Richards v Worcestershire County Council & Anor

A statutory duty to provide after-care under Mental Health Act 1983, section 117, does not automatically create a private claim in tort. That principle does not determine whether a claimant may pursue restitution for unjust enrichment. A statutory scheme excludes a common-law remedy only where the legislation shows that intention. A claimant must nevertheless establish a recognised unjust factor; failure to perform a public-law duty is not, by itself, such a factor. Payments made under mistake may potentially support restitution where the defendants were enriched at the claimant’s expense by the discharge of an obligation they owed. A private restitutionary claim may proceed in ordinary civil proceedings where it asserts a private right and raises public-law issues only incidentally.

The claimant had been detained under section 3 of the Mental Health Act 1983 and discharged in 2004 subject to after-care under supervision. He alleged that the defendants were responsible under section 117 for care services which had instead been privately funded by his deputy.

The claimant sought restitution or recoupment of approximately £644,646. The defendants applied to strike out the proceedings, arguing that section 117 created no private-law cause of action and that any challenge to the performance of their statutory duties had to be brought by judicial review. The issues were whether a restitutionary claim was legally possible and whether it could be pursued by a Part 7 claim.

1. The strike-out application was refused. The defendants had not shown that the claimant could not have a restitutionary claim or that the claim had to be brought by judicial review.

2. Clunis v Camden and Islington HA [1998] QB 978 concerned damages for breach of statutory duty and an alleged common-law duty of care. Its conclusion that section 117 did not create a private-law cause of action did not determine the availability of unjust enrichment. The repeal of section 124 did not itself create such a cause of action.

3. The Mental Health Act 1983 did not contain a comprehensive and exclusive scheme which excluded a common-law claim in unjust enrichment. The absence of statutory exclusion did not, however, establish liability. The claimant still had to identify a recognised unjust factor.

4. Failure to perform a public-law duty had not been shown to constitute an unjust factor by itself. Mistake was a recognised unjust factor. Although the payments had not been made directly to the defendants, it was seriously arguable that the defendants had been enriched at the claimant’s expense through the discharge of obligations which they ought to have borne.

5. The procedural exclusivity principle in O’Reilly v Mackman [1983] 2 AC 237 was subject to established exceptions. The claimant asserted a private restitutionary right and did not challenge the defendants’ assessment of his section 117 needs or their decisions about the services required. Public-law issues were therefore incidental to the private claim. The financial remedy sought, the possible factual disputes, and uncertainty about whether judicial review time limits applied supported allowing the Part 7 proceedings to continue.

First-instance decision. No earlier decision in the same proceedings is stated.