHS Continuing Care Review commenced. On 15 June 2023, the Children’s Continuing Care Assessment and Decision Support Tool (“DST”) was completed. It recommended that the package of care then being provided to A, which was 61 hours of care per week paid for by a personal healthcare budget (“PHB”), should be maintained. On 21 June 2023, the Respondent’s Continuing Care Panel (the “Panel”) met to discuss the DST and its recommendations. The Panel concluded that the health care package for A should comprise a PHB of 63 hours a week of one to one care with a second health care assistant present for the same number of hours, making a total package of 126 hours per week. The Panel added provision for social care and education in addition.[16]On 28 June 2023, the Panel sent its recommendations to A’s parents who were already pursuing an appeal to the First Tier Tribunal (Special Educational Needs and Disability) in relation to educational provision for A. On 11 July 2023, the FTT allowed the parents’ appeal against the Respondent’s recommendations, making a non-binding recommendation that A should be attended by two Band 4 carers at all times, together with increased attendance during the summer holidays and with regard to social care. A Band 4 carer has a high level of experience and knowledge of complex seizures and challenging behaviours and is paid at a higher rate to reflect that expertise; by contrast, a health care assistant does not possess such a high level of skill or experience, and is paid at a lower hourly rate.[17]On 24 July and 8 August 2023, the Panel met to discuss the FTT’s recommendations. On 15 August 2023, the Panel decided that it would depart from the FTT’s non-binding recommendations in relation to continuing care on grounds that there were no clinically assessed needs that supported an increase in the hours to be provided by carers (as opposed to health care assistants) to the level recommended. The Panel accepted that the package would need reviewing after three months.[18]On 23 November 2023, the Interested Party issued an amended EHC Plan. The Respondent agreed to the insertion of a health care plan in Section G of that EHC Plan, which health care plan it intended Enviva, the commissioned care provider, to develop.[19]Thus the Panel’s revised package of care doubled the care afforded to A to 126 hours a week. Enviva struggled to find additional carers and assistants to meet that increased requirement and B was frequently called on to provide A’s care. B reported these difficulties to the Respondent in August and September 2023. In September 2023, the Respondent commissioned Practical Staffing to provide personnel to work alongside the Enviva carers and to fill the gaps in A’s cover. Practical Staffing is an employment agency which is not registered with the Care Quality Commission (“CQC”) to provide personal care or nursing.[20]During the later months of 2023, B experienced many problems with Enviva and regularly complained to the Respondent, requesting a new provider. The Respondent investigated alternative providers with a view to moving A’s care away from Enviva. Meanwhile, in November 2023, the Respondent took a decision not to commission employment agencies to provide continuing care but instead to use only CQC-registered providers.[21]In January 2024, the Respondent discussed with B two alternative care providers as potential replacements for Enviva. B consented to the Respondent progressing discussions with one of them, REACH, but for various reasons, time passed without REACH conducting a full assessment of A’s needs, and meanwhile the position with Enviva deteriorated, with Practical Staffing providing increasing amounts of A’s care.[22]Until 1 April 2024, Enviva was paid by B using her PHB. On 1 April 2024, the Respondent took over the Enviva contract in full and commissioned A’s care directly. It became apparent to the Respondent that Enviva was not up to date on its invoicing of B, and that Practical Staffing was providing a nurse and a Band 4 carer for many shifts rather than carers and health care assistants, as the Panel had decided was appropriate.[23]On 3 May 2024, the Respondent served notice of termination of contract on Enviva. The Respondent intended that REACH would take over A’s care package from 27 May 2024. A multi-agency meeting took place on 9 May 2024 to plan the transition to REACH. The amount of care was increased to 168 hours per week to allow for 12 hour shifts, as requested by the parents. However, as at 27 May 2024, Enviva was still providing care to A. At a meeting on 30 May 2024, B said she had not agreed to REACH taking over A’s care and she was concerned about having a single provider, given the problems experienced with Enviva. On 10 June 2024, a further transition meeting took place, at which B reiterated her concerns about REACH and requested the Respondent to rescind its notice of termination of the Enviva contract. By this point, Enviva was only providing 11 hours’ of the total 168 hours’ care per week and the remainder was being provided by Practical Staffing.[24]On 11 June 2024, the Respondent decided to maintain its termination of Enviva’s contract and wrote to B telling her that the arrangements with Enviva would end on 9 July 2024. REACH agreed to work alongside staff from Practical Staffing during the transition period to ensure minimal disruption. B expressed concerns about the suitability of carers and assistants put forward by REACH on grounds that they were not highly skilled. On 21 June 2024, B notified the Respondent that she was not willing to work with REACH. At around the same time, the Respondent received communications from various professionals involved in A’s care raising concerns about B’s physical and emotional health and requesting a two week pause in all communications with the parents.[25]Faced with B’s refusal to work with REACH, the Respondent looked for a different provider. It identified Nursing Direct, an organisation used by the Respondent to provide care to some of its most complex patients. On 25 June 2024, Nursing Direct confirmed that it could provide A’s care package with immediate effect. In the early days of July 2024, there were difficult exchanges between A’s parents and the Respondent. On 4 July 2024, B asked again for the notice of termination of Enviva’s contract to be rescinded.[26]The Interested Party convened a strategy meeting on 5 July 2024. At that meeting, the Respondent relayed that, in light of the problems which had been experienced, it was not possible to rescind the notice of termination of Enviva’s contract. At the meeting, it was agreed that information about A should be shared with Nursing Direct in A’s best interests, and Nursing Direct should be asked to mobilise the care package from 10 July 2024. A’s parents were invited to a meeting but they did not take up that invitation. On 8 July 2024, the Interested Party issued care proceedings under the Children Act 1989.[27]On 10 July 2024, a nurse and a carer from Nursing Direct attended A’s home. B’s evidence is that the nurse and carer did not know A’s name and did not have Enviva’s care plan and they knew nothing of A’s needs. On 11 July 2024, B notified the Respondent that the family would be privately contracting with Enviva and Practical Staffing to maintain A’s care package and that Nursing Direct should not come to the family home. The Respondent therefore told Nursing Direct not to attend further. Since that date, A’s parents have been funding A’s care, provided by Enviva and Practical Staffing, at a cost of approximately £10,000 per week. The Interested Party has not pursued the care proceedings under the Children Act 1989 and A remains in the care of his parents.

Legislative Framework

[28]Section 37 of the Children and Families Act 2014 provides for EHC Plans, as follows: “37 Education, health and care plans(1) Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan— (a) the local authority must secure that an EHC plan is prepared for the child or young person, and (b) once an EHC plan has been prepared, it must maintain the plan.(2) For the purposes of this Part, an EHC plan is a plan specifying— (a) the child's or young person's special educational needs; (b) the outcomes sought for him or her; (c) the special educational provision required by him or her; (d) any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs; (e) in the case of a child or a young person aged under 18, any social care provision which must be made for him or her by the local authority as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970; (f) any social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs, to the extent that the provision is not already specified in the plan under paragraph (e).(3) An EHC plan may also specify other health care and social care provision reasonably required by the child or young person.(4) Regulations may make provision about the preparation, content, maintenance, amendment and disclosure of EHC plans.(5) Regulations under subsection (4) about amendments of EHC plans must include provision applying section 33 (mainstream education for children and young people with EHC plans) to a case where an EHC plan is to be amended under those regulations.” (a) the local authority must secure that an EHC plan is prepared for the child or young person, and (b) once an EHC plan has been prepared, it must maintain the plan. (a) the child's or young person's special educational needs; (b) the outcomes sought for him or her; (c) the special educational provision required by him or her; (d) any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs; (e) in the case of a child or a young person aged under 18, any social care provision which must be made for him or her by the local authority as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970; (f) any social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs, to the extent that the provision is not already specified in the plan under paragraph (e).[29]Regulation 12 of the Special Educational Needs and Disability Regulations 2014 (SI 2014/1530) requires the EHC Plan to set out in section G any health care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having special educational needs. Pursuant to rule 12(2), the health care provision specified in the EHC Plan must be agreed by the responsible commissioning body, in this case the Respondent.[30]With respect to the provision of education and health care under the EHC Plan, s 42 of the 2014 Act provides as follows:
“42 Duty to secure special educational provision and health care provision in accordance with EHC Plan (1) This section applies where a local authority maintains an EHC plan for a child or young person. (2) The local authority must secure the specified special educational provision for the child or young person. (3) If the plan specifies health care provision, the responsible commissioning body must arrange the specified health care provision for the child or young person. (4) “The responsible commissioning body”, in relation to any specified health care provision, means the body (or each body) that is under a duty to arrange health care provision of that kind in respect of the child or young person. (5) Subsections (2) and (3) do not apply if the child's parent or the young person has made suitable alternative arrangements. (6) “Specified”, in relation to an EHC plan, means specified in the plan.”
[31]As can be seen, s 42(3) places a mandatory duty on the responsible commissioning body – the Respondent in this case - to arrange the health care provision specified in section G of the EHC Plan. Issue 1: the Respondent’s cross-appeal on ground 1 The Judgment Below

Issue 1: the Respondent’s cross-appeal on ground 1

[32]As noted above, the only health care plan in existence at the time of these events was the one developed by Enviva dated 13 June 2023. That pre-dated the June 2023 continuing care review, the July FTT decision, the August Panel conclusion and the November 2023 updated EHC Plan.[33]A’s first challenge in the judicial review related to the Respondent’s failure to maintain an up to date health care plan. A argued that the Respondent was under an absolute and non-delegable duty to arrange a health care plan, pursuant to s 42(3) of the 2014 Act. The Respondent resisted this challenge on the basis that it was entitled to, and did, leave the creation of the updated health care plan to Enviva but Enviva had failed to produce an updated health care plan; but further and in any event, that there was a health care plan in place at all material times, namely the one dated 13 June 2023, which was sufficient to discharge the Respondent’s statutory obligation, even if that plan was out of date.[34]The judge was not persuaded by the Respondent’s submissions. He concluded:
“69. As recognised by the Defendant, s.42(3) of the 2014 Act is in mandatory terms. It imposes an absolute and non-delegable duty on the Defendant to arrange the specified healthcare provision, being the healthcare provision specified in Section G of the EHC plan. It is not a “best endeavours” obligation (see R (L) v Hampshire County Council [2024] EWHC 1928 (Admin) at [42]). Within this context, a review process having taken place and been concluded, I am satisfied that it was not sufficient to fulfil its mandatory duty under s.42(3) of the 2014 Act for the Defendant to rely on a care plan that it concedes was outdated and which predated the review process that led to the stipulation for a health care plan in Section G of A’s EHC plan dated 23 November 2023. Rather, it was reasonable to expect that the Defendant would arrange for a health care plan that reflected the outcome of the comprehensive, multidisciplinary review process that commenced in June 2023 and concluded in the finalised EHC plan in November 2023. Whilst the Defendant seeks to demonstrate that it made sufficient efforts to arrange a health care plan by seeking an updated health care plan from Enviva, in my judgment the Defendant did not take reasonable steps in this regard. Although there were clearly difficulties with Enviva, I am not satisfied that a request for an updated care plan first made in May 2024, five months after the conclusion of the review process and finalisation of the EHC plan, and then only at a time when thought was being given to terminating the contract with Enviva, met the demands of the mandatory duty on the Defendant under s.42(3) of the 2014 Act to arrange for the Claimant the health care plan specified in the EHC plan in November 2023. 70. In the circumstances, I am satisfied that Ground 1 is arguable and that permission should be given. Having considered the arguments, I am further satisfied that the Defendant is in breach of its duty under s.42(3) of the 2014 Act to arrange for the Claimant to have the health care plan specified in Section G of his EHC plan dated 23 November 2023 and that, accordingly, the claim succeeds on Ground 1.”

The Respondent’s Notice

[35]By a Respondent’s Notice dated 6 December 2024, lodged after A was given permission to appeal on the restitution issue (ground 3), the Respondent sought permission to rely on a document which had not been before the judge, namely a draft health care plan prepared by Enviva, which was not signed by or behalf of A’s parent or guardian, but was signed by Sherrie Beckingham for Enviva, signifying that she had reviewed the first draft on 20 June 2024 and had approved the second draft on 2 August 2024. I shall refer to this as the “August 2024 draft health care plan”. In light of the August 2024 draft health care plan, which came to the attention of the Respondent after MacDonald J had given judgment, the Respondent now challenges the judge’s conclusion that the Respondent was in breach of its statutory duty on two grounds:a. Ground 1: that in light of the August 2024 draft health care plan,(i) the judge erred in finding that the June 2023 health care plan was out of date because a new plan was progressing from June 2024 to August 2024; and/or(ii) should have refused permission; and/or(iii) should have held that the claim was academic.b. Ground 2: the decision that the June 2023 health care plan was out of date was unfair due to the non-disclosure of the August 2024 draft health care plan by A.[36]In light of these developments, the August 2024 draft health care plan has taken centre stage on this appeal. Certainly, there is an issue about admissibility of that document and related witness statements, but there are allied questions about the relevance of the August 2024 draft health care plan to the judicial review and the impact which it might have had on the judge’s conclusions (or should now have if admitted).[37]Rather than take up time on lengthy arguments about admissibility, the Court informed the parties at the outset of the appeal hearing that it had considered the August 2024 draft health care plan and the accompanying evidence de bene esse. The Court invited submissions on that basis. Adopting a similar approach in this judgment, I will therefore outline the content and genesis of the August 2024 draft health care plan, the way the case was argued before MacDonald J, the submissions made relating to that document on the cross-appeal, and then deal with admissibility and, if admissible, the effect this document has on A’s case.

The August 2024 draft health care plan in outline

[38]The August 2024 draft health care plan followed the same format as the June 2023 health care plan (see the summary of the judge’s examination of that document at para 14 above). But the content of the August 2024 draft health care plan was different in some places and appears to be an updated draft of the June 2023 health care plan in light of the developments in A’s care since June 2023. The August 2024 draft health care plan runs to 24 pages of narrowly typed script. There are some gaps and questions highlighted in the text, for example, on p 5 there is a note that further input was required from the multi-disciplinary team and that the plan would be updated with new ways to help A navigate his traumatic experiences of past medical interventions, on pp 9 and 12 it is noted that well and unwell plans with input from his team and parents were awaited which would guide A’s care when experiencing a period of ill health, on p 15 it was noted that A was awaiting review by a speech and language therapist with a study on dysphasia, on p 16 it was noted that his multi-disciplinary team had been invited to review his chair, and on p 22 it was noted that his day routine was currently being updated with his school. A number of documents, 25 in total, were listed as appendices, one of which was still awaited, namely a medical report.[39]The August 2024 draft health care plan was signed by Sherrie Beckingham, Nurse Manager for Enviva, in two places, first on 20 June 2024, with the caption “1st draft reviewed” and secondly on 2 August 2024 next to “second draft”. There is a highlighted rider beneath Ms Beckingham’s two signatures saying “Please note that this is a drafted document with new changes, and awaiting further assessments, and protocols to come via the MDT”. There is a signature block for the parent or guardian on the same page which is blank.

Origin and knowledge of the August 2024 draft health care plan

[40]There is no real mystery about how the August 2024 draft health care plan came into existence and what happened to it after that. It was prepared by Enviva on a date unknown but likely to have been in about June 2024 (based on the date of Ms Beckingham’s first signature on 20 June 2024). At that time, Enviva was still commissioned by the Respondent. We know that the draft was sent by Ms Beckingham of Enviva to Ana Marote of Whittington Health on 8 August 2024 (by which time the Respondent had terminated its contract with Enviva) under cover of an email saying: “Please find attached [A]’s Draft care Plan agreed by mum this week. This is a working document due waiting on further plans, happy to share when receive and amendments are made”.[41]Ms Marote acknowledged receipt by email to Ms Beckingham on 9 August 2024. On 13 September 2024, Rashel Uddin of Whittington Health sent an email to the Respondent (addressed to the Respondent’s duty inbox as well as the personal inbox of Pooja Alva who is the commissioning manager for children and young persons in the Respondent’s complex care team) saying that she was sending over “assessments and evidence” about A by link and that due to the volume of the material, the evidence was split into three separate folders. That link was sent a few minutes later, to the same addressees. On the same day, 13 September 2024, Pooja Alva opened the link and uploaded the documents to A’s file on the Respondent’s shared drive. The August 2024 draft health care plan was included in one of the folders sent by Whittington Health to the Respondent by means of this link and, along with other documents, it was uploaded to the Respondent’s digital system on 13 September 2024. However, Ms Alva did not inspect the documents she uploaded. She was not told that the documents included an updated health care plan. She did not know that there was a draft updated health care plan amongst these documents.[42]After MacDonald J had given judgment, there were exchanges between A’s solicitor, Rebekah Carrier, and the Respondent’s solicitor, Kiran Bhogal, about A’s care package. In one of these exchanges on 30 October 2024 Ms Carrier, who did know about the August 2024 draft health care plan (in circumstances I shall come to) referred to a “later draft plan”, although at the time of writing, Ms Carrier made a typographical error in referring to this as a document from 2023. It seems that, one way or another, this prompted questions to be asked within the Respondent’s team. On 1 September 2024, a senior member of the Respondent’s children and young persons’ complex care team contacted Stewart Birnie, clinical lead for that team, saying that A’s legal team had said there was an August 2024 care plan which had been provided by Whittington Health. This was news to Mr Birnie. He contacted Whittington Health asking to see any such plan. Before he heard back from Whittington Health, he looked in A’s file on the Respondent’s digital system. On the same day, 1 November 2024, he found the August 2024 draft health care plan in one of the several files which had been uploaded on 13 September. On 12 November 2024, Mr Birnie first saw the cover email sent by Ms Beckingham of Enviva to Ms Marote of Whittington Health, indicating that the August 2024 draft healthcare plan was “agreed by mum”.[43]Having discovered the August 2024 health care plan and the covering email, and considering these documents to be relevant to the matters determined by MacDonald J, the Respondent sent an unsealed Respondent’s Notice to B on 21 November 2024. That was the prompt for B’s fourth witness statement dated 22 November 2024, in which B stated that she had never agreed to the contents of the August 2024 draft health care plan, that she understood this was just a draft, that there were numerous parts of the document which required completion, and that she agreed only that the document should be sent to Whittington Health to assist in A’s updated DST assessment.[44]This was followed by a witness statement from A’s solicitor, Ms Carrier, dated 14 February 2025 in which she recounted that B had sent her the August 2024 draft health care plan on 12 August 2024, under cover of an email from B stating that it was (para 4): “the latest draft version of [A’s] agency care plan. It cannot be finalised without updating medical evidence, the Nurse Manager can’t make things up she needs to have clinical reports”.[45]Ms Carrier said that she considered the August 2024 draft health care plan to be irrelevant to the issues in the judicial review, because it was simply a draft and because it was received at a time when Enviva was no longer commissioned by the Respondent; for those reasons, she decided to exclude it from the bundle she was preparing for the upcoming judicial review hearing (para 4). In any event, she understood the Respondent already had the August 2024 draft health care plan because Ms Marote had it, and although Ms Marote worked for Whittington Health, Ms Carrier understood that “delivery to Ms Marote was to all intents and purposes delivery to the Respondent” (para 10). She suggested that the August 2024 draft health care plan was prepared for A’s parents as part of Enviva’s contractual arrangement with them, and not for the Respondent (para 11).

The Respondent’s case before MacDonald J

[46]At the hearing before MacDonald J, ground 1 of A’s claim was framed as a failure to produce a lawful health care plan. A’s attack was focussed on the June 2023 health care plan which A argued was deficient in a number of respects (see A’s Grounds for Judicial Review, paragraph 54). The Respondent filed Detailed Grounds of Response dated 3 September 2024. Paragraph 26 of the Detailed Grounds stated that the most recent version of A’s health care plan was dated 13 June 2023 and that the Respondent had sought an updated version on multiple occasions from Enviva. Paragraph 27 of the Detailed Grounds asserted that the Respondent had not yet received an updated health care plan from Enviva. At paragraph 53 of the Detailed Grounds, the Respondent asserted that it was Enviva’s responsibility to update the health care plan and that the Respondent had sought an updated plan from Enviva on multiple occasions “to no avail”.[47]The Court below was shown two witness statements from Kathryn Collin, Assistant Director of Children’s Complex Care for the Respondent, prepared in the context of the concurrent family proceedings. In her first statement dated 16 August 2024, Ms Collin explained that Enviva was responsible for updating the health care plan. She said that Ms Beckingham of Enviva had said she was updating the health care plan on 1 May 2024 (paragraph 80) but on 3 May 2024 Ms Beckingham had said that she was uncomfortable updating A’s health care plan (paragraph 92). There was mention of an “updated working document of its existing June 2023 care plan” on 30 May 2024 (paragraph 102) but on 10 June 2024, Enviva said it had not yet finished the working document care plan (paragraph 106). By the date of her statement (on 16 August 2024), Ms Collin said that there was no up to date care plan for A despite a number of requests (paragraph 175). She accepted that it was not clinically safe to work from a care plan which dated back to June 2023 because A’s needs had changed (paragraph 176).[48]In her second statement dated 3 September 2024, Ms Collin confirmed that the Respondent’s standard contract required the care provider (Enviva) to develop a health care plan (paragraph 9) but that Enviva, despite repeated requests to update the June 2023 health care plan had not done so; and then she said this at paragraph 21:
“It may be that Enviva have updated [A’s] health care plan and if so, we would hope that Enviva would also share [A’s] updated plan with the new provider.”
She said that it was up to the care provider to decide how often to review its care plan, usually every six months (paragraph 25) and that Enviva’s failure to update A’s plan was a “significant concern” (paragraph 26).[49]The skeletons prepared for the substantive hearing focussed on the adequacy of the June 2023 health care plan. It was the Respondent’s case that the June 2023 health care plan was adequate in the circumstances.[50]That was how the matter came before MacDonald J. There was no reference by any party to the document now known as the August 2024 draft health care plan. It is now clear that the Respondent was unaware of the existence of that document at the time of the hearing. By contrast, at least some members of A’s legal team and B were aware of the August 2024 draft health care plan from at least August 2024 onwards, but no one representing A, whether as his litigation friend or legal representative, brought it to the attention of the Respondent or the judge.

Should the August 2024 draft health care plan be admitted as fresh evidence?

[51]In the Respondent’s Notice sealed on 9 January 2025, the Respondent applied for permission to rely on the August 2024 draft care plan. There is no separate application to admit the witness statements of Mr Birnie and Ms Alva, but I proceed on the basis that those are covered by the application contained in the Respondent’s Notice.[52]The Respondent’s application to admit the August 2024 draft health care plan and supporting evidence is governed by CPR 52.21(2)(b) which provides that unless otherwise ordered, the appeal court will not receive evidence which was not below the lower court. This rule confers a discretion on the Court to admit fresh evidence, which is to be exercised in accordance with the overriding objective. As noted in the White Book commentary (see CPR 52.21.3 in the 2025 edition), the Ladd v Marshall criteria are not primary rules constitutive of the Court’s power to admit fresh evidence, however Ladd v Marshall and other pre-CPR cases remain relevant and persuasive (noting in particular Sharab v Al-Saud [2009] EWCA Civ 353, [2009] 2 Lloyd’s Rep 160 CA at [52] and Terluk v Berezovsky [2011] EWCA Civ 1534, [2011] All ER (D) 117 (Dec) at [32]).[53]The parties to this appeal approached the issue of admissibility by reference to the Ladd v Marshall criteria, and I adopt that approach too for convenience. First, there is no dispute between the parties that the August 2024 draft health care plan is a genuine and true document. Secondly, it is the Respondent’s case that, if admitted, the August 2024 draft health care plan would have had an important influence on the case. This is disputed by A. But in my judgment, the document is plainly relevant to the issues in the judicial review: most obviously it is relevant to the timeline of events which led to the Respondent’s termination of the Enviva contract, noting that the absence of an updated health care plan was one of the reasons why the Respondent terminated its contract with Enviva; but it is also relevant to the efforts made by the Respondent to arrange for an updated health care plan from Enviva, showing that those efforts were in the end fruitful in producing this draft. For present purposes, I am satisfied that it would have an important influence on the case.[54]As to the third Ladd v Marshall criterion, the parties dispute the reasons why the document was not put before MacDonald J and whether it could, with reasonable diligence, have been obtained for use at trial. In my judgment, even if the Respondent can be criticised for not having done more to find out whether Enviva had updated, or were in the course of updating, the 2023 care plan, the important fact is that B and Ms Carrier actually knew about it but did not think to mention it to the Respondent at any stage prior to the hearing before MacDonald J. Ms Carrier says that she did not think the document was relevant to the issues in the judicial review (and the genuineness of her belief has not been challenged). But with respect to her, I disagree (see para 53 above). The document was obviously relevant. However, I appreciate that the document came to her after the Respondent’s contract with Enviva terminated, and she thought it was a document commissioned by A’s parents (although a quick look at the signature page, dating back to June 2024, would have dispelled that impression). Ms Carrier should, I think, have checked that the Respondent’s legal team knew about the document before taking the unilateral decision to exclude it from the bundle – after all, Ms Carrier owed a duty of candour to the Court – but she too was doubtless under significant pressure in the context of fast-moving litigation. I would pause to note that the duty of candour is of particular importance in a case of this kind which was complex and coming to Court on a very urgent basis. The duty of candour encompasses the duty not to mislead the Court by omission (in the form, for example, of non-disclosure of a relevant document, see R (Citizens UK) v Home Secretary [2018] EWCA Civ 1812, [2018] 4 WLR 123 at para 106(5)).[55]One reason that Ms Carrier gives for not having disclosed this document at the outset was her understanding that the Respondent already had it, an understanding she reached in light of the acknowledged close working relationship between the Respondent and Whittington Health. It turns out that her understanding was not correct. But even if she had good reason to think, at the outset, that the Respondent already knew about this document, as matters progressed she ought to have questioned that assumption given the lack of any reference to it in any of the Respondent’s court papers, and noting the Respondent’s submission that Enviva had failed to provide anything approaching an updated health care plan, despite their requests.[56]As to B, she had sent the August 2024 draft healthcare plan to Ms Carrier and she too appears to have taken the view that it was an uncompleted draft of no relevance to the case. I disagree with her view on relevance, as I have already indicated.[57]It may be that the August 2024 draft health care plan could have been obtained by the Respondent with reasonable diligence, but by the same token, A and his legal team failed to ensure that it was disclosed and if it had been, no question of reasonable diligence would have arisen.[58]The just outcome in my view is that the August 2024 health care plan should now be admitted as fresh evidence. It is important evidence and without it, this Court would be proceeding on an incomplete view of the facts. In any event, the Respondent has permission to argue its case on the cross-appeal and it is difficult to see how the Court could decide the cross-appeal justly without having regard to the August 2024 draft health care plan. I would therefore admit the August 2024 draft healthcare plan and the four witness statements which have been prepared to explain it and its absence from the trial below: for the Respondent, the witness statements of Mr Birnie and Ms Alva dated 29 January 2025, for A the fourth witness statement of B dated 20 November 2024 and the witness statement of Ms Carrier dated 14 February 2025.

Submissions on cross-appeal

[59]The Respondent’s cross-appeal is based on two grounds set out in the Respondent’s Notice (see para 35 above). In furtherance of their cross-appeal on ground 1, Mr Lawson and Mr Rylatt set out a number of detailed arguments at paragraph 88 of their skeleton argument, which arguments they say would have been open to the Respondent if it had been aware of the August 2024 draft health care plan at the time of the hearing before MacDonald J. In summary, those arguments are: a) that the Respondent could have considered accepting the August 2024 healthcare plan as a new health care plan and subsequently argued that ground 1 was academic; b) that the Respondent could have argued that permission for judicial review should not be granted on ground 1 because the continuing care process was in fact producing a new document and delay alone (even if proved) is not unlawfulness and (for example) should be dealt with by the Ombudsman; c) that the Court could have compared the June 2023 health care plan with the August 2024 draft health care plan to decide if there were material differences and to test breaches asserted by the clamant on ground 1 (ie whether the care plan was insufficient in the ways alleged); d) that the Respondent could have relied on the August 2024 draft health care plan in support of its argument that seeking an update of the health care plan from Enviva was sufficient to discharge its duty under s 42(3) CFA 2014 to arrange for the health care stipulated in section G of A’s EHCP; e) that even if the Court found that the Respondent was in breach of its statutory duty, the Respondent could have argued that no mandatory order was required on the basis that a new plan was in train, and argued against the costs ordered on the basis that no effective remedy had been secured.[60]Mr Wise KC and Mr Persey dispute these points and submit that the August 2024 draft health care plan has no impact on the merits of the claim so that the cross-appeal should be dismissed (their skeleton, paragraphs 40-51).

Merits of cross-appeal

[61]I reject the Respondent’s ground 2 which is based on an assertion that the judge’s decision on ground 1 was unfair because of the failure by A’s legal team to disclose the August 2024 draft health care plan. The circumstances of non-disclosure are regrettable but do not lead me to conclude that this appeal should be allowed as of right, on grounds of unfairness. Rather, the focus of the cross-appeal must be on the impact of the fresh evidence on the Respondent’s substantive case on breach of statutory duty, this being the Respondent’s cross-appeal, ground 1.[62]The key parts of MacDonald J’s findings are contained in paragraph 69 of his judgment set out in full at para 34 above. By its cross-appeal, the Respondent makes no challenge to the judge’s characterisation in that paragraph of the duty owed by the Respondent to “arrange for a health care plan that reflected the outcome of the comprehensive, multi-disciplinary review process that … concluded in the finalised EHC plan in November 2023”. I turn to consider the specific points the Respondent says it would have made if it had known about the August 2024 health care plan (see para 59 above). Contrary to the Respondent’s proposed first point (a), it would not have been open to the Respondent to adopt the August 2024 draft health care plan as a final health care plan which satisfied its statutory obligation under s 42(3) of the 2014 Act. The August 2024 health care plan was only ever in draft, as was made clear by the annotation at the end, and by the fact that some material elements were missing. As to the Respondent’s point (b), I think permission would still have been granted against the Respondent on ground 1, even in light of the August 2024 draft health care plan, because A’s case on ground 1 was not altered by the advent of the August 2024 draft: A’s argument remained that the Respondent had failed to arrange for an up to date health care plan and, further, had delayed even starting that process until May 2024. To answer the point made at (c), the judge did not reach any conclusion on the alleged deficiencies in the June 2023 health care plan so any comparison between the June 2023 health care plan and the August 2024 draft would not, so far as I can see, have made any difference to outcome. As to (d), the Respondent would have had a stronger case for saying that it had made satisfactory efforts and taken reasonable steps to arrange a health care plan but it is likely that the judge would still have found a breach of statutory duty given the Respondent’s delay in making arrangements for that plan, and given that the duty is absolute and non-delegable so that best endeavours are an insufficient answer.[63]However, as to (e), I think the Respondent would have had a powerful case for arguing that despite the established breach of duty, no remedy should be granted. MacDonald J discussed the issue of remedy at para 101 of his judgment:
“As to relief, it would not seem necessary to make a Declaration with respect to the breach of s.42(3) of the 2014 Act given the matters set out in detail in this judgment. I would be minded to grant a mandatory order requiring the Defendant to arrange the health care plan stipulated in Section G of A’s EHC plan dated 23 November 2023 informed by the detailed review assessment process that preceded that EHC plan. This will, of course, be subject to a mutually acceptable registered care provider being identified for A’s care package moving forward. I will allow counsel to address me further on relief if agreement cannot be reached between the parties in the light of this judgment.”
He went on, as I have noted, to make a mandatory order by way of disposal of the claim (and to award costs against the Respondent to reflect that outcome).[64]Remedies in judicial review are always a matter of discretion for the judge (see, for example, R (Imam) v Croydon London Borough Council [2023] UKSC 45, [2023] 3 WLR 1178 at para 41). That discretion is to be exercised according to what is fair and just in the particular case (see De Smith’s Judicial Review, 9th ed (2024) at para 18-047).[65]In my view, the August 2024 draft health care plan was relevant to the judge’s exercise of discretion on the issue of remedy. If it had been known about, the focus for submissions would have been the obvious and practical matter of what more could realistically be expected of the Respondent, given that there was already in existence an advanced draft updated health care plan, and given that by the time of the hearing the Respondent was no longer commissioning A’s care and was not, therefore, in a position to ensure that the draft was finalised. The existence of the August 2024 draft health care plan was a material factor unknown to the judge. That means his decision cannot stand. The Court must consider the question of remedy afresh, in light of the facts as they are now known.[66]In my judgment, the August 2024 draft health care plan makes a real difference to that exercise. I would make no order against the Respondent in light of it, for the following reasons:(a) the failures identified by the judge as relevant to the breach of duty (notably the Respondent’s delay in arranging the updated health care assessment) lay in the past, at a time when the Respondent was commissioning A’s care;(b) the August 2024 draft health care plan mitigated that past breach, by showing that the Respondent’s efforts, even if they came late, did in fact result in a draft revised health care plan being drafted during the time that the Respondent was commissioning A’s care;(c) by the time the judicial review was concluded and the issue of remedy came to be assessed, the Respondent was no longer in a position to press for the draft to be finalised by Enviva because the Respondent had (lawfully, as the judge found) terminated its contract with Enviva on 9 July 2024;(d) from 10 July 2024 onwards, A’s parents were in a position to press Enviva to finalise the health care plan because, from that date, they were commissioning Enviva to provide care to A;(e) there was, in those circumstances, a risk that the Respondent would be unable to comply with a mandatory order because the Respondent did not have access to A and was no longer commissioning his care.

Conclusion on cross-appeal

[67]I would therefore allow the cross-appeal to the extent of quashing the judge’s mandatory order and substituting no order by way of remedy for the Respondent’s breach of duty. Issue 2: The Notice to Affirm Nature and Scope of Notice to Affirm

Issue 2: The Notice to Affirm

[68]The Appellant responds to the Respondent’s cross-appeal with the Notice to Affirm, which is, as I understand it, a responsive document by which A seeks this Court’s affirmation of the judge’s decision on ground 1 for other reasons, namely (and in summary) that the June 2023 health care plan was unlawful because of its inadequate content.[69]In response to the Notice to Affirm, the Respondent submits, as it did below, that the June 2023 is a lawful document. It does so by reference to available law and guidance on the purpose and content of health care plans described at section G of an EHC Plan.

The Judgment below

The judge did not find it necessary to determine those arguments, saying at para 51:

“For reasons I shall come to however, it is not necessary to examine in detail the submissions as to the adequacy of the content of the care plan dated 13 June 2023 when determining Ground 1 of the claim.”

The judge identified the key question in the case at para 68:

“Within the foregoing context, I am satisfied that the key question with respect to Ground 1 is not the adequacy of the individual terms of the health care plan dated 13 June 2023, but rather the adequacy of the position taken by the Defendant following the conclusion of the review process culminating in the EHC plan in November 2023…”
.

A’s case

[72]The Notice to Affirm seeks to revive A’s arguments about the adequacy of the health care plan even though MacDonald J did not consider it necessary to determine them. By para 2, the Notice suggests that the June 2023 health care plan was inadequate in its content. However, no question of the adequacy of the June 2023 health care plan arises on this appeal. I have accepted, as the judge did, that the Respondent was in breach of statutory duty in failing to arrange for an up to date health care plan which reflected the November 2023 EHC Plan: see para 62 above. In light of that finding, it is not necessary to consider the adequacy of the contents of the June 2023 health care plan. Any challenge by A to the June 2023 health care plan would anyway be long out of time.[73]A’s skeleton argument shifts ground and suggests that the Notice to Affirm becomes relevant if the August 2024 draft health care plan is found to be an up to date care plan sufficient to fulfil the Respondent’s statutory duty under s 42(3) (para 53), in which event A submits that it too was inadequate. But I have not been persuaded, despite the Respondent’s Notice, that it was open to the Respondent to adopt the August 2024 draft health care plan or to rely on it as sufficient to fulfil its statutory duty: see para 62 above. Therefore this alternative argument does not arise either. The August 2024 draft health care plan was only a draft; it was not an up to date health care plan which was capable of fulfilling the Respondent’s statutory duty.

Conclusion on Notice to Affirm

[74]Like the judge, I conclude that it is not necessary to address the arguments raised in the Notice to Affirm. The judge found, and I agree, that there was no up to date health care plan in place for A at the material time. That remains the case, even now that the August 2024 draft health care plan has emerged. Questions about the adequacy of either or both of these versions of A’s health care plan simply do not arise. I would dismiss the Notice to Affirm. Issue 3: the appeal on the restitution point The Judgment Below

Issue 3: the appeal on the restitution point

[75]The judge recorded A’s argument that his parents were entitled to restitution of the amounts they had spent on A’s care since 10 July 2024 on the ground that the Respondent had been unjustly enriched by not paying for A’s care package since that date. The judge summarised A’s argument in the following way (para 93):
“The claimant asserted that the Defendant has been enriched by not paying for the healthcare package since on or around 10 July 2024, that that enrichment was at the expense of the Claimant’s parents by reason of their having to fund A’s care and that the enrichment was unjust because the Claimant’s parents had no choice but to ensure that Enviva and [Practical Staffing] continue to deliver the Claimant’s healthcare package in circumstances where the Defendant had failed to take the basic steps required to safely transition to a new provider and there was risk of serious harm or death if nurses or carers with poor understanding of the Claimant’s needs were required to deliver his sensitive and complex healthcare package.”
[76]The judge concluded that it was not necessary to decide A’s claim for restitution, which was a complex issue, in light of the more “prosaic point” that A was not paying for his continuing health care provision, rather his parents were, and A had not suffered any pecuniary loss which could be the subject of restitution (paras 97-98 of the judgment). The judge concluded (para 99):
“The matters set out by the Claimant under Ground 3 really relate to the question of remedy. For the reasons set out above, I am not satisfied that the Claimant is entitled within these judicial review proceedings to a remedy of restitution on the grounds of unjust enrichment. If the parents seek to recover from the Defendant the monies they have expended on the Claimant’s care since 11 July 2024 then, provided they can identify a cause of action, it remains open to them to pursue a civil claim in the County Court.”

Submissions

[77]Mr Wise and Mr Persey argue that the judge was wrong to conclude, in effect, that A lacked standing to bring this claim in restitution; they say that he is the beneficiary of the care and support which his parents have paid for and that the restitution claim arises “from the public law errors in the [Respondent’s] decision making in respect of his care and support package” (taken from A’s grounds of appeal to this Court).[78]In their skeleton argument, supported by oral submissions, Mr Wise and Mr Persey submit that A has met the criteria for a claim in unjust enrichment. They rely on Barton v Gwyn-Jones [2023] UKSC 3, [2023] AC 684 at para 77 per Lady Rose JSC (that passage itself drawing on earlier authority): “When faced with a claim for unjust enrichment, a court must first ask itself four questions:(1) has the defendant been enriched?(2) was the enrichment at the claimant’s expense?(3) was the enrichment unjust?(4) are there any defences available to the defendant?[79]They suggest that the issue in this appeal turns on question (2), and that in answer to that question, the Respondent has been enriched at the claimant’s expense. They rely on Investment Trust Companies v HMRC [2017] UKSC 29, [2018] AC 275 at para 41 for the proposition that the four questions are no more than broad headings or signposts towards areas of inquiry, and the words “at the expense of” in question (2) should not be construed like a statute but can have a broader reach. They then turn to R (CP) v North East Lincolnshire Council [2019] EWCA Civ 1614, [2020] PTSR 664 as an example of this Court ordering repayment by a public authority to a father who had incurred costs on behalf of his disabled daughter. They further rely on cases in the personal injury field where claimants have recovered damages to compensate for care provided to them gratuitously (for an example, see Hunt v Severs [1994] 2 AC QB 454).[80]By its Respondent’s Notice and accompanying skeleton, the Respondent argues that A’s case for unjust enrichment is hopeless, for the reasons given by the judge (namely, that any enrichment is not at A’s expense) and distinguishing the various authorities on which A now seeks to rely. The Respondent also submits that there are further or different reasons for upholding the judge’s dismissal of ground 3. In particular, the Respondent submits that in light of the judge’s rejection of ground 2 – by which the judge determined that the Respondent’s termination of Enviva’s contract on 9 July 2024 was lawful - there is no basis on which C can claim restitution of money spent after that date; there is no unlawful act by the Respondent which necessitated or caused A’s parents to incur that expenditure and there is no injustice in A’s parents carrying the burden of that expenditure themselves. The Respondent emphasises that it was ready and willing to commission a continuing care package for A after 10 July 2024 but A’s parents chose not to take that package but instead to fund Enviva to continue providing care to A. The limited breach which was identified by the judge in response to ground 1 occurred before 9 July 2024 and was unrelated to the costs incurred by A’s parents after that date; it does not provide the foundation for any claim for damages or restitution of the money spent by A's parents. Mr Lawson and Mr Rylatt emphasise that “unjust enrichment does not create a judicial licence to meet the perceived fairness requirements on a case-by-case basis” (per Lord Reed in Investment Trust Companies at para 39).

Discussion

[81]In my judgment, the gratuitous care cases (such as Hunt v Severs) are not relevant. Damages awarded in those cases were to compensate claimants who had a moral obligation to pay for care given by family and friends out of love and without charge. That situation is not analogous to this case where A’s parents have incurred costs in funding A’s care by a third party.[82]The high point of A’s argument is CP. In that case, the first instance judge found the local authority defendant in breach of statutory duty but held that the claimant was not entitled to restitution of costs incurred as a result of that breach. The Court (per Haddon-Cave LJ, with whom the other members of the Court agreed) allowed the appeal holding that the costs were recoverable. I am not, however, persuaded that CP assists Mr Wise. First, it is far from clear that the Court of Appeal analysed the right of recovery as one which arose in restitution – the words “restitution” and “unjust enrichment” do not appear in the part of Haddon-Cave LJ’s judgment where he gives his reasons. Secondly, and in any event, the case is distinguishable on its facts, and obviously so: CP’s claim was for the historic costs of attendance at a day care facility, which costs had in fact been met by CP’s parents; Haddon-Cave LJ concluded that those costs should have been included in the claimant’s personal budget for past years, and that non-inclusion was a breach of statutory duty (see paras 75 and 79). It was against that background that the local authority had to compensate CP for those costs, which were directly consequential on the breach (see para 83).[83]This case is very different, because the only breach of duty which has been established is the failure to arrange for an updated health care plan (discussed above at para 62). Yet the costs which have been incurred by A’s parents are not consequential on or even closely related to that breach (despite Mr Wise’s submissions to the contrary). The costs incurred by A’s parents reflect their unwillingness to accept the Respondent’s commissioned care package from 10 July 2024 onwards and the parents’ preference to retain Enviva as A’s care providers; they are unrelated to the lack of an updated health care plan.[84]A presents his case on the appeal by reference to the four questions in Barton v Gwyn-Jones (see para 78 above). Although A’s focus is on question (2), in my judgment it is question (3) which most obviously presents an obstacle to A’s appeal. In light of the dismissal of ground 2, there is no basis to conclude that the Respondent has been enriched in a manner that would be unjust. It is now established that the Respondent lawfully terminated Enviva’s contract on 9 July 2024. A’s parents chose to retain Enviva after that date, and to pay Enviva themselves. There is no injustice in the Respondent not having to meet Enviva’s costs after that date. Question (3) in Barton v Gwyn-Jones must therefore be answered against A. That is to accept one of the arguments in the Respondent’s Notice.[85]It is not necessary in those circumstances to reach any conclusion on MacDonald J’s different reason for dismissing ground 3, his reason relating to whether the Respondent had been enriched at A’s expense, which reflects question (2) in Barton v Gwyn-Jones.

Conclusion on appeal

[86]I would dismiss A’s appeal on the restitution point. Summary[87]I thank all counsel and their respective legal teams for the assistance they have given the Court in this troubling case. I would allow the cross-appeal to the extent of quashing the relief granted by the judge in the form of the mandatory order. I would dismiss A’s appeal and Notice to Affirm. I would invite further submissions on the appropriate costs order here and below in light of those conclusions.[88]I agree that the Respondent’s cross-appeal should be allowed, and the mandatory order for a new health care plan should be quashed, for the reasons given by Lady Justice Whipple.[89]I would dismiss A’s appeal on the basis that any enrichment of the Respondent was not unjust (the third factor mentioned in Barton v Gwyn-Jones, see para 78 above).[90]In brief, the judge found that notice to terminate the Enviva contract was given because the Respondent concluded that Enviva was not able to provide safe and effective care for A and that the termination was lawful. Once that conclusion was reached, and permission to appeal on that issue was refused, the foundation for the claim in restitution fell away.[91]The principal reason why A’s mother refused to allow Nursing Direct to take over his care was that she was concerned to avoid the risk which change to a provider unfamiliar with A and his needs would involve. It is also unfortunate that contact with Nursing Direct got off to a bad start when a nurse and carer attended who did not know A’s name. But once the Enviva contract was lawfully terminated, there were only two real possibilities remaining. Either there had to be a new provider funded by the Respondent, which in practice meant Nursing Direct, or if A’s parents insisted that Enviva should continue to provide care (the majority of which was actually being provided by Practical Staffing, an unregistered provider), they would have to pay for it themselves.[92]A’s parents chose the latter course, which represented a significant financial sacrifice. No doubt they did so in the belief that this was in A’s best interests, and this was certainly a time when they, and in particular A’s mother, were under considerable stress, but the fact is that this was a choice which they made which means that it is not possible to say that it is unjust for them to have to bear these costs. The incurring of the costs in question was the result of their own choice, albeit between what were for them two unpalatable alternatives.[93]The judge’s conclusion on the lawfulness of the termination of the Enviva contract means that the only unlawful conduct on the part of the Respondent was the failure to arrange for the sufficiently prompt updating of A’s care plan. But it was not this which caused A’s parents to incur the cost of care by Enviva after the termination of the Enviva contract from 10th July 2024 onwards. There is, therefore, no causal nexus between any unlawful conduct of the Respondent and the incurring of the costs of which restitution is sought.[94]As a result, an essential element of a claim in restitution is lacking.[95]I would leave open the question whether, if all other elements of a restitutionary claim had been present, it would have been a bar to recovery that the costs in question were paid by A’s parents rather than by A himself. In my view it is unnecessary to decide that question and preferable to leave it to be decided in a case where it will be decisive.[96]I agree.

Cited in 1 later judgment