West Sussex County Council v Amberley (UK) Ltd & Anor [2010] EWHC 651 (QB)

Case No HQ10X00182[2010] EWHC 651 (QB)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONVenue Law Courts, BristolDate 31/03/2010
Before
MR JUSTICE FIELD
Between
West Sussex County CouncilClaimantAmberley (UK) LimitedDefendantsRonald H GreenDefendant
Mr Paul Stagg (instructed by West Sussex County Council Legal Services) for ClaimantMr Peter Susman QC (instructed by Davis & Co) for DefendantsHearing Hearing dates: 16 th, 17 th& 18 th February 2010
Judgment

Introduction

[1]In May 1983 the second defendant (“Mr Green”) and his wife, Maralyn, began running a Residential Care Home called Amberley, in Bognor Regis (“the Home”). In September 1983 the Home was registered with the Registration Unit of the claimant (“WSCC”). At all material times the land and building used for the Home were owned by Mr and Mrs Green and the Home was run as a commercial venture. In May 1993 the Care Home business carried on by Mr and Mrs Green was transferred to the first defendant (“Amberley Ltd”), which on 17th November 1999 was registered as the manager of the Home under the Registered Homes Act 1984.[2]In the period 1984 to 1993, a number of persons under 65 years of age who were suffering from moderate to severe mental illness were accommodated in the Home. Each of these residents was in receipt of Income Support at a higher than normal level which they used to pay for their care. In 1993 Income Support at the Higher Level was abolished for new benefit applicants but residents already in receipt of the benefit at the higher level (“Preserved Rights Residents”) had their right to receive this level of benefit preserved. As before, Mr and Mrs Green charged Preserved Rights Residents at a rate equivalent to their Higher Level Income Support.[3]On 8th April 2002 a new regime for the payment of residential care for those in need of the same was introduced when sections 50 to 52 of the Health and Social Care Act 2001 came into force. Preserved rights to Income Support at the Higher Level were abolished and local authorities came under an obligation to provide or arrange and pay for the care of former Preserved Rights Residents. In addition, local authorities were required by statute to carry out appropriate assessments of the needs of former Preserved Rights Residents.[4]By 2002, Mr and Mrs Green had become strongly dissatisfied with the rate paid for the care of Preserved Rights Residents. Costs had gone up higher than the increase in benefit. Once the new regime was in place, Mr and Mrs Green expected the local authority in whose area the Home was situated, WSCC, to be ready to pay a higher (and in their view more realistic) rate than Income Support at the Higher Level. It would seem that the Government itself contemplated a rise in fees for, in the course of answering a question from Baroness Greengross in the House of Lords on 27 May 2002 whether the funding for the transfer of Preserved Rights Residents to local authorities included an amount to meet the shortfall between Income Support and the full cost of care, the Parliamentary Under-Secretary of State for the DWP (Baroness Hollis) stated:
“The transfer [of resources] was supplemented by an additional sum of £100 million per year for Great Britain to cover the costs faced by local authorities; that is, the shortfall between care home fees and preserved rights limits.”
[5]On behalf of Amberley Ltd, Mr Green by letter dated 14 March 2002 demanded that WSCC pay care fees of £341.00 per week per resident and over the next six years raised these rates to £355, £366.40, £379, £398, £435 and £445.44, respectively. WSCC, however, refused to accept these rates and insisted on paying only in accordance with its published schedule of maximum rates for accommodation in registered care homes. These rates were significantly lower than the rates demanded by Mr Green. The result was an acrimonious correspondence over the next six years in which Mr Green was very critical of WSCC and threatened more than once that Amberley Ltd would sue for the difference between its published rates and the rates paid by WSCC.[6]Some time around the end of June 2002 half of the Home was closed and a number of Preserved Rights Residents were moved by WSCC to alternative accommodation. The Home was totally closed on 1 August 2008.

WSCC’s claim for overpayments in respect of Mr JF

[7]From April 2002 to April 2008 WSCC paid Amberley Ltd for the care of a resident, JF, who had originally been placed some years previously in the Home by the Royal Borough of Windsor and Maidenhead (“WMRBC”). At the same time Amberley Ltd was receiving fees from WMRBC for JF’s care, it being WBRBC which was alone responsible for paying these costs.[8]Amberley Ltd, through Mr Green, was aware that WSCC was paying for JF’s accommodation in the Home under the mistaken belief that it was obliged to do so. Mr Green did not specifically inform WSCC that WMRBC was paying for JF’s care. In his view, Amberley Ltd was entitled to retain the sums paid by WSCC in respect of JF on account of the much larger sums that Amberley Ltd was claiming for the Preserved Rights Residents. At the end of each year in the period 2003 to 2008, Amberley Ltd sent an invoice to WSCC for outstanding fees which set out the total invoiced amount and included a credit item: “Less monies received from West Sussex County Council including overpayment”.[9]WSCC claims that the sum due is £64,064.91. Amberley Ltd concedes that WSCC has a good claim for the sums paid by mistake in respect of JF but contends that it is entitled to set off against this sum its claim for the sums it says is due for the accommodation of the former Preserved Rights Residents in the years 2002 - 2008. In the alternative, Amberley Ltd contends that part of the claimed sum is statute-barred. I shall return to WSCC’s claim after I have dealt with the Counterclaim.[10]BS and RW were Preserved Rights Residents whose cost of care in the Home became the responsibility of WSCC in April 2002. Both had their financial needs assessed by WSCC in April 2002 and as a result were notified that they had to make a contribution towards the cost of their accommodation by paying to Amberley Ltd the amounts they received by way of Social Security Benefits, less a prescribed amount of pocket money. Over time, BS’s and RW’s benefits increased and accordingly the sums they paid to Amberley Ltd by way of contribution increased proportionately In the case of RW, the increase in benefits occurred on his reaching 60 years of age, at which point he started to receive Pension Credit. . Over the same period, WSCC’s scheduled maximum rates also increased but WSCC paid for BS’s and RW’s care on the basis that BS’s and RW’s contributions remained the same, with the result that the sums it paid to Amberley were larger than they would have been if the increase in these residents’ benefits had been taken into account.[11]Amberley Ltd sent monthly invoices to WSCC for the fees due in respect of BS and RW which specified accurately the “DSS contribution per week”. These invoices were not required to be sent by the Council which, after it began making payment by BACS, vouched care fee payments using other documents. WSCC accordingly ignored Amberley Ltd’s invoices, consigning them to the waste paper bin.[12]At the same time, Mr Green and Amberley Ltd knew through WSCC’s Remittance Advices that WSCC was paying for BS’s and RW’s residential care on the basis that their benefits had not increased.[13]WSCC’s claim is brought under Section 45(1) of the National Assistance Act 1948, which provides: If, whether fraudulently or otherwise, any person misrepresents or fails to disclose any material fact, and in consequence of the misrepresentation or failure —(a) a local authority incur any expenditure under Part III of this Act, or(b) any sum recoverable under this Act by a local authority is not recovered, the authority shall be entitled to recover the amount thereof from the said person.[14]As I understood him, it was accepted by Mr Susman QC for the Defendants that there had been no disclosure to WSCC of BS’s and RW’s increased level of benefits sufficient for the purposes of s. 45 (1) and that the increased benefits were “material facts” within the provision. The question therefore is whether the Defendants came under a duty to disclose these benefit increases by virtue of the s45 (1). Mr Stagg for WSCC submitted that the Defendants were obliged to disclose to WSCC the increased benefits because such disclosure was “reasonably to be expected”. In support of this submission, Mr Stagg drew my attention to the following passage in para 42 of the judgement of the Social Security Commissioner in R(SB) 21/82:
“…. I consider that a ‘failure’ to disclose necessarily imports the concept of some breach of obligation, moral or legal – ie the non-disclosure must have occurred in circumstances in which, at lowest, disclosure by the person in question was reasonably to be expected….”
[15]In my judgement, there was no obligation, legal or moral, on either of the Defendants to disclose BS’s and RW’s increased benefits to WSCC. I say this for the following reasons:(i) I accept Mr Green’s evidence that BS had his own bank account and ran his own affairs;(ii) although RW was assisted by Mr and/or Mrs Green and/or members of the staff in obtaining his benefits against a signed coupon because he would not leave the Home unaccompanied, there was no evidence that in assisting RW in this manner the Defendants were doing anything other than acting at the request and thus on the instructions of RW;(iii) there was no evidence that Mr Green or Amberley Ltd provided or was called upon by WSCC to provide information as to the financial position of any resident which was to be used by WSCC in fixing residents’ contributions to the cost of their care;(iv) WSCC had ample means and could be expected to discover for itself the level of benefits received by BS and RW by making suitable enquiries addressed directly to these residents; and(v) the Defendants were entitled to pursue a policy of insisting that the WSCC should pay the charges fixed by Amberley Ltd for the care of BS and RW and not the charges proposed by WSCC.[16]Accordingly, in my judgement, WSCC’s claim under s. 45 (1) in respect of BS and RW fails.

The Counterclaim

[17]Amberley Ltd counterclaims for sums it is alleges are due for the provision of accommodation to the Preserved Rights Residents. The claim is put three alternative ways. The primary claim and the first alternative claim are made under s. 50 (6) of the Health and Social Care Act 2001. In order to under to make sense of s. 50 (6), it is necessary to consider it within the context of the preceding subsections of s.50. (a). section 26A of the National Assistance Act 1948 (c. 29) (which prevents local authorities in England or Wales providing residential accommodation for persons who were in such accommodation on 31st March 1993), and (b). section 86A of the Social Work (Scotland) Act 1968 (c. 49) (which makes corresponding provision for Scotland), shall cease to have effect on the appointed day. (2). For the purposes of this section a “qualifying person” is— (a). (in relation to any time before the appointed day) a person to whom section 26A(1) or section 86A(1) applies; or (b). (in relation to any later time) a person to whom either of those sections applied immediately before that day. (3). Where a qualifying person is immediately before the appointed day ordinarily resident in relevant premises in the area of a local authority (“the responsible authority”), that authority shall secure that—(a) as from that day, or(b) as soon thereafter as is reasonably practicable, the person is provided with such community care services with respect to his accommodation as appear to the authority to be appropriate having regard to his needs as assessed under section 47(1)(a) of the 1990 Act (assessment of needs for community care services in England or Wales) or section 12A(1)(a) of the 1968 Act (corresponding provision for Scotland). (4). Each local authority shall accordingly— (a) use their best endeavours to identify every person ordinarily resident in relevant premises in their area who is a qualifying person; and (b) carry out such a programme of assessments under section 47(1)(a) or 12A(1)(a) in respect of persons so identified as appears to the authority to be required for the purpose of enabling them to discharge their duty under subsection (3) in relation to such persons. (5). Where a person— (a) is a qualifying person immediately before the appointed day, and (b) is provided by the responsible authority with any community care services with respect to his accommodation in accordance with subsection (3), his existing arrangements shall, by virtue of this subsection, terminate on the date as from which he is provided with those services. (6). Where any such person is not provided with any such services as from the appointed day, any liability of his to make any payment under his existing arrangements in respect of any period (or part of a period) falling within the period beginning with the appointed day and ending with— (a) the date as from which he is provided with any such services, or (b) the date on which he notifies (or is in accordance with regulations to be treated as notifying) the responsible authority that he does not wish to be provided with any such services, shall instead be a liability of the responsible authority.[18]It is common ground that the liability of the Home’s Preserved Rights Residents to make payment under their “existing arrangements” for their care became the liability of WSCC under s. 50 (6) at the time the new residential care regime was implemented on 8th April 2002. Amberley Ltd’s primary claim is that when the new regime came into effect, the great majority of these residents were contractually bound to pay such prices as Amberley charged from time to time and that accordingly WSCC is liable for the difference between Amberley Ltd’s prices down to the closure of the Home and the sums paid by WSCC in accordance with its schedule of maximum rates.[19]At the outset of the trial it was Amberley Ltd’s case that all 17 residents in respect of which it was claiming had before 1992 entered into a “Contract of Residence” which provided, inter alia: Fees The level of fees is subject to review as costs increase. No fee level is stated here as standard, due to the reviews. The level of fees applicable at the time of your admission is £…… per week. Payment of the fee covers full board and lodging.

Fees

[20]In the period between the signing of the Contracts of Residence and April 2002, the sum charged by Amberley Ltd was equivalent to Income Support at the Higher Level.[21]Mr Green had been able to find only three copies of such contracts and these bore the heading “Amberley Residential Care Homes Ltd”, which was the name it had been intended should be given to the company to be formed to take over the business but which in the event was never used. Mr Green claimed that all 17 residents must have signed a Contract of Residence because WSCC’s Registration and Inspection Unit required the issue of contracts to residents and were provided with a copy of the contract as proof of compliance with this requirement. However, when he was half-way through his evidence, Mr Green recollected that 4 of the 17 residents “and maybe one or two others” had come direct from hospital and had not signed a Contract of Residence. Instead, in 2002, these residents were signed off by the originating local authorities and the responsibility to pay for their care passed to WSCC. It also appeared that one of the 17 had died. In his closing submissions Mr Susman accepted that no claim under s. 50 (6) based on an individual contract could be made in respect of any of the residents who were signed off by the originating authorities in 2002 (“the signed off residents”).[22]Mr Susman further submitted that if I were to hold that any Preserved Rights Resident (other than a signed off resident) did not sign a Contract of Residence, I should nonetheless infer that he or she had entered into a contract with Amberley Ltd on the same terms as to price as are contained in the Contract of Residence. In other words, said Mr Susman, it is to be inferred that such residents agreed to pay Amberley Ltd’s “list price”.[23]Mr Susman argued that the effect of the wording in the Contract of Residence set out in paragraph above 19 was that Amberley Ltd (which it is conceded had become a party by novation) could unilaterally raise the fee payable by the residents to a reasonable extent to take account of rises in costs and that this price rise mechanism was part of the “existing arrangements” within s. 50 (6). I cannot accept this submission. As Moore-Bick J observed in Esso Petroleum Company Limited v David and Christine Addison & Ors [2003] EWHC 1730 (Comm), para 132, parties are free to make an arrangement under which one of them effectively puts himself in the power of the other in relation to some aspect of the contract but one would not readily accept that it was what the parties intended. In my judgement the meaning and effect of the words relied on by Mr Susman is that whilst Amberley Ltd has the right to revise the weekly fee the resident has the right to choose whether to accept the increase or to move to other accommodation. It follows that in April 2002 there was no right vested in Amberley Ltd unilaterally to charge the fees for which it has invoiced WSCC in the period 2002 to 2008. In addition, there is no basis for concluding that the residents agreed to pay the fees for which Amberley Ltd invoiced WSCC. It follows that the primary claim advanced by Amberley Ltd fails.[24]The first alternative way in which Amberley Ltd puts its counterclaim is to contend that the “existing arrangements” included a right to claim a reasonable sum by way of a quantum meruit, a reasonable sum being the fees paid to Amberley Ltd by local authorities other than WSCC for certain residents not included in the list of 17.[25]It was Mrs Green’s clear recollection that 4 of the 17 listed residents had come direct from hospital and that one had died. I accept this evidence. As to the remaining 12 residents I find that either each signed a Contract of Residence or there is to be inferred a contract between each such resident and Amberley Ltd on the same terms as the written contract. Thus, at April 2002, each of the remaining 12 residents had a contract under which Amberley Ltd was to provide accommodation at a rate equivalent to Income Support at the Higher Level, subject to Amberley Ltd being at liberty to propose increases which if accepted would lead to a variation of the contract, and if rejected, would lead to the resident having to leave the Home, unless Amberley Ltd acquiesced in his continuing to remain in residence.[26]In my judgement, these contractual terms leave no room for a right to a quantum meruit as at 8 April 2002 since, as at that date, the whole matter of price was governed by the contract. If at a later date Amberley Ltd had given notice of a price rise which was not accepted by any of the 12 residents, but Amberley Ltd had continued to provide accommodation to all 12 under protest, any right to recover from a non-assenting resident a greater sum than that paid by WSCC would not have been a liability of the resident under arrangements existing as at 8 April 2002 and therefore would not be have been transferred to WSCC under s.50 (6).[27]Even if I am wrong about this and there was an existing arrangement to pay a reasonable price by way of quantum meruit or under s. 15 of the Supply of Goods and Services Act 1982, for the reasons given in paragraphs 38-40 below, Amberley Ltd has failed to prove that a reasonable price would have exceeded the maximum rates paid by WSCC.[28]Where, as at 8 April 2002, there was no contract between Amberley Ltd and any of the 17 residents, as is the case in respect of the 4 signed off residents, the position is different. In these cases, Amberley Ltd had a right under a quantum meruit or s.15 of the Supply of Goods and Services Act 1982 to be paid a reasonable sum for the accommodation supplied and such a right was part of the existing arrangements within s. 50 (6).[29]Mr Stagg argued that WSCC’s liability under s. 50 (6) had terminated under s.50 (5) because the needs of all the Preserved Rights Residents had been assessed and these residents had been provided by WSCC with community care services with respect to their accommodation by allowing them to continue to live at the Home and making the payments they made.[30]Ms Caroline Matkin and Ms Marlene Kirkman testified that in 2002 they assessed the needs of the Preserved Rights Residents in the Home. I accept their evidence that they saw each such resident individually, met with Mr Green and would also have looked at the care plans and notes held at the Home and spoken to any Community Psychiatric Nurse involved with any of the residents. I have no hesitation in finding that the Preserved Rights Residents were properly and competently assessed under s. 50 (4) (b).[31]Were the residents provided by WSCC with community care services with respect to their accommodation? This depends on whether WSCC can only be regarded as having provided the residents with such services if the rates payable to Amberley Ltd had been determined as between Amberley Ltd and WSCC. In Chief Adjudication Officer v Quinn [1996] 1 WLR 1184, the ultimate question was to how much Income Support under the Social Security Act 1986 each claimant was entitled. In each case the claimant was in accommodation the management of which had been transferred by the local authority to a voluntary organisation. The adjudication officer took into account the fact that the claimant was living in “residential accommodation” and it accordingly fell to the House of Lords to decide whether the claimants were in residential accommodation provided pursuant to s. 26 of the National Assistance Act 1948. This in turn raised the question whether in the case of each claimant there was an arrangement that complied with s. 26 (2) of the 1948 Act. 26 (2) “Any arrangements made by virtue of this section shall provide for the making by the local authority to the other party thereto of payments in respect of the accommodation provided at such rates as may be determined by or under the arrangements and subject to subsection (3A) below the local authority shall recover from each person for whom accommodation is provided under the arrangements the amount of the refund which he is liable to make in accordance with t he following provisions of this section.” The principal judgement was given by Lord Slynn, who held At 1192 B-H. that arrangements for the provision of Part III accommodation under s. 26 must include a provision for payments to be made by the local authority to the voluntary organisation at the rates determined by or under the arrangements. In his opinion, this resulted not just from the plain meaning of the words in subsection (2) but also from practical necessity. All of the other members of the House agreed with the judgement of Lord Slynn.[32]In my judgement, the approach of the House of Lords in Quinn applies equally to s. 50 (5) & (6) of the 2001 Act. Mr Stagg argued that Quinn was to be distinguished because there there was no obligation to pay at any particular rate whereas in the case under consideration there is an obligation to pay a reasonable sum. I cannot accept this argument. In my opinion it is plain from Lord Slynn’s reasoning that a local authority does not provide a qualifying person with community care services with respect to his accommodation unless it has agreed the rates that are to be paid for such services.[33]Mr Stagg submitted in the alternative that a Master Agreement signed on 23 March 1993 (“the MA”) governed the situation. This agreement was signed by Mr Green prior to Amberley Ltd’s incorporation and was concluded in contemplation of the reforms made under Part III of the National Health Service and Community Care Act 1990. It is common ground that Amberley Ltd became a party to the agreement by novation. The MA provides that it is the master agreement for the provision of care by the Home on behalf of WSCC and states that those services will commence on 1st April 1993 and will continue until further notice. Condition 21.2 provides that the rate to be paid by the Council shall be that for the appropriate care group and category of care and condition 21.1 provides that the rates of payment will be subject to annual review on 1 April.[34]Condition 7.2.2 provides: Residents/patients admitted before 1st April, 1993, and who are no longer able to finance their care, will be the responsibility of the Department of Social Security.[35]Condition 7.3.1 provides: The admission of a client to a Home, in circumstances other than emergencies, requires the authorisation of the Council which is given by completion of Part D Schedule D (i)(a). The Council will not accept responsibility for fees of residents who have not been assessed and placed by the Council.[36]Even after the reforms made under Part III of the National Health Service and Community Care Act 1990 local authorities were kept out of providing for the residential care of Preserved Rights Residents. As stated above, the obligation to provide care for these residents only arose after sections 50 to 52 of the Health and Social Care Act 2001 came into effect. It follows in my opinion that the MA was never intended to and does not apply to Preserved Rights Residents. It was for this reason I am sure that no documents in Scheduled form were ever executed under condition 7.3.1 in respect of any of the Preserved Rights Residents. Mr Stagg sought to argue that condition 7.2.2 did not apply to Preserved Rights Residents because they were never able to finance their own care, and condition 7.3.1 did not apply to such residents because they had been in residence for many years before the MA. But these arguments miss the point. The entire MA does not apply to Preserved Rights Residents because it was never intended to apply to them; accordingly, it is fruitless to embark upon the construction of those particular conditions.[37]I accordingly hold that the accommodation provided for the Preserved Rights Residents is not governed by the contractual terms contained in the MA.[38]I turn then to consider whether Amberley Ltd has established in respect of the 4 signed off residents who were not party to any contract that a reasonable price would have exceeded the rates paid by WSCC. This part of Amberley Ltd’s case was thin to say the least. No convincing evidence of the costs of providing care was adduced nor was the court provided with a survey of rates charged by other homes whether in Sussex or elsewhere in the country. All that was relied on was the fact that some local authorities other than WSCC paid Amberley Ltd more than WSCC for the accommodation provided to certain residents.[39]In contrast to this insubstantial material, evidence was given on behalf of the claimant by Mr Nigel Turner, WSCC’s Strategic Manager – Commissioning and Contracts in the Adults and Children’s Services Department for the last 16 years, that:(i) WSCC had no difficulty securing accommodation and care at its usual maximum rates for all those people assessed as having residential care needs;(ii) the supply of residential care within West Sussex and particularly along the coastal area had resulted in competition between care home proprietors;(iii) WSCC’s maximum rates were comparable to the rates paid by other local authorities in the south-east region with a similar care home market; and(iv) East Sussex County Council, Hampshire County Council, Portsmouth City Council and Southampton City Council all had maximum rates for the residential care of people who required care by virtue of past or present mental disorder within £5 (+/-) of WSCC’s rate.[40]I accept this evidence and conclude that WSCC’s maximum rates substantially reflected the state of the care home market in West Sussex and the surrounding area. It follows, in my opinion, that WSCC’s maximum rates constituted a reasonable level of remuneration for the care provided by Amberley Ltd not only to the 4 signed off residents who had no contract with Amberley Ltd but also to the rest of the 17 residents identified by the defendants.[41]The final way in which Amberley Ltd puts its counterclaim is to say that a supervening contract is to be inferred from the parties’ conduct under which WSCC became obliged to pay the prices published by Amberley Ltd. Mr Susman argued that this inference is to be drawn from the fact that Amberley Ltd consistently gave notice of its prices and WSCC, instead of withdrawing the residents, acquiesced in them continuing to be residents in the Home. Mr Susman submitted that it was easier for WSCC to avoid a contract coming into existence on Amberley Ltd’s terms than it was for Amberley Ltd to avoid a contract coming into existence on WSCC’s terms, because WSCC were in a position to find alternative accommodation for the residents whereas the only option for Amberley Ltd was to evict the residents or close the Home, which were steps that a residential home owner would be reluctant to take.[42]In my judgement, the contract contended for by Amberley Ltd cannot be inferred from the parties’ conduct. True it is that Amberley Ltd made it clear what its prices were and conferred a benefit on WSCC by continuing to provide accommodation for the residents but equally, WSCC made it abundantly clear what it was prepared to pay for residential care and Amberley Ltd continued to provide accommodation in the full knowledge thereof. WSCC cannot therefore in my view be treated as having accepted Amberley Ltd’s offer to provide accommodation on its terms as to price, particularly since WSCC took no positive steps other than to pay in accordance with its own schedule of rates. In short, Amberley Ltd took the risk that it might not be entitled to charge at its announced rates whilst at the same time earning a return on its capital by receiving the fees paid by WSCC.[43]Mr Stagg submitted that I should find that there was a supervening contract on WSCC’s terms on the basis that WSCC had offered to pay for the residents’ care in accordance with its rates published rates and Amberley Ltd had accepted the offer by continuing to provide residential care and accepting payment in accordance with WSCC’s maximum rates. It is not necessary to go as far as accepting Mr Stagg’s submission in order to reject Amberley’s inferred contract claim. In my judgement, no contract between Amberley Ltd and WSCC governing the rate to be paid for the residential care of the Preserved Rights Residents came into existence. Although Amberley Ltd continued to provide residential care and received payment in accordance with WSCC’s maximum rates, it continually insisted that it should be paid at its higher rates and cannot in these circumstances be said to have accepted WSCC’s terms.[44]It follows that none of the ways in which Amberley Ltd put its counterclaim succeeds and the defendants have no set off against WSCC’s claim for overpayments in respect of JF.[45]I would add that the only restitutionary claims Amberley Ltd advances are the claims for a reasonable sum under s.50 (6) of the 2001 Act which I have dealt with above. If it had advanced a supervening free-standing restitutionary claim, such a claim would in my opinion have failed for the reasons given in paragraphs 38-40 above.[46]It is common ground that unless the limitation period is extended under s.32 of the Limitation Act 1980, WSCC’s claim in respect of overpayments in respect of Mr JF can go back only to 28th August 2002.[47]Section 32(1) &(2) of the Limitation Act 1980 provides: 32.-(l) Subject to subsection (3) below, where in the case of any action for which a period of limitation is prescribed by this Act, either- (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or (c) the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. References in this subsection to the defendant include referencesto the defendant's agent and to any person through whomthe defendant claims and his agent. (2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.[48]In my judgement, Mr Green and Amberley Ltd did not deliberately conceal the fact that WSCC was paying for JF under a mistake of fact. They did nothing to hide from WSCC its mistake. Indeed, as stated above, at the end of each year in the period 2003 to 2008, Amberley Ltd sent an invoice to WSCC for outstanding fees which set out the total invoiced amount and included a credit item: “Less monies received from West Sussex County Council including overpayment”.[49]I am also of the view that WSCC could with reasonable diligence have discovered that it was paying for Mr JF by mistake. Once WSCC had become obliged to arrange and pay for residents in the Home, it ought to have obtained a list of the names of the residents and checked to see if each was indeed to be paid for by WSCC. If this had been competently done, WSCC would have appreciated that payment for Mr JF’s care was not its responsibility but that of WMRBC. In addition, I think that WSCC ought to have scrutinised Amberley Ltd’s invoices, even though they were not required to be presented, and followed up the statement therein that referred to an overpayment.[50]For these reasons, I conclude that the limitation period does not stand to be extended, with the result that there can be no claim for overpayments in respect of JF made before 28th August 2002. Conclusions (1). WSCC’s claim for overpayments in respect of Mr JF succeeds, but not in respect of overpayments made before 28th August 2002. (2). WSCC’s claim against Amberley Ltd and Mr Green under s. 45 (1) of the National Assistance Act 1948 is dismissed. (3). The counterclaim is dismissed.[51]I shall receive submissions as to the precise sum to which WSCC is entitled and whether interest should be paid thereon, and if so, at what rate.