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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> West Sussex County Council v Amberley (UK) Ltd & Anor [2010] EWHC 651 (QB) (31 March 2010) URL: http://www.bailii.org/ew/cases/EWHC/QB/2010/651.html Cite as: [2010] EWHC 651 (QB) |
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QUEEN'S BENCH DIVISION
B e f o r e :
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West Sussex County Council |
Claimant |
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- and - |
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Amberley (UK) Limited Ronald H Green |
Defendants |
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Mr Peter Susman QC (instructed by Davis & Co) for the Defendants
Hearing dates: 16th, 17th & 18th February 2010
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Crown Copyright ©
Mr Justice Field:
Introduction
WSCC's claim for overpayments in respect of Mr JF
WSCC's claim against Amberley Ltd and Mr Green under s. 45 (1) of the National Assistance Act 1948 in respect of residents BS and RW
If, whether fraudulently or otherwise, any person misrepresents or fails to disclose any material fact, and in consequence of the misrepresentation or failure —
(a) a local authority incur any expenditure under Part III of this Act, or
(b) any sum recoverable under this Act by a local authority is not recovered,
the authority shall be entitled to recover the amount thereof from the said person.
"…. I consider that a 'failure' to disclose necessarily imports the concept of some breach of obligation, moral or legal – ie the non-disclosure must have occurred in circumstances in which, at lowest, disclosure by the person in question was reasonably to be expected…."
The Counterclaim
(a) section 26A of the National Assistance Act 1948 (c. 29) (which prevents local authorities in England or Wales providing residential accommodation for persons who were in such accommodation on 31st March 1993), and
(b) section 86A of the Social Work (Scotland) Act 1968 (c. 49) (which makes corresponding provision for Scotland),
shall cease to have effect on the appointed day.
(2) For the purposes of this section a "qualifying person" is—
(a) (in relation to any time before the appointed day) a person to whom section 26A(1) or section 86A(1) applies; or
(b) (in relation to any later time) a person to whom either of those sections applied immediately before that day.
(3) Where a qualifying person is immediately before the appointed day ordinarily resident in relevant premises in the area of a local authority ("the responsible authority"), that authority shall secure that—
(a) as from that day, or
(b) as soon thereafter as is reasonably practicable,
the person is provided with such community care services with respect to his accommodation as appear to the authority to be appropriate having regard to his needs as assessed under section 47(1)(a) of the 1990 Act (assessment of needs for community care services in England or Wales) or section 12A(1)(a) of the 1968 Act (corresponding provision for Scotland).
(4) Each local authority shall accordingly—
(a) use their best endeavours to identify every person ordinarily resident in relevant premises in their area who is a qualifying person; and
(b) carry out such a programme of assessments under section 47(1)(a) or 12A(1)(a) in respect of persons so identified as appears to the authority to be required for the purpose of enabling them to discharge their duty under subsection (3) in relation to such persons.
(5) Where a person—
(a) is a qualifying person immediately before the appointed day, and
(b) is provided by the responsible authority with any community care services with respect to his accommodation in accordance with subsection (3),
his existing arrangements shall, by virtue of this subsection, terminate on the date as from which he is provided with those services.
(6) Where any such person is not provided with any such services as from the appointed day, any liability of his to make any payment under his existing arrangements in respect of any period (or part of a period) falling within the period beginning with the appointed day and ending with—
(a) the date as from which he is provided with any such services, or
(b) the date on which he notifies (or is in accordance with regulations to be treated as notifying) the responsible authority that he does not wish to be provided with any such services,
shall instead be a liability of the responsible authority.
Fees
The level of fees is subject to review as costs increase. No fee level is stated here as standard, due to the reviews.
The level of fees applicable at the time of your admission is £…… per week.
Payment of the fee covers full board and lodging.
Residents/patients admitted before 1st April, 1993, and who are no longer able to finance their care, will be the responsibility of the Department of Social Security.
The admission of a client to a Home, in circumstances other than emergencies, requires the authorisation of the Council which is given by completion of Part D Schedule D (i)(a). The Council will not accept responsibility for fees of residents who have not been assessed and placed by the Council.
The limitation defence to WSCC's claim for overpayments in respect of JF.
32.-(l) Subject to subsection (3) below, where in the case of any action for which a period of limitation is prescribed by this Act, either-
(a) the action is based upon the fraud of the defendant;
or (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant;
or (c) the action is for relief from the consequences of a mistake;
the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.
References in this subsection to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent.
(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.
Conclusions
(1) WSCC's claim for overpayments in respect of Mr JF succeeds, but not in respect of overpayments made before 28th August 2002.
(2) WSCC's claim against Amberley Ltd and Mr Green under s. 45 (1) of the National Assistance Act 1948 is dismissed.
(3) The counterclaim is dismissed.
Note 1 In the case of RW, the increase in benefits occurred on his reaching 60 years of age, at which point he started to receive Pension Credit. [Back] Note 2 26 (2) “Any arrangements made by virtue of this section shall provide for the making by the local authority to the other party thereto of payments in respect of the accommodation provided at such rates as may be determined by or under the arrangements and subject to subsection (3A) below the local authority shall recover from each person for whom accommodation is provided under the arrangements the amount of the refund which he is liable to make in accordance with t he following provisions of this section.” [Back]