Integrated care board wins appeal over mandatory order requiring arrangement of new health care plan for severely disabled boy

The Court of Appeal has allowed a cross-appeal brought by an Integrated Care Board (ICB) and dismissed an appeal and notice to affirm brought on behalf of a 12-year-old boy.

In A, R (On the Application Of) v North Central London Integrated Care Board [2025] EWCA Civ 485, Lady Justice Whipple, with whom Lord Justice Males and Lady Justice King agreed, quashed a High Court judge’s mandatory order requiring the ICB to draw up a fresh health care plan.

The appellant in the case was A, a child of 12. He suffers from a genetic disorder which renders him severely disabled, requiring 24-hour care.

The respondent was the North Central London Integrated Care Board, which is responsible for commissioning A's continuing care.

Outlining the background to the case, Whipple LJ said: “The Respondent originally contracted with a third-party supplier, Enviva, for A's care. But the Respondent became dissatisfied with Enviva's services and terminated Enviva's contract on 9 July 2024, engaging a new third-party supplier called Nursing Direct to provide care services to A.

“A's parents were dissatisfied with Nursing Direct. They wanted Enviva to carry on providing care for A. They declined the services of Nursing Direct and continued to engage Enviva to look after A at their own cost. The situation remained ongoing at the date of the hearing of this appeal, at which time A's care was still being provided by Enviva on a privately funded basis.”

A, who was represented for litigation purposes by his mother and litigation friend B, brought a judicial review against the respondent ICB, advancing three grounds of challenge:

1. The respondent was in breach of its obligation under s 42(3) of the Children and Families Act 2014 to ensure that there was a lawful health care plan in place in relation to him.
2. The respondent had acted “irrationally” in terminating Enviva's contract on 9 July 2024.
3. A's parents were entitled in restitution to repayment of the costs incurred by them after 10 July 2024.

By a judgment dated 23 October 2024, MacDonald J granted permission for judicial review on the first ground, and found in A's favour on that ground.

He held that the respondent had “breached its statutory duty” by failing to arrange for an updated health care plan for A. By way of remedy for that breach of statutory duty, he made a mandatory order requiring the ICB to arrange a health care plan for A by 27 November 2024.

MacDonald J also granted permission for judicial review on the second ground, but dismissed that ground of challenge, holding that the respondent had not acted irrationally in terminating Enviva's contract on 9 July 2024.

MacDonald J held that A's third ground was a claim to a remedy only and that claim failed because A had suffered no loss, rather it was his parents who had met Enviva's costs and it remained open to them to pursue a civil claim in the county court.

The appellant appealed the judge's conclusion on the third ground. In response to that appeal, the ICB cross-appealed the judge's finding on the first ground on the basis of fresh evidence which the ICB said would lead to a different outcome on ground 1.

In response to the respondent being granted permission to cross-appeal, the appellant served a "notice to affirm" - seeking to uphold the judge's conclusion that the ICB was in breach of duty in failing to arrange for a health care plan.

Whipple LJ said: “The logical order of the issues raised in this appeal is:

1. The respondent's cross-appeal on ground 1, seeking to challenge the judge's conclusions on ground 1, relating to the health care plan.
2. A's Notice to Affirm the judge's conclusions on ground 1, relating to the health care plan, for further or different reasons.
3. A's appeal on its claim for restitution, ground 3.”

Outlining the basis for the respondent’s cross-appeal on ground 1, Whipple LJ said the ICB sought permission to rely on a document which had not been before the judge, namely a draft health care plan prepared by Enviva, which was not signed by or behalf of A's parent or guardian, but was signed by Sherrie Beckingham for Enviva, signifying that she had reviewed the first draft on 20 June 2024 and had approved the second draft on 2 August 2024.

The Court of Appeal judge said she would refer to this as the "August 2024 draft health care plan".

She continued: “In light of the August 2024 draft health care plan, which came to the attention of the Respondent after MacDonald J had given judgment, the Respondent now challenges the judge's conclusion that the Respondent was in breach of its statutory duty on two grounds:

Ground 1: that in light of the August 2024 draft health care plan, (i) the judge erred in finding that the June 2023 health care plan was out of date because a new plan was progressing from June 2024 to August 2024; and/or (ii) should have refused permission; and/or (iii) should have held that the claim was academic.

Ground 2: the decision that the June 2023 health care plan was out of date was unfair due to the non-disclosure of the August 2024 draft health care plan by A.

“In light of these developments, the August 2024 draft health care plan has taken centre stage on this appeal.”

It was the ICB’s case that, if admitted, the August 2024 draft health care plan would have had an important influence on the case.

Whipple LJ noted: “In my judgment, the document is plainly relevant to the issues in the judicial review: most obviously it is relevant to the timeline of events which led to the Respondent's termination of the Enviva contract, noting that the absence of an updated health care plan was one of the reasons why the Respondent terminated its contract with Enviva; but it is also relevant to the efforts made by the Respondent to arrange for an updated health care plan from Enviva, showing that those efforts were in the end fruitful in producing this draft. For present purposes, I am satisfied that it would have an important influence on the case.

“The just outcome in my view is that the August 2024 health care plan should now be admitted as fresh evidence.”

In furtherance of their cross-appeal on ground 1, counsel for the ICB set out a number of arguments which they said would have been open to the respondent if it had been aware of the August 2024 draft health care plan at the time of the hearing before MacDonald J.

Whipple LJ summarised the arguments as follows:

a) that the respondent could have considered accepting the August 2024 healthcare plan as a new health care plan and subsequently argued that ground 1 was academic;

b) that the respondent could have argued that permission for judicial review should not be granted on ground 1 because the continuing care process was in fact producing a new document and delay alone (even if proved) is not unlawfulness and (for example) should be dealt with by the Ombudsman;

c) that the Court could have compared the June 2023 health care plan with the August 2024 draft health care plan to decide if there were material differences and to test breaches asserted by the clamant on ground 1 (ie whether the care plan was insufficient in the ways alleged);

d) that the respondent could have relied on the August 2024 draft health care plan in support of its argument that seeking an update of the health care plan from Enviva was sufficient to discharge its duty under s 42(3) CFA 2014 to arrange for the health care stipulated in section G of A's EHCP;

e) that even if the Court found that the respondent was in breach of its statutory duty, the respondent could have argued that no mandatory order was required on the basis that a new plan was in train, and argued against the costs ordered on the basis that no effective remedy had been secured.

Considering the merits of the cross appeal on grounds 1 and 2, Whipple LJ said: “I reject the Respondent's ground 2 which is based on an assertion that the judge's decision on ground 1 was unfair because of the failure by A's legal team to disclose the August 2024 draft health care plan.

“The circumstances of non-disclosure are regrettable but do not lead me to conclude that this appeal should be allowed as of right, on grounds of unfairness. Rather, the focus of the cross-appeal must be on the impact of the fresh evidence on the Respondent's substantive case on breach of statutory duty, this being the Respondent's cross-appeal, ground 1.”

She added: “As to (e), I think the Respondent would have had a powerful case for arguing that despite the established breach of duty, no remedy should be granted.

“In my view, the August 2024 draft health care plan was relevant to the judge's exercise of discretion on the issue of remedy. If it had been known about, the focus for submissions would have been the obvious and practical matter of what more could realistically be expected of the Respondent, given that there was already in existence an advanced draft updated health care plan, and given that by the time of the hearing the Respondent was no longer commissioning A's care and was not, therefore, in a position to ensure that the draft was finalised. The existence of the August 2024 draft health care plan was a material factor unknown to the judge. That means his decision cannot stand. The Court must consider the question of remedy afresh, in light of the facts as they are now known.

“I would therefore allow the cross-appeal to the extent of quashing the judge's mandatory order and substituting no order by way of remedy for the Respondent's breach of duty.”

The appellant responded to the ICB's cross-appeal with a Notice to Affirm – seeking to revive arguments about the adequacy of the health care plan even though the judge, MacDonald J, did not consider it necessary to determine them.

Whipple LJ said: “I have accepted, as the judge did, that the Respondent was in breach of statutory duty in failing to arrange for an up-to-date health care plan which reflected the November 2023 EHC Plan. […] In light of that finding, it is not necessary to consider the adequacy of the contents of the June 2023 health care plan.

“Like the judge, I conclude that it is not necessary to address the arguments raised in the Notice to Affirm. The judge found, and I agree, that there was no up to date health care plan in place for A at the material time. That remains the case, even now that the August 2024 draft health care plan has emerged. Questions about the adequacy of either or both of these versions of A's health care plan simply do not arise. I would dismiss the Notice to Affirm.”

Turning to the appeal on the restitution point, Whipple LJ noted that in his judgment, MacDonald J summarised the appellant's argument in the following way:

"The claimant asserted that the Defendant has been enriched by not paying for the healthcare package since on or around 10 July 2024, that that enrichment was at the expense of the Claimant's parents by reason of their having to fund A's care and that the enrichment was unjust because the Claimant's parents had no choice but to ensure that Enviva and [Practical Staffing] continue to deliver the Claimant's healthcare package in circumstances where the Defendant had failed to take the basic steps required to safely transition to a new provider and there was risk of serious harm or death if nurses or carers with poor understanding of the Claimant's needs were required to deliver his sensitive and complex healthcare package."

MacDonald J concluded that it was not necessary to decide the claim for restitution, which was a complex issue, in light of the more "prosaic point" that the appellant was not paying for his continuing health care provision, rather his parents were, and A had not suffered any pecuniary loss which could be the subject of restitution.

Counsel for the appellant submitted that the judge was wrong to conclude that the appellant lacked standing to bring the claim in restitution; noting that he was the beneficiary of the care and support which his parents had paid for and that the restitution claim arises "from the public law errors in the [Respondent's] decision making in respect of his care and support package".

Whipple LJ said: “In their skeleton argument, supported by oral submissions, [Counsel for A] submit that A has met the criteria for a claim in unjust enrichment. They rely on Barton v Gwyn-Jones [2023] at para 77 per Lady Rose JSC (that passage itself drawing on earlier authority):

"When faced with a claim for unjust enrichment, a court must first ask itself four questions: (1) has the defendant been enriched? (2) was the enrichment at the claimant's expense? (3) was the enrichment unjust? (4) are there any defences available to the defendant?

“They suggest that the issue in this appeal turns on question (2), and that in answer to that question, the Respondent has been enriched at the claimant's expense. They rely on Investment Trust Companies v HMRC [2017] at para 41 for the proposition that the four questions are no more than broad headings or signposts towards areas of inquiry, and the words "at the expense of" in question (2) should not be construed like a statute but can have a broader reach. They then turn to R (CP) v North East Lincolnshire Council [2019] as an example of this Court ordering repayment by a public authority to a father who had incurred costs on behalf of his disabled daughter. They further rely on cases in the personal injury field where claimants have recovered damages to compensate for care provided to them gratuitously (for an example, see Hunt v Severs [1994])”

Discussing the ground, Whipple LJ said: “In my judgment, the gratuitous care cases (such as Hunt v Severs) are not relevant. Damages awarded in those cases were to compensate claimants who had a moral obligation to pay for care given by family and friends out of love and without charge. That situation is not analogous to this case where A's parents have incurred costs in funding A's care by a third party.

“The high point of A's argument is CP. In that case, the first instance judge found the local authority defendant in breach of statutory duty but held that the claimant was not entitled to restitution of costs incurred as a result of that breach. The Court (per Haddon-Cave LJ, with whom the other members of the Court agreed) allowed the appeal holding that the costs were recoverable. I am not, however, persuaded that CP assists [counsel for A].”

She continued: “First, it is far from clear that the Court of Appeal analysed the right of recovery as one which arose in restitution – the words "restitution" and "unjust enrichment" do not appear in the part of Haddon-Cave LJ's judgment where he gives his reasons. Secondly, and in any event, the case is distinguishable on its facts, and obviously so: CP's claim was for the historic costs of attendance at a day care facility, which costs had in fact been met by CP's parents; Haddon-Cave LJ concluded that those costs should have been included in the claimant's personal budget for past years, and that non-inclusion was a breach of statutory duty. […] It was against that background that the local authority had to compensate CP for those costs, which were directly consequential on the breach.

“This case is very different, because the only breach of duty which has been established is the failure to arrange for an updated health care plan. Yet the costs which have been incurred by A's parents are not consequential on or even closely related to that breach (despite Mr Wise's submissions to the contrary).”

Whipple LJ added: “A presents his case on the appeal by reference to the four questions in Barton v Gwyn-Jones. Although A's focus is on question (2), in my judgment it is question (3) which most obviously presents an obstacle to A's appeal. In light of the dismissal of ground 2, there is no basis to conclude that the Respondent has been enriched in a manner that would be unjust. It is now established that the Respondent lawfully terminated Enviva's contract on 9 July 2024. A's parents chose to retain Enviva after that date, and to pay Enviva themselves. There is no injustice in the Respondent not having to meet Enviva's costs after that date.”

Whipple LJ dismissed the appellant’s appeal on the restitution point.

Concluding the case, she said: “I would allow the cross-appeal to the extent of quashing the relief granted by the judge in the form of the mandatory order. I would dismiss A's appeal and Notice to Affirm.”

Lord Justice Males agreed that the Respondent's cross-appeal should be allowed, and the mandatory order for a new health care plan should be quashed, for the reasons given by Lady Justice Whipple.

He said: “I would dismiss A's appeal on the basis that any enrichment of the Respondent was not unjust. […] I would leave open the question whether, if all other elements of a restitutionary claim had been present, it would have been a bar to recovery that the costs in question were paid by A's parents rather than by A himself. In my view it is unnecessary to decide that question and preferable to leave it to be decided in a case where it will be decisive.”

Lady Justice King agreed.

Lottie Winson