A, R (on the application of) v North Central London Integrated Care Board

Under section 42(3) of the Children and Families Act 2014, a responsible commissioning body has an absolute and non-delegable duty to arrange the health care specified in an EHC plan. An outdated plan, or an incomplete draft, cannot discharge that duty. Judicial review remedies remain discretionary. Where the breach is historical, an advanced draft mitigates it, the public body no longer commissions the care and a mandatory order may be impracticable, no order may be appropriate. Restitution was refused where parents chose to fund a preferred provider after lawful termination of the public contract. The expenditure was not caused by the established breach, and it was not unjust for the authority to refuse payment.

A, a severely disabled child receiving continuing care, challenged the commissioning body’s arrangements after it terminated its contract with his existing care provider and appointed a replacement. The judicial review alleged breach of the duty under section 42(3) of the Children and Families Act 2014, irrational termination of the contract and entitlement to restitution of care costs paid by A’s parents.

The High Court granted relief on the statutory-duty ground, dismissed the irrationality ground and rejected restitution: [2024] EWHC 2682 (Admin). On appeal, the commissioning body relied on fresh evidence of an updated draft care plan. The central issues were the admissibility and effect of that draft, the appropriate remedy for the statutory breach, and whether the parents’ expenditure could be recovered in restitution.

Lady Justice Whipple delivered the leading judgment. Lord Justice Males agreed with her reasoning and Lady Justice King agreed.

1. Fresh evidence. CPR 52.21(2)(b) conferred a discretion governed by the overriding objective. The Ladd v Marshall criteria remained relevant and persuasive, although they were not primary rules constituting the power to admit evidence. The August 2024 draft care plan and supporting witness statements were admitted because they were genuine, plainly relevant, potentially influential and necessary to avoid an incomplete factual assessment. The failure by A’s representatives to disclose the draft did not make the appeal unfair, although the duty of candour included a duty not to mislead the court by omission.
2. Statutory duty. The duty under section 42(3) of the Children and Families Act 2014 was absolute and non-delegable. The commissioning body could not rely on best endeavours or transfer responsibility for arranging the specified provision to the care provider. The June 2023 plan was outdated because it pre-dated the review process culminating in the November 2023 EHC plan. The August 2024 document remained only a draft, contained outstanding matters and could not be adopted as a final plan satisfying the statutory duty.
3. Remedy. Judicial review remedies were discretionary and had to be fair and just in the particular case. The breach was historical and had been mitigated by the preparation of the advanced draft. By the relevant time the respondent no longer commissioned the care or had access to A, while A’s parents could press the provider to finalise the plan. A mandatory order therefore risked being impossible to comply with. The cross-appeal was allowed to the extent that the mandatory order was quashed and no order was substituted.
4. Notice to Affirm. It was unnecessary to determine whether the content of the June 2023 plan was adequate. That challenge was in any event out of time. The Notice to Affirm was dismissed.
5. Restitution. The gratuitous-care authorities, including Hunt v Severs [1994] 2 AC QB 454, were not analogous to parents funding third-party care. R (CP) v North East Lincolnshire Council [2019] EWCA Civ 1614 was distinguishable because the expenditure there was directly consequential on a statutory breach. Applying Barton v Gwyn-Jones [2023] UKSC 3, the unjustness requirement was not met: the respondent had lawfully terminated the contract, offered replacement care and the parents chose to fund the existing provider. The costs also lacked a causal nexus with the established breach. The appeal on restitution was dismissed. The question whether payment by the parents rather than A would independently bar recovery was left open.

Further submissions on costs were invited.

1. Court of Appeal (Civil Division) allowed the cross-appeal in part, quashed the mandatory order and substituted no order by way of remedy; dismissed A’s restitution appeal and Notice to Affirm. Further submissions on costs were invited.
2. High Court of Justice, King’s Bench Division, Administrative Court granted relief for breach of the statutory duty, dismissed the irrationality challenge and rejected the restitution claim: [2024] EWHC 2682 (Admin).