7th May 2026 | Articles & Newsletters
R (CGT) v West Sussex County Council concerns a judicial review of West Sussex County Council’s decision to (1) refuse to provide care to the Claimant (CGT) under the Care Act 2014 on the basis that the care should be funded out of damages received for that purpose previously and (2) refuse to reimburse CGT for funding provided out of his discretionary trust.
The Administrative Court’s decision closes the door on a line of argument that local authorities have continued to advance despite the statutory framework and increasingly clear line of case law authority. It addresses a central question at the intersection of personal injury and public law obligations: Can a local authority refuse to meet needs for care and support under the Care Act 20141 because a claimant has already received compensatory damages partly in respect of those needs? The answer is now unequivocal. It cannot.
In practical terms, local authorities can no longer rely on “double recovery” arguments to refuse Care Act funding where assets are held in a personal injury trust.
The Claimant (CGT), born in 1994, suffered a catastrophic brain injury in infancy resulting in life-long difficulties and ongoing need for day-to-day care and support. His mother, RGT, was appointed as his property and financial affairs (“PFA”) Deputy by the Court of Protection (“COP”) in 2011. In November 2012 a substantial Criminal Injuries Compensation Authority (“CICA”) award, including a sum of more than £2.6 million in respect of future care costs, was placed into a discretionary trust (“the PI trust”).
That element of the award was dependent on an undertaking being given by the Official Solicitor and RGT. This included provisions that no application for public funding of CGT’s care under section 21 of the National Assistance Act 1948 could be made unless it was in CGT’s best interests because the funds provided by the CICA award for future care no longer provided for his reasonable care needs or because the restriction was contrary to his best interests for some other reason. Such an undertaking is often referred to as a “Peters promise” or “Peters style undertaking” after the case of Peters v East Midlands Strategic Health Authority [2009] EWCA Civ 145.
In 2013 RGT died and the COP subsequently appointed the Claimant’s father, SGT, as the PFA Deputy. SGT, acting on advice, requested the Defendant to carry out a care needs assessment for CGT and to make contributions towards his residential care placement2. The Defendant challenged this request with the Office of the Public Guardian (“OPG”) and by applying to the COP for the terms of SGT’s deputyship to be varied in line with the original undertaking. In the meantime the Defendant paid, on a without prejudice basis, towards CGT’s assessed care needs from 16 June 2020. The Defendant’s challenge with the OPG and application with the COP were subsequently unsuccessful.
The Defendant consequently wrote to to SGT on 7 June 2024 informing him that they would cease to pay from 5 July 2024 on the basis that CGT’s needs should be met from the PI trust as was envisaged when the CICA award was made, the effect of the Defendant paying would be double recovery (particularly since both sources of funding were from the public purse) and that the Court had emphasised in Tinsley3 that they would prevent double recovery. These proceedings followed to challenge the legality of that decision.
The relevant statutory obligations are provided by the Care Act 2014 and the Care and Support (Charging and Assessment of Resources) Regulations 2014. Under that scheme, local authorities must meet eligible needs where capital falls below the relevant threshold4. Crucially, Schedule 2 paragraph 15 of the 2014 Regulations incorporates paragraph 12 of Schedule 10 to the Income Support (General) Regulations 1987, requiring “where the funds of a trust are derived from a payment made in consequence of any personal injury to the claimant the value of the trust fund” must be disregarded when assessing the applicant’s capital.
The main ground of the application was that the Defendant had acted unlawfully because its decision was contrary to the express terms of para.15 of sch.2 of the Care and Support (Charging and Assessment of Resources) Regulations 2014. The Defendant’s position was that on the correct interpretation (based on a purposive reading or through the prism of public policy) of para.15 of sch.2 the requirement to disregard certain funds did not include those identified as relating to the future care costs5. Alternatively, the Defendant relied on a positive duty on the court to prevent double recovery from occurring while asserting that it would be unconscionable for the Defendant to have to pay if the decision was quashed6.
The Court rejected the local authority’s attempt to read in a limitation to the statutory disregard. The Court found that the language of reg.12 of the Income Support Regulations 1987 was “clear unambiguous and unqualified”7. The Court in any case rejected the Defendant’s submission that for the provision to be unqualified in this way, whilst other provisions in the same Regulations were qualified, was illogical and due to an oversight on the part of the legislator8.
The Defendant advanced a further argument on the basis that SGT was seeking to resile from a positive assurance that had been given by his predecessor was, although not positive deception, analogous to Secretary of State for Communities and Local Government v Welwyn Hatfield BC9. This was a case where Lord Mance considered an argument that, as a general principle of purposive statutory construction, a provision should not be construed as enabling a person to benefit from his own wrong, requiring him to do an unlawful act to claim a benefit, or extending a general grant to include something that was unlawful or immoral. The Court noted that a similar argument was rejected by Longmore LJ in Tinsley10 on the basis that there was nothing approaching the sort of deceit at play in Welwyn Hatfield and that it was not immoral to claim a benefit that Parliament had made clear the claimant was entitled to.
The Court effectively followed Tinsley in this regard11. The Court held that there was no suggestion of deceit or that the undertaking was not given in good faith. It also found that the basis and practice of giving such undertakings (Peters promises) had since 2012 been recognised as inappropriate and ineffective12.
The other limb of the Defendant’s submissions was that relief should be refused, or the statutory scheme interpreted, so as to prevent double recovery. The Court of Appeal has previously established that where a claimant wishes to opt for self-funding their care by way of damages in preference to reliance on statutory obligations they are entitled to do so as a matter of right13. In Tinsley, Longmore LJ considered an argument that the relevant statutory provision should be interpreted so as to avoid the risk of double recovery (in the circumstance where damages had been awarded and were followed by a request for statutory provision of care). He considered that while the courts seek to avoid double recovery by the claimant at the time it assesses damages it does not follow that a claimant who is awarded damages for future care is precluded from making an application to the local authority14.
Drawing on the authorities cited above and others15 the court made clear that double recovery is a principle of damages law16. It applies at the stage of assessing compensation against a tortfeasor. It does not provide a free-standing duty or power to the Court to intervene within the statutory obligations of a local authority to prevent double recovery. Therefore, it could not change the approach taken to the interpretation of reg.12 of the Income Support Regulations 1987 or, as set out below, properly provide a basis for the Court to refuse to provide relief to the Claimant where the Defendant had been found to have acted unlawfully.
The Court also considered the Defendant’s argument that, if it found the Defendant to have acted unlawfully, it ought to refuse to grant relief17 on the bases that, (1) as submitted in relation to the interpretative exercise, the Court should intervene to prevent double recovery, (2) in view of the original undertaking it would be unconscionable to grant relief to the Claimant, (3) the Claimant would not be prejudiced by a refusal of relief since money had already been awarded for future care, and (3) the Administrative Court refusing relief was an appropriate mechanism for controlling the risk of double recovery where both sources of funding emanate from public funds.
The Court rejected the argument regarding double recovery, as set out above, held that given that undertakings are always personal and that this was a known floor in using them as a control mechanism that there was nothing unconscionable about granting relief18. The Court also did not accept that any relief was a windfall to CGT as the refusal to pay by the Defendant had caused the payment out of the PI fund that would otherwise not have been made19.
One particular feature of the double recovery argument was the characterisation of the June 2024 decision as a decision taken to protect the public purse on the basis that the CICA funding and local authority were both drawn from public money which would effectively be paying twice. The Court rejected this as CICA and local authority funding are two different regimes and also on the basis that treating the two sources as ultimately the same would dissolve the distinction between the tortfeasor and the local authority subject to statutory duties20.
The court quashed the decision, declared it unlawful, and (granting relief) ordered repayment of sums drawn from the trust following the unlawful refusal, subject to lawful contributions.
The ill fated Clinical Negligence Bill, tabled by Catherine McKinnell MP, shows the practical difficulties in Parliament reconsidering the above policy issues through legislation. The Bill, which did not make it past 1st reading before the end of the Parliamentary session, was mainly aimed at legal costs within clinical negligence claims. However, Mckinnell also added that:
“There is also a long-standing anomaly in how compensation is calculated, dictated by a law predating the NHS that prevents consideration that the NHS may be the best place for claimants to access ongoing care. As it stands, it can lead to the state effectively being double-charged. To ensure that every pound is focused on improving care and preventing harm, we must finally amend and update this law—this 1948 relic—to reflect modern-day reality.”
She was of course referring to section 2(4) of the Law Reform (Personal Injuries) Act 1948 that provides that:
“… in an action for damages for personal injuries … there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the National Health Service.”In the context of clinical negligence cases it is suggested that this provision means the NHS pays twice once as the tortfeaser and again when they provide the treatment (if treatment is in fact provided on the NHS). Despite various government instituted committees21 recommending that the provision be repealed, doing so would offend the distinction protected by the Court in CGT between the tortfeasor (even where this is a public authority) and a public authority providing non-means tested care or healthcare. It also ignores the modern day strain already placed upon the NHS that would be exacerbated by the repeal of the provision22.
The position is now clear. Funds received into trust consequent to personal injury are to be disregarded in full when local authorities assess a claimant’s capital level under the Care Cat 2014. Further that local authorities cannot invoke double recovery, fairness, or fiscal considerations to avoid their obligations under the Act. Though the Court has indicated it would be for Parliament to change the position, as shown by the experience of the Clinical Negligence Bill, this is unlikely any time soon.
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