R (Booker) v Oldham Primary Care Trust

Hearing dates: 6–7 October 2010

HH Judge Pelling QC:

Introduction

The Claimant, who is aged 19, having been born on 17 May 1991, is a ventilator dependent tetraplegic as the result of injuries sustained in a road traffic accident that occurred on 6 January 2001 when she was nine years old. The Claimant brought proceedings in relation to the accident which were settled on 20 October 2009 on terms which were approved by Irwin J that included an agreement by the defendant to those proceedings to provide periodic payments starting from 15 December 2011 to enable the Claimant to fund privately the provision of her continuing health and social care needs. With knowledge of the terms of that order, the Defendant to these proceedings (“the PCT”) decided that it would not provide care for the Claimant beyond 1 September 2010, later extended to 1 October 2010, on the basis that she had no reasonable requirement for the provision of such care beyond that date by reason of the terms of the settlement of her injury claim which I set out in more detail below.

This is the hearing of the Claimant's application for judicial review of the decision by the PCT to withdraw nursing and social care from the Claimant with effect from 1 October 2010. Permission was granted to bring these proceedings on 22 September 2010 subject to the proviso that consideration of whether permission to apply for judicial review ought to be refused on the ground of delay in making the application would be deferred to be considered at the substantive hearing.

Factual Background

The Claimant commenced proceedings against Ms Suzanne Taylor (“the injury claim defendant”) in the Queen's Bench Division, at Manchester District Registry (“the injury claim”) in which the injury claim defendant was represented by DWF the solicitors who act in these proceedings on behalf of the Interested Party, Direct Line Insurance Plc who are Ms Taylor's motor accident insurers. Liability was not disputed by the injury claim defendant and the Claim proceeded to trial in relation to quantum only.

In summary, the consent order provided that the Claimant was to receive a lump sum payment of £2,950,000 and periodical payments commencing on 15 December 2011 in the annual sum of £247,500. As part of the Order, the injury claim defendant, the Interested Party and the Claimant each entered into a number of binding undertakings. These undertakings were designed to eliminate the possibility of a double recovery by the Claimant in the event that she continued to be cared for by the PCT after the 15 December 2011, and to facilitate the commencement of periodical payments from 15 December 2011 and the provision of care for the Claimant prior to that date in the event that such care was not provided by the PCT. With this last point in mind, the Claimant agreed to use her best endeavours to maintain the NHS funded care team in place during the period down to 15 December 2011 and in turn the Interested Party agreed that if, notwithstanding the Claimant's reasonable endeavours, the NHS provided care package was removed or reduced, the Interested Party would indemnify the Claimant in respect of the cost of providing replacement care.

In relation to the period prior to 15 December 2011, the terms attached to the consent order provided at paragraph 12 that:

“For the period from 15 December, 2009 to 14 December 2011 inclusive, Direct Line Insurance Plc will make payments to the Claimant only insofar as the same are required by the terms of the indemnity as more fully set out in Schedule 2 hereto and shall be under no obligation to make any periodical payment.”

The settlement agreement recognised that the Claimant had been assessed by the PCT using the Decision—Support Tool for NHS Continuing Healthcare as requiring the support of two carers providing 24-hour support seven days each week from the date when the Claimant reached the age of 18 years and the parental obligation to provide care ceased. The risk of the PCT failing to provide such care was addressed by paragraph 1.3 of Schedule 2 to the settlement agreement, which provided that:

“In the event that the PCT fails to provide two full-time carers covering 24 hours per day for the entire period up to 15 December 2011, then by the undertaking and indemnity hereafter provided, the Defendant agrees to indemnify the Claimant in respect of the reasonable cost to the Claimant of replacing the hours of care lost by reason of the failure of the PCT to provide care as aforesaid.”

The injury claim defendant undertook that:

“… in the event that the level of PCT provided care falls below that identified in paragraph 1.1 above, and the Claimant replaces that care by privately funded carers, then the Claimant shall be entitled to a payment from the Defendant of the sum required to supplement the care provided by the PCT to be measured by reference to the hourly rate paid by the Claimant in order to replace the shortfall in the PCT provided care subject to an annual cap of £247,500.”

However, the undertaking was subject to the following qualifications:

“…

2. In order to facilitate such agreement, the Claimant shall, if requested, provide reasonable evidence of the withdrawal of or reduction in the PCT provided care and the fact of and cost incurred or likely to be incurred in replacement of the same.

3. Upon being provided with and being satisfied as to such evidence the defendant shall make and continue to make payment of the sum required to replace the said PCT care.

4. Any payment by the defendant in respect of such care shall continue for so long as the replacement care is in place and paid for by the Claimant save that any such liability under this undertaking shall cease on 14 December 2011.”

I refer to these undertakings as the “safety net undertakings” hereafter. Cross undertakings were given by the Claimant to the following effect:

“The Claimant hereby undertakes that she will exercise reasonable endeavours to secure and/or maintain the provision of care relating to the period prior to 15 December 2011 by the PCT to meet her assessed needs as set out in paragraph 1.1 above. For the avoidance of doubt the said undertaking shall include, and the Claimant agrees to:

1. Co-operate with the PCT in all respects reasonably necessary to ensure the provision or continuation of any statutory funding, including but not limited to participation in any assessments that may be required in order to determine the Claimant's continuing eligibility for such statutory funding;

2. Participate in any internal complaint and to take such other reasonable steps in connection with any complaint or other action relating to the Claimant's entitlement to receive statutory funding, any actual or threatened reduction of the same or any material change in the manner of its provision where such change likely to affect the level of any such funding;

3. Lend her name to any action brought where such action is reasonably required to discharge the obligation to use reasonable endeavours and where the same is reasonably brought to the purpose of resolving any dispute or determining an issue relating to his entitlement to statutory funding;

4. And hereby provides authority and gives any consent necessary in order to allow Direct Line Insurance Plc to communicate with the PCT to obtain access to such documents and other records as are held by the PCT relating to the Claimant that may be relevant to the Claimant's entitlement to or continuation of statutory funding.”

The pre-settlement positions adopted by the parties to the injury claim in relation to the future provision of care were set out in the Claimant's schedule of loss and the injury claim defendant's counter-schedule of loss filed in injury claim proceedings. The Claimant's position had been that provision for privately funded care ought to be made from the date of judgment or settlement—see pages 2 and 23 of the Claimant's schedule. The injury claim defendant's position, as set out on page 17 of the counter-schedule, was that the Claimant had received all her care from the PCT pursuant to the PCT's statutory duties and that on the balance of probability the Claimant would continue to utilise a PCT provided and funded package and thus that no award for future care ought to be made.

On 8 September 2009, HH Judge Holman sitting as a judge of the High Court gave permission to the parties to the injury claim to obtain from the PCT a statement as to (i) the Claimant's current care regime and (ii) any changes that it was intended to implement to that regime. The parties wrote to the PCT with a view to obtaining the evidence that Judge Holman had given the parties permission to adduce. This resulted in a letter from Hempsons, the PCT's solicitors, dated 29 September 2009 under cover of which a statement from Ms Anita Rolfe, a senior official of the PCT, was supplied. In so far as is material for present purposes, the letter said:

“You will see that the PCT takes the view that the Claimant has made an election to seek privately funded community care....