[This is a guest post by Arianna Kelly, whose expertise in matters relating to charging for social care in the context of those with decision-making capacity is unrivalled; see also my discussion with her about her book on Social Care Charging]
R(CGT) v West Sussex County Council [2026] EWHC 293 (Admin) (HHJ Auerbach, sitting as a s.9 Judge)#
Summary
CGT (acting through his father, SGT) as litigation friend, brought a judicial review of a decision taken by West Sussex County Council in June 2024 to:
- Refuse to provide care and support to CGT on the basis that he did not financially qualify; and
- Refuse to reimburse CGT for discretionary funding he had been provided since June 2020.
CGT was born in 1994. He suffered a brain injury as an infant which led to his having a severe cognitive impairment, visual impairment, epilepsy and other life-long difficulties. He has lived in supported accommodation since 2013, and has been found to lack capacity to make decisions regarding his property and affairs and to conduct litigation. His mother was appointed as his property and affairs deputy in 2011; following her death in 2013, SGT was appointed as CGT’s property and affairs deputy. It was entirely undisputed that his needs were such that he met the eligibility criteria for care and support under the Care Act 2014.
In 2012, CGT received an award of more than £3.5m from the Criminal Injuries Compensation Authority (CICA), which was paid into a discretionary personal injury trust of which CGT was the sole beneficiary and the Official Solicitor was sole trustee. £2.6m of the award were made in respect of future care costs. The then-deputy (CGT’s mother) and the Official Solicitor gave undertakings to CICA in accepting the award in the relevant part terms, set out at [5]:
“… dependent on my giving the following undertaking and so is in the best interests of [CGT] as defined by section I (5) of the Mental Capacity Act 2005
The undertaking sought by the Criminal Injuries Compensation Authority is that:-
…(2) I, Official Solicitor shall seek from the Court of Protection a limit to the authority of the Deputy whereby no application for public funding of [CGT’s] care under section 21 of the National Assistance Act 1948 can be made unless it is in his best interests either because the funds provided by the Criminal Injuries Compensation Authority for his future care no longer provide for his reasonable care needs or because the restriction is contrary to his best interests for some other reason.
(3) Before making any application for public funding of [CGT’s] care under section 21 of the National Assistance Act 1948 I, [RGT] (Deputy) shall seek a declaration from the Court of Protection that such an application is in his best interests either because the funds provided by the Criminal Injuries Compensation Authority for his future care no longer provides for his reasonable care needs or because the restriction is contrary to his best interests for some other reason and shall not make the application unless the Court of Protection provides such a declaration.
(4) I, [RGT] (Deputy) shall notify the Criminal Injuries Compensation Authority of any application to seek such a declaration from the Court of Protection or to otherwise vary this undertaking and/or any order consequent upon it. I will not object to the Criminal Injuries Compensation Authority making submissions to the Court of Protection in respect of any such application.”
The Form of Acceptance was signed in November 2012. SGT was appointed as CGT’s deputy by the Court of Protection in 2014, and no application was made to the Court of Protection to restrict SGT’s ability to seek public funds; SGT has not made any undertakings that he would not do so.
SGT requested that the local authority undertake a needs assessment (now under the Care Act 2014) in December 2017; the process was protracted, and it appears that the local authority took the view that CGT’s care needs should be met by the PI trust. However, in June 2020, the local authority began to made without prejudice payments to CGT’s care provider.
In October 2023, the local authority ‘applied to the COP seeking to have the terms of SGT’s Deputyship varied, to introduce a condition in respect of any application for public funding of the claimant’s care needs, along the lines envisaged in the 2012 CICA undertakings. On 27 October 2023 the COP dismissed that application and awarded costs against the defendant.’ [11]
In June 2024, the local authority stated that he would cease to make payments towards CGT’s care, and would seek to recoup the amounts spent from 2020-2024, and that the cost of CGT’s care needs should be met from the PI Trust. This was primarily on the basis that CGT’s having publicly-funded care constituted double recovery.
Reviewing the statutory framework, the court identified that Schedule 2 of the Care and Support (Charging and Assessment of Resources) Regulations (by reference to the Income Support Regulations) made provision to disregard capital held in a personal injury trust from the calculation of capital. This is explicitly echoed in the Care and Support Statutory Guidance, which specifically references PI trusts which arise out of CICA payments. The position was the same prior to the introduction of the Care Act 2014 under the National Assistance Act charging framework.
The local authority contended that the relevant regulation ‘should be interpreted as requiring funds in a PI trust to be disregarded, when assessing capital resources, save in respect of the element of a payment provided for the purpose of funding care needs.’ [56]
After surveying Peters v East Midland Strategic Health Authority [2008] EWHC 778 (QB), Tinsley, WNA and BJB, the court readily found that capital in a PI trust is disregarded for the purposes of determining a person’s financial resources under the Care Act 2014, whether or not it is designated for the purposes of meeting care needs. HHJ Auerbach wrote at [57]:
The short answer to this argument is that the language of reg.12 of the 1987 Income Support Regulations, setting out the test which is adopted by para.15 of the 2024 Regulations is, to borrow the words of Dyson LJ in Peters at [30], “clear, unambiguous and unqualified.” In this case the funds in the PI trust are derived from a payment made in consequence of a personal injury to the claimant. Para.33(h) of the Annexe to the Guidance specifically confirms that that applies to such funds provided by the CICA. The reference in reg.12 to “the value of the trust fund and the value of the right to receive any payment under that trust” plainly and unambiguously applies to the whole of the fund and is unqualified in any way.
The court gave short shrift to the local authority’s argument that a ‘purposive’ reading ‘through the prism of public policy’ should be given which would serve to reverse the plain meaning of the Regulations. The court similarly found that it was not ‘unconscionable’ for CGT to seek double recovery, reiterating the extremely clear language of the Court of Appeal in Tinsley on this point.
The court also rejected an argument by the local authority that CGT should be barred from claiming state funding because his mother as predecessor deputy had made this undertaking. The local authority argued that it would be wrong for CGT to benefit from his subsequent deputy resiling from the predecessor deputy’s position. The court found that such an argument had been ‘roundly rejected’ in Tinsley, and did not consider that the CICA context made any relevant difference. There was no deception by the predecessor deputy, and no evidence that the undertakings had not been given in good faith. There was no deception by SGT, who acted on advice. The court further considered that the basis on which the undertakings have been made ‘has since been recognised in authority as inappropriate and ineffective,’ [67] apparently relying on BJB.
The court similarly declined an invitation to use its discretion to decline relief on the basis that the court should actively intervene to prevent double recovery. It was stated in the judgment that Peters undertakings are ‘no longer generally sought or given’ (though the judgment did not address the issue of reverse indemnities). HHJ Auerbach found that:
75. My starting point is that the double-recovery principle discussed in the relevant authorities is a principle that pertains to the assessment of damages in tort for personal injury. It therefore bears upon a court which is engaged in determining such an award, or considering whether to approve such a proposed award negotiated by the parties. It derives, ultimately, from the principle that damages in tort are (ordinarily) compensatory and not punitive….
[…]
93. Mr Paget described the Decision Letter as a public law decision taken to protect the public purse. He relied on the fact that the CICA funding and local authority funding both draw upon public money. But it cannot be right that the court should proceed on the basis that different public bodies, with different sources of public funding, governed by different funding regimes, should be treated as if they were one. Further, to take such an approach would be to ride roughshod over the principled distinction between the position of the tortfeasor (be they a public or private body – the authorities draw no distinction) and that of a local authority which is subject to statutory duties. It is simply not the function of the local authority when carrying out those duties to concern itself with such questions. The statute and the Regulations tell it how to perform the relevant calculations.
Drawing on Tinsley and Reeves, HHJ Auerbach noted that concerns about double recovery are to protect a tortfeasor, not a public body. HHJ Auerbach made some notable comments about the effects of undertakings made by COP-appointed deputies in PI proceedings:
84. Should the court nevertheless exercise its discretion to refuse relief in the particular circumstances of this case, in particular having regard to the fact of the 2012 CICA undertakings? Ms Elliot submitted that the undertaking given by RGT was personal to her and not binding on SGT (or, indeed CGT) relying in particular on the observations of the High Court in Peters at [77] (echoed by the Court of Appeal at [57]) about Mrs Miles recognising that any undertaking by her would be personal and could not bind her Deputy.
85. I interpose that at first blush it might be thought surprising that something done by a Deputy would not be treated as done in that capacity on behalf of the beneficiary, and so binding on a successor in that capacity. But I apprehend that the rationale in Peters was that what was being proposed in that case, was an undertaking to the court; and such undertakings are, in their nature, inherently commitments which are personal to the giver (and it was not suggested to me that an undertaking to the CICA fell into a different category).
The court quashed the local authority’s decisions of June 2024, refused an application for indemnity costs, and ordered that costs be paid on a standard basis. The parties had agreed a sum due to be remitted to the CGT in respect of past payments, and CGT had since been found to be eligible for CHC, making the issue of future payments for his care by the local authority otiose.
Comment
The primary finding that the Charging Regulations mean what they say and should not be read to mean the opposite is unsurprising in light of the Court of Appeal decision in Tinsley. The Charging Regulations (incorporating the Income Support Regulations) are clear in reference to capital disregards that the following are disregarded:
‘Where the funds of a trust are derived from a payment made in consequence of any personal injury to the claimant or the claimant’s partner, the value of the trust fund and the value of the right to receive any payment under that trust.”
There is no ambiguity in this provision for capital disregard of personal injury payments held in a trust fund, which applies on an indefinite basis.
The local authority placed significant weight on the fact that the Charging Regulations contain a separate provision for a capital disregard of ‘any payment made to the claimant or the claimant’s partner in consequence of any personal injury to the claimant or, as the case may be, the claimant’s partner,’ which excluded ‘any payment or any part of any payment that has been specifically identified by a court to deal with the cost of providing care.’ This disregard does not require that the funds be held in a personal injury trust to apply; however, this applies only for a period of 52 weeks, a fact which does not appear to have been brought to the court’s attention. The two provisions serve different purposes: one is an indefinite disregard of funds paid as a consequence of personal injury which are held in trust, and the other is a short-term disregard of any personal injury payment (which may not be held in trust), save as it provides specifically for paying for the cost of care.
I would also note that, in any event, if CGT was living in a supported living accommodation or in the community, the local authority would have been obligated to arrange CGT’s care even if it found he was a self-funder if it had been asked to do so under s.18(3) Care Act 2014 (though the judgment is somewhat unclear as to whether CGT was in a care home or supported living accommodation). Where CGT did not receive periodical payments, the court did not have occasion to grasp the nettle of the far more ambiguous provisions regarding income disregards for periodical payments, which are not so clear-cut as the capital disregards for personal injury awards.
For mental capacity practitioners, it is perhaps a shame that the court was not asked to consider the extent to which the undertaking given bound CGT himself. This issue was considered to some extent at [84]-[86]:
84. Should the court nevertheless exercise its discretion to refuse relief in the particular circumstances of this case, in particular having regard to the fact of the 2012 CICA undertakings? Ms Elliot submitted that the undertaking given by RGT was personal to her and not binding on SGT (or, indeed CGT) relying in particular on the observations of the High Court in Peters at [77] (echoed by the Court of Appeal at [57]) about Mrs Miles recognising that any undertaking by her would be personal and could not bind her Deputy.
85. I interpose that at first blush it might be thought surprising that something done by a Deputy would not be treated as done in that capacity on behalf of the beneficiary, and so binding on a successor in that capacity. But I apprehend that the rationale in Peters was that what was being proposed in that case, was an undertaking to the court; and such undertakings are, in their nature, inherently commitments which are personal to the giver (and it was not suggested to me that an undertaking to the CICA fell into a different category).
86. Mr Paget said he accepted that the 2012 CICA undertakings were not binding in contract or in any way in private law…
This is an issue which arises relatively commonly in cases where a person has an indemnity or reverse indemnity which was the subject of undertakings at the time of the settlement, but the identity of the deputy has now changed. It is perhaps a matter which is deserving of greater attention by the courts.
