Surrey County Council v NHS Lincolnshire Clinical Commissioning Group

A public body may pursue a private-law restitution claim against another public body where the claim can be determined without reviewing the validity of an unresolved specialist decision. The exclusivity principle does not create a general bar to private-law claims merely because a breach of public duty is an ingredient. Unjust enrichment requires enrichment, enrichment at the claimant’s expense, unjustness and absence of defences. A claimant’s statutory obligation to provide services does not necessarily defeat restitution where that obligation resulted from the defendant’s unlawful refusal to perform its own statutory duty. A defendant relying on change of position must prove a causal connection between the enrichment and the alleged expenditure; general assertions that saved funds were spent on other service users are insufficient.

Surrey County Council sought restitution from NHS Lincolnshire Clinical Commissioning Group for care and accommodation costs paid for JD, an autistic young man placed in Lincolnshire. Lincolnshire’s predecessor, a primary care trust, had unlawfully refused in 2008 and 2010 to assess JD for NHS continuing healthcare, wrongly concluding that it was not the responsible commissioner. Lincolnshire later accepted responsibility from February 2015.

The claim was limited by agreement to payments made after 31 July 2013. The issues were whether the claim was barred because the underlying decisions should have been challenged by judicial review, whether limitation applied, whether the facts fell within an established or properly extendable category of unjust enrichment, whether Lincolnshire had been enriched, and whether change of position was available.

1. Private-law route. The claim was not barred by the exclusivity principle in O’Reilly v Mackman. Applying the approach in Richards v Worcestershire County Council, the claim concerned recovery of the cost of services, not a direct challenge to the validity of a specialist eligibility decision. The court could determine the private right without trespassing into specialist decision-making. The specific claim had no wider public impact, and justice did not require judicial review.
2. Limitation. Under section 5 of the Limitation Act 1980, the cause of action accrued when each payment was made and the defendant received the benefit. The claim was therefore limited, but not barred, in respect of payments made after 31 July 2013.
3. Unjust enrichment. The recognised four-part inquiry was enrichment, enrichment at the claimant’s expense, unjustness and absence of defences. English law develops incrementally by recognised categories or principled extensions. The claim was not within the Woolwich principle, but the court accepted a principled extension in the circumstances. Surrey had discharged a liability which, absent Lincolnshire’s unlawful decisions, would probably have been Lincolnshire’s. Its statutory obligation to fund JD did not defeat restitution because that obligation arose from Lincolnshire’s unlawful failure to assess and accept responsibility.
4. Enrichment and change of position. Lincolnshire was enriched by being freed to spend an equivalent sum on other patients. Change of position was available in principle because the claim did not fall squarely within Woolwich. However, the CCG provided no budgets or expenditure evidence and relied only on general assertion and speculation. It failed to establish the necessary causal connection between the enrichment and any change of position.
5. Disposition. The claim was allowed.