CGT, R (on the application of) v West Sussex County Council [2026] EWHC 293 (Admin)

“Following the Local Authority’s application to the [CoP] and guidance from the [OPG], I write to set out the Local Authority’s position in respect of the funding of [CGT’s] care needs. The Local Authority maintains that [CGT’s] needs should be met from his trust fund, as envisaged when the CICA award was made. On 16 June 2020 the Local Authority wrote to you and explained that it would fund such care needs on a without prejudice basis. Such funding has been in provide since 6 July 2020. [CGT’s] original trustee and Deputy gave an express undertaking that she would not apply for public funding to assist with [CGT’s] care needs. Care cost compensation was included in the CICA award relying on that undertaking. Since 2012 both the relevant legislation dealing with social care costs has changed, from the National Assistance Act 1948 to Care Act 2014, and the identity of the Deputy has changed. Regardless of whether [CGT’s] current Deputy is bound by the earlier undertakings and whether these undertakings would apply to replacement legislation, the effect of WSCC paying [CGT’s] assessed care need costs is that there is double recovery. [CGT] was given a compensation package that included future care need costs. That fund has not been exhausted and, despite the undertaking given, [CGT’s] Deputy has applied for local authority funding of assessed care costs. Where the Deputy has not repaid CICA there is double recovery. In this case both sources of funds have been from the public purse. In the case law, including Tinsley, the court has emphasised that it will prevent double recovery. Consequently, WSCC gives the Deputy notice that it will cease to pay [CGT’s] assessed care need costs on 5 July 2024 with the expectation that these costs will thereafter (from 6 July) be paid from the trust fund. WSCC gives notice that it requires [CGT’s] Deputy to repay care need costs paid between 6 July 2020 and 5 July 2024 totalling £271,253.44. With a view to a speedy resolution, WSCC is willing to forego interest on this sum. However if repayment is not made by 7 September 2024, a demand for interest will also be pursued.”

“15 Any amount which would be disregarded under paragraph 12 of Schedule 10 to the Income Support Regulations (personal injury trusts).” “16 Any amount which would be disregarded under paragraph 12A of Schedule 10 to the Income Support Regulations (personal injury payments) with the exception of any payment or any part of any payment that has been specifically identified by a court to deal with the cost of providing care.”

“12. Where the funds of a trust are derived from a payment made in consequence of any personal injury to the claimant or the claimant’s partner, the value of the trust fund and the value of the right to receive any payment under that trust.” “12A(1) Any payment made to the claimant or the claimant’s partner in consequence of any personal injury to the claimant or, as the case may be, the claimant’s partner.”

“the value of funds held in trust or administered by a court which derive from a payment for personal injury to the person. For example, the vaccine damage and criminal injuries compensation funds.”

“It would be unconscionable to quash the Decision and the court should exercise its discretion not to grant relief.”

“76. It is of course trite law that the claimant cannot recover twice for the same loss. Those representing the claimant were well aware of this potential problem. They sought to overcome it by offering to the court, through Mrs Miles the Deputy, an undertaking. She gave evidence that she was prepared to give an undertaking as Deputy not to seek statutory funding for C's care, such undertaking to be qualified on whatever terms were appropriate. But when that proposition was explored it became apparent that it was fraught with difficulty. Mrs Miles had not identified the terms of any qualification to the undertaking, such as the circumstances in which she might be released from it, nor was she even sure that her terms of appointment as Deputy entitled her to offer it. She further accepted that any undertaking she gave would be personal to her and that she could not bind her successors. It was later suggested on behalf of the claimant that a suitable undertaking would be "not to make any claim for public funding of the care of the claimant under section 21 of the National Assistance Act 1948 or any equivalent subsequent legislation without leave of the Court or the Court of Protection." 77. I am far from satisfied that there is any proper legal basis for Mrs Miles to give the undertaking she offers, and it would certainly not bind her successors. In any event I regard any such undertaking as impractical and undesirable. It cannot be right to devise an undertaking dealing with the circumstances in which a gravely disabled person is or is not permitted to avail herself of assistance offered by the Local Authority even with the caveat proposed. 78. On the other hand, I have the evidence of Mrs Miles, which I unhesitatingly accept, that she, the Deputy in effective control of the management of C's financial affairs, is very much of the view that C's future care should be privately funded. In those circumstances I find that, providing the court orders that the tortfeasors meet the cost of future care, Mrs Miles will not require the Local Authority to provide the claimant with care under its statutory obligations in the future, at any rate in the absence of some wholly unexpected development which compels hers to abandon her stated intention to rely on private funding. I am further confident that I can rely on any future Deputy taking precisely the same view. Such successor will be appointed by the Court of Protection and will unquestionably be a person of probity and integrity entirely fitted to be trusted not to abuse their position. 79. In those circumstances no question of double recovery arises. The claimant will recover her loss from the tortfeasors instead of recovering from the Local Authority, not as well as recovering from them.”

“30. The phrase "an award of damages for a personal injury" is clear, unambiguous and unqualified. We find it impossible to construe it as referring only to some heads of an award of damages for personal injury. We can see no basis for construing the phrase as referring only to general damages for pain, suffering and loss of amenity to the exclusion of other heads of loss, such as damages for loss of earnings. Of course, we can see the good sense and fairness of excluding from the disregard provision any sum awarded by a court in respect of the cost of providing accommodation and care. Such an exclusion is to be found in para 10A of Schedule 4 to the NAARR. But it is impossible to construe para 44(2)(a) of Schedule 10 to the ISR as importing such an exclusion. 31. It is of some significance that, in para 10A of Schedule 4 (in relation to any payment made to a claimant or a claimant's partner "in consequence of" of a personal injury), Parliament decided expressly to exclude from the disregard any payment "specifically identified by a court to deal with the cost of providing care". It is a reasonable inference that Parliament considered that, but for such express exclusion, the whole of the damages awarded in consequence of a personal injury would fall to be disregarded. In our judgment, the express exclusion in para 10A fortifies the conclusion that we have reached as to the true meaning of para 44(2)(a) of Schedule 10 to the ISR. This conclusion accords with [18] of the decision of Mr Commissioner Rowland in R(IS) 15/96.”

“Having reviewed these authorities, we can now express our conclusion on this issue. We can see no reason in policy or principle which requires us to hold that a claimant who wishes to opt for self-funding and damages in preference to reliance on the statutory obligations of a public authority should not be entitled to do so as a matter of right. The claimant has suffered loss which has been caused by the wrongdoing of the defendants. She is entitled to have that loss made good, so far as this is possible, by the provision of accommodation and care. There is no dispute as to what that should be and the Council currently arranges for its provision at The Spinnies. The only issue is whether the defendant wrongdoers or the Council and the PCT should pay for it in the future.”

“In our judgment, therefore, provided that there was no real risk of double recovery, the judge was right to hold that there was no reason in principle why the claimant should give up her right to damages to meet her wish to pay for her care needs herself rather than to become dependent on the State. The judge was right to be concerned about the possibility of double recovery to which we now turn.”

“62. If it had been necessary to do so, we would have held that the judge was entitled to take the view that the possibility of double recovery was effectively eliminated by his finding that, if the tortfeasors paid the care and accommodation costs, Mrs Miles and her successor(s) would not require the Council to discharge its statutory duty under section 21 of the NAA "in the absence of some wholly unexpected development which compels her to abandon her stated intention to rely on private funding". Such a finding was made in Freeman v Lockett [2006] EWHC 102 (QB), [2006] PIQR P23 and was said in Crofton at [92] to be a proper finding to make. We can see, however, that this is not an entirely satisfactory way of dealing with the possibility of double recovery. Take the present case. For example, what would happen if (contrary to the judge's expectation), Mrs Miles or her successor(s) did seek provision of care and accommodation from the Council in circumstances which were not "wholly unexpected"? What is a "wholly unexpected development"? Who would be the judge of whether a wholly unexpected development had occurred? It is not at all obvious how this would be policed and what right of recourse, if any, the defendants would have if Mrs Miles or her successor(s) did seek provision from the Council in circumstances which were not "wholly unexpected". 63. But during the course of argument in this court, it became clear that there is an effective way of policing the matter and controlling any future application by Mrs Miles for the provision of care and accommodation by the Council. It can be achieved by amending the terms of the court order pursuant to which she is acting. The Court of Protection Order made on 28 January 2006 sets out in considerable detail the scope of her authority. Paragraph 6 of the order provides that the Receiver (now Deputy) is not authorised to do any of the acts or things stated in subparagraphs (a) to (p) "unless expressly authorised to do so by the court by further order, direction or authority". 64. Mrs Miles has offered an undertaking to this court in her capacity as Deputy for the claimant that she would (i) notify the senior judge of the Court of Protection of the outcome of these proceedings and supply to him copies of the judgment of this court and that of Butterfield J; and (ii) seek from the Court of Protection (a) a limit on the authority of the claimant's Deputy whereby no application for public funding of the claimant's care under section 21 of the NAA can be made without further order, direction or authority from the Court of Protection and (b) provision for the defendants to be notified of any application to obtain authority to apply for public finding of the claimant's care under section 21 of the NAA and be given the opportunity to make representations in relation thereto. 65. In our judgment, this is an effective way of dealing with the risk of double recovery in cases where the affairs of the claimant are being administered by the Court of Protection. It places the control over the Deputy's ability to make an application for the provision of a claimant's care and accommodation at public expense in the hands of a court. If a Deputy wishes to apply for public provision even where damages have been awarded on the basis that no public provision will be sought, the requirement that the defendant is to be notified of any such application will enable a defendant who wishes to do so to seek to persuade that the Court of Protection should not allow the application to be made because it is unnecessary and contrary to the intendment of the assessment of damages. The court accordingly accepts the undertaking that has been offered. 66. In these circumstances, we do not see the risk of double recovery as a reason for rejecting the judge's decision to award the claimant the full cost of care and accommodation. We therefore uphold his conclusion on the second issue. In these circumstances, it is not strictly necessary to decide the third issue. But we propose to do so in case our conclusion on the second issue is wrong and, in any event, because it was the subject of full argument before us.”

“11. Manchester submits that the mere fact that an obligation is imposed on it by s.117 to provide after-care services to persons compulsorily detained pursuant to section 3 of the Act does not require it to provide, or arrange for the provision of, such services if a claimant has funds available for that purpose provided by a tortfeasor. Manchester accepts that the fact that a claimant is personally wealthy would not justify a refusal to provide the services; it is the fact that money has become available from the tortfeasor that is said to make all the difference. 12. This is an impossible argument. As Ms Richards pointed out, a refusal to pay for such services is effectively the same as providing such services but charging for them. The House of Lords has made it clear in Stennett that charging persons such as the claimant is impermissible. Manchester is effectively seeking, in the teeth of the express obligation to provide s.117 services, to recover by the back door what it cannot recover by the front. 13. Manchester's argument apparently extends to cases where funds are provided for after-care by any third party, not just by a tortfeasor. But to deny the right to after-care services in cases where funds have been provided by voluntary donation would be against all reason. Nor does Manchester's argument cater for a situation where a case settles (with or without a discount for contributory negligence) for a global unapportioned sum – as happens with great frequency. 14. Manchester's submission is, moreover, as Mr Harrop-Griffiths recognised, contrary to the decision of this court in Crofton v NHSLA on which he sought to rely for his submissions about double recovery. It is true that in that case (which was not a s.117 case) the court was concerned to avoid, at the point of awarding damages against a negligent health authority, the position where a claimant recovered damages from the tortfeasor but would, in fact, rely on the local authority to provide for his care needs. But in order to determine that question it was first necessary to decide (as a "threshold question") whether, in a case where the claimant is awarded substantial personal injury damages, the local authority could be satisfied, pursuant to section 2 of the Chronically Sick and Disabled Persons Act 1970 ("the 1970 Act"), that it was unnecessary to make arrangements to meet the claimant's needs at all. A second question would then arise whether, if the local authority could be so satisfied, it could have regard to the damages awarded in deciding how the care services should be provided. 15. Although the claim was brought pursuant to the provisions of section 29 of the National Assistance Act 1948 and section 2 of the 1970 Act (relating to services other than accommodation), the position under s.117 of the 1983 Act is not materially different. This court held (paras 63 and 66-67) that under the relevant charging provisions a capital sum represented by an award of damages for personal injuries which was administered by the Court of Protection could not be taken into account by a local authority. Relevantly for the present case this is now confirmed by regulation 18 and paragraph 25 of Schedule 2 to the 2014 Regulations as referred to above. The court then held that such an award could not be taken into account at the threshold stage either. It gave six reasons including (para 66) that "a system which requires personal injury damages to be taken into account at the threshold stage but disregarded at the means test stage makes little sense". At para 72 it concluded that in deciding the threshold question personal injury damages administered by the Court of Protection had to be disregarded. It follows that, if an application is made to a local authority for after-care services in general, it cannot take into account, when considering that application, the fact that a claimant has been awarded personal injury damages which are being administered by the Court of Protection. 16. It would be in the highest degree anomalous if such damages had to be disregarded for mentally ill patients who had not been compulsorily admitted to hospital but had to be taken into account for patients who had been compulsorily admitted.”

“It is, of course, the case that courts will seek to avoid double recovery by a claimant at the time they assess damages against a negligent tortfeasor. If therefore it is clear at trial that a claimant will seek to rely on a local authority's provision of after-care services, he will not be able to recover the cost of providing such after-care services from the tortfeasor. Crofton is itself authority for that proposition. It does not follow from this that, if a claimant is awarded damages for his after-care he is thereafter precluded from making application to the local authority. Mr Harrop-Griffiths appeared to accept that, if Mr Tinsley's funds had indeed run out, then Manchester would have to provide after-care services, although such provision might well not be a continuation of his present standard of after-care services or be as generous as Mr Tinsley or his deputy might wish. It seems to be Manchester's position that they need to be satisfied that Mr Tinsley's funds have indeed run out (or are about to run out). But there also seems to be some concern that Mr Tinsley's funds may have been mismanaged. The question is whether those concerns entitled Manchester to refuse to consider Mr Tinsley's application at all. If Ms Richards' submissions are correct, Mr Tinsley could have required Manchester to consider his application at any time after Leveson J had given judgment in his favour. No doubt if a claimant were to do that just after judgment, the truth of his evidence that he intended to make private arrangements for his after-care could be called into question and the case against the tortfeasor might be able to be re-opened. But short of such an extreme case, is the local authority to be liable even if an applicant has funds still available from his award?”

“31. Four initial comments may be made about Peters. First, the court's judgment on this point was obiter, since they upheld Butterfield J's finding of fact that there was no risk of double recovery, prefacing their remarks with the words "If it were necessary to do so". Secondly the court did not consider the position under section 117 of the 1983 Act but only the position under the 1948 Act where the words "otherwise available" were of critical importance. Thirdly the undertakings were taken by the court at the time of the award of damages in order to ensure that the tortfeasor was not subjected to the risk that the claimant would make a double recovery against both it and the local authority. The undertakings were not inserted to protect the local authority but the tortfeasor. Fourthly, there does not appear to have been any argument addressed to the court similar to that made by Ms Richards in this case, to the effect that there is a right on the part of the claimant, after an award has been made, to look to the local authority if he or she prefers to do so. On the different wording of the 1948 Act any such argument might be debateable but it was never made. 32. More broadly, however, I doubt if it can be right, by requiring the deputy to give undertakings of the sort proffered by Mrs Miles, to transfer the burden of deciding whether a claimant is entitled to claim local authority provision to the Court of Protection. That court looks after the interests of its patients and is not (usually) required to decide substantive rights against third parties. Indeed it could be said that to decide that a local authority is not obliged to provide after-care services would not be to promote the interests of the patient. 33. It is noteworthy that in the one decision of the Court of Protection to which we were referred (Re Reeves of 5th January 2010), Judge Lush also thought that the matter should be decided by the Administrative Court rather than by him. If it is the law that a section 117 claimant can only claim against a local authority for after-care services once any award for such services against a tortfeasor has been (or is about to be) exhausted, it is for the Administrative Court to say so. For the reasons I have given I do not believe that is the law and the Administrative Court came to the correct conclusion in this case. 34. One understands that local authorities are concerned about the potential implications of the Administrative Court's decision especially since Schedule 4 to the Care Act 2014 applies sections 31 and 32 of that Act to the provision of after-care services, so that direct payments can be made instead, to those who have capacity to ask for them and to an authorised person on their behalf if they do not. That concern may, however, be overstated. Few claimants who have been awarded the costs of private care will voluntarily seek local authority care while the funds for private care still exist. If they ask for direct payments, the provisions of the Care Act will have to be considered. Any argument about such provisions is for another day.”

“[180] The sums received by the Claimant from the State for care by way of direct payments should be refunded to the Defendant annually on the day in December when the first PPO is made and annually thereafter. Otherwise the Claimant will receive more than she needs. I invite the Claimant to provide an undertaking to the court to refund the total sum received from the state for care on that date each year (a limited Peters Promise). I invite counsel to draft the undertaking. If the undertaking is not provided, I shall reconsider how best to account for the deduction simply by deducting the current annual payment. That would not take into account future changes and so would be rough and ready.”

“30. Having regard to the authorities to which my attention has been drawn, I accept the analysis of Mr Todd in his skeleton argument that what he refers to as "the primary solution" to the double recovery problem is to reduce damages to reflect likely receipt of public funding in the future. Of course, that requires there to be evidence upon which the Judge can make a finding on the balance of probabilities that such receipt is, indeed, "likely". Conversely, it may be possible to make a finding that such recourse is "unlikely". That was the position in Freeman v Lockett [2006] EWHC 102 (QB), relied upon by Mr Todd. In that case the Claimant had full capacity and recovered damages in full. Tomlinson J was able to find on the evidence that on receipt of damages for future care the Claimant would withdraw her application for state funding and would not reinstate it, thus no issue of double recovery arose. 31. In summary, the cases show that the common mechanisms to avoid double recovery are: (1) Reducing the once and for all lump sum. (2) Providing a mechanism for repayment to the provider of state funding. (3) Providing a mechanism designed to inhibit a claim for statutory funding, at least without some court oversight.”

“I accept the submission of Mr Todd that the authorities show that the Court should be alert to double recovery; also that the Court should not just deprecate double recovery where it arises, but should actively intervene to prevent it.”

“1. On 7th May 2009 an order was made in the Queen's Bench Division of the High Court approving settlement of a damages claim brought on behalf of BJB, on terms which included: a. reverse indemnity undertakings, whereby 98% of sums received by BJB in state provision are to be deducted from her periodical payments; and b. provision for release from the reverse indemnity undertakings by the Master of the Court of Protection or his successors, if that person is satisfied that BJB does not have sufficient resources to meet her reasonable needs. 2. BJB's property and affairs deputy has made an application to the Court of Protection for release from the reverse indemnity undertakings. That application is opposed by the Hospital Trust which was the Defendant to the damages claim, and by NHS Resolution which is the NHS Litigation Authority, an arms' length body of the Department of Health and Social Care.”

“It should be clear from that approach that I am not determining any issue of 'double recovery.' If that is a deficiency, then in my judgment it is a deficiency to which the defendant in the damages claim consented and which the High Court approved. The place for addressing such deficiency is the court considering the damages claim, not the Court of Protection.”

“Along with Senior Judge Lush in Reeves and with Lord Justice Longmore in Tinsley, I too doubt that it is right for issues which arise in civil litigation to be transferred to the Court of Protection in the way that they were, some time ago, in this matter. When I asked counsel before me they confirmed that, to the best of their knowledge, orders with a Peters undertaking are no longer being made. I welcome that development.”

“40. The starting point is that Croydon is subject to a public law duty imposed by Parliament by statute which is not qualified in any relevant way by reference to the resources available to Croydon. In principle, if resources are inadequate to comply with a statutory duty it is for the authority to use whatever powers it has to raise money or for central government to adjust the grant given to the authority to furnish it with the necessary resources, or for Parliament to legislate to remove the duty or to qualify it by reference to the resources available. Ward LJ observed in Aweys, at para 52, that if local authorities are finding that fulfilment of their duties to accommodate the homeless is providing impossible, “it is for the legislature to consider whether their position can be ameliorated.” 41. When it is established that there has been a breach of such a duty, it is not for a court to modify or moderate its substance by routinely declining to grant relief to compel performance of it on the grounds of absence of sufficient resources. That would involve a violation of the principle of the rule of law and an improper undermining of Parliament’s legislative instruction. 42. However, remedies in public law are discretionary: see, eg, R (Edwards) v Environment Agency, [2008] 1 WLR 1587 para 64; De Smith’s Judicial Review, 8th ed (2018), para 18-047. The existence of a discretion as to the relief to be granted allows a court which finds that there has been a breach of a public law duty to decide, in the light of all the circumstances as appear to the court at the time it applies the law, how individual rights and any countervailing public interests should be reconciled. Although Parliament lays down a duty in statute, it does so whilst appreciating that it is a general feature of public law that some degree of adjustment might be called for by the court which decides that there has been a breach of the statute. When it legislates to lay down a public law duty, Parliament cannot be expected to anticipate with precision every factor which might bear upon the justice of a particular case which arises under it. It is a common feature of public law duties that they stipulate how a public authority should act in circumstances where what it does will affect the interests of a range of people, not just the person bringing the claim against them.”

“In my judgment, the District Auditor was misled, by the contents of the letters sent to him by the applicant's solicitors, into believing that the question of the applicant's appeal to the Secretary of State was no longer live. It is unnecessary for me to decide whether those letters were written either by the solicitors, or at the applicant's suggestion, in bad faith, although it might be difficult to resist the conclusion that they were. The coincidental nature of the timing of the conclusion of the settlement, for such I am satisfied that it was, and the re-opening of the question in relation of challenge to the decision letter is an unhappy one.”