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You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> Nottinghamshire County Council v Belton, The Estate of & Anor [2017] EW Misc 26 (CC) (19 October 2017)
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Cite as: [2017] EW Misc 26 (CC)

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Case No:B89YM080

IN THE HIGH COURT COURT

NOTTINGHAM DISTRICT REGISTRY

 


Date: 19/10/2017

 

Before :

 

HIS HONOUR JUDGE GODSMARK QC

Designated Civil Judge sitting as a Judge of the High Court

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Between :

 


Nottinghamshire County Council

Claimant


- and -



(1) The Estate of Mr Wilfred Belton

(2) Ian Belton

 

Defendants

 

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Mr J Auburn (instructed by Nottingham City Council ) for the Respondent

Mr I Belton in person for the Appellants

 

Hearing dates: 22 nd September 2017.

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JUDGMENT

 


His Honour Judge Godsmark QC :

1.       This is an appeal from a decision of Mr Recorder Potts in a fast track trial heard on 23 rd August 2016, with judgment delivered on 19 th October 2016. The trial concerned a claim by the local authority to recover the costs of providing residential care for the final years of Mr Wilfred Belton. Those costs had been paid by Nottinghamshire County Council (NCC) who sought to recover them from the estate of Wilfred Belton, alternatively from his son Ian Belton to whom the deceased's assets had been transferred.

2.       Wilfred Belton had gone into hospital on 2 nd February 2010. He was discharged to the Sutton Manor Care Home on 22 nd February 2010 and remained there until his death on 13 th January 2014. His care costs were paid by NCC who are obliged to recover a contribution towards those costs from Wilfred Belton according to his means. They calculated a sum due of £37,184.22. There was no issue taken with that calculation.

3.       NCC sought to recover these costs from Wilfred Belton's estate. During the lifetime of Wilfred Belton there had been regular transfers of his assets to his son Ian Belton and so NCC alternatively sought payment of those transferred sums by way of a restitutionary claim. The Estate and Mr Ian Belton (who also represented the Estate) resisted the claim of NCC on a number of grounds but primarily on the basis that the care costs should have been paid by the NHS.

4.       At the trial before Mr Recorder Potts, NCC was represented by counsel Mr Auburn. Mr Ian Belton represented both the Estate and himself. Recorder Potts, in a reserved judgment, found for NCC and gave judgment against both the estate and Ian Belton in respect of the care costs claimed. He also found Mr Ian Belton personally liable in respect of the same sum on the restitutionary ground of unjust enrichment. For the purposes of this judgment I shall refer to Ian Belton simply as "Mr Belton" and to his father as Wilfred Belton.

5.       Mr Belton sought permission to appeal the Recorder's order. On paper I refused permission to appeal on all grounds save one. I granted permission to appeal on what was described as the jurisdiction / limitation point. This appeal has been concerned solely with that point.

6.       Wilfred Belton's care costs arose from 22 nd February 2010 until 13 th January 2014 (although for reasons that do not matter NCC only sought to recover costs from 29 th December 2010). These were costs incurred under s.22 National Assistance Act 1948. The claim was issued on 17 th September 2015. However by then s.22 National Assistance Act 1948 had been repealed and replaced by parallel provisions of the Care Act 2014 which came into force on 1 st April 2015.

7.       In paragraph 15 of the Particulars of Claim, NCC identified its right to recover contributions towards s.21 and s.22 National Assistance Act 1948 care costs pursuant to s.56 of the same Act. In paragraph 16 the replacement of those provisions by s.69 Care Act 2014 was acknowledged. In the Defence there was no limitation pleading.

8.       The jurisdiction / limitation point did not arise until Mr Belton made his closing submissions. He started off by saying that the Care Act 2014 states that the local authority could only claim for the preceding three years. That point, understandably, took counsel Mr Auburn by surprise. He was able quickly to get access to s.69 Care Act 2014 and the transitional provisions of The Care Act 2014 (Transitional Provision) Order 2015 and particularly Article 3(4) which referred back to s.56 National Assistance Act 1948. Mr Auburn made it clear to the Recorder that NCC was not claiming under the Care Act 2014 as this debt had arisen before that Act came into force. As the transcript reveals Mr Auburn told the Recorder:
"..we are not claiming under section 69 (of the Care Act 2014). We are claiming under section 56 of the National Assistance Act 1948.........We are going under section 56, not section 69."

9.       Mr Belton took the point that s.56 refers to recovery summarily which was, he said, a process in the Magistrates' Court and not the County Court. He thus challenged jurisdiction. NCC maintained that s.56 permitted recovery in the Magistrates Court (for which there was a three year time limit) but did not mandate it. In respect of s.56 Mr Auburn maintained there to be a six year limitation period where proceedings were commenced in the County Court. In his judgment, the Recorder did not deal with this point having appeared to accept Mr Auburn's submissions during argument.

10.   When this jurisdiction / limitation point is extracted and considered with the benefit of far more time than was available at the end of the hearing, the position is not so straightforward. During the appeal hearing Mr Auburn accepted promptly that he wrongly thought before the Recorder that the Care Act 2014 had no application to this case when in fact, on reflection, it does.

11.   At this point I need to start to set out the statutory provisions in question.

s.56 National Assistance Act 1948 ("NAA")

(1) Without prejudice to any other method of recovery, any sum due under this Act.. to a local authority (other than a sum due under an order made under section 43 of this Act) shall be recoverable summarily as a civil debt.

(2) Notwithstanding anything in any Act, proceedings for the recovery of any sum in the manner provided by the last foregoing subsection may be brought at any time within three years after the sum became due.


12.   It is also instructive to consider s.17 of the Health and Social Services and Social Security Adjudications Act 1983 (HASSASSA) which deals with recovery of sums due in respect of provision of services to a person in their own home.

s.17 Health and Social Services and Social Security Adjudications Act 1983

(4) Any charge under this section may, without prejudice to any other method of recovery, be recovered summarily as a civil debt.

Like s.56 NAA this provision contemplates recovery summarily as a civil debt. However s.17 contains no provision similar to s.56(2) NAA with a three year time limit.

13.   By s. 58 Magistrates' Courts Act 1980 a magistrates' court has power to make an order on complaint for the payment of any money recoverable summarily as a civil debt.

14.   By s.127 Magistrates' Courts Act 1980 the time limit for making a complaint to a magistrates' court is six months from the time the complaint arose unless otherwise expressly provided by any enactment. This is subject to provisions which are not relevant here.

15.   Thus it appears that s.56(2) NAA provides for a three year time limit for (at least) summary recovery of care home costs (that three year period being expressly enacted). However s.17 HASSASSA is subject to a six month time limit for summary recovery of costs for providing care at home.

16.   We then turn to the Care Act 2014 which came into force on 1 st April 2015. Part 1 of the Act deals with provision of care services either in a care home or a person's own home and charges which can be made for provision of such services.

s.69 Care Act 2014 (which came into force on 1 st April 2015)

(1) Any sum due to a local authority under this Part is recoverable by the authority as a debt due to it.

(3) A sum is recoverable under this section -
(a) in a case in which the sum becomes due to the local authority on or after
the commencement of this section, within six years of the date the sum
becomes due;
(b) in any other case, within three years of the date on which it became due.

17.   However, on behalf of NCC, Mr Auburn then took the court to the transitional provisions and in particular Article 3.

The Care Act 2014 (Transitional Provision) Order 2015 - "the Transitional Provision"

Art 3.- Transitional provision in relation to enforcement of debts

(1) Subject to paragraphs (3) and (4), a sum or charge to which paragraph (2) applies is recoverable under  section 69 of the Act (recovery of charges, interest etc.) as if it were a sum due to the local authority in question under  Part 1 of the Act.

(2) This paragraph applies to any sum or charge due under  Part 3 of the 1948 Act (local authority services) or  section 17 of the 1983 Act (charges for local authorities in England and Wales) to a local authority in England in respect of support or services (including a sum or charge which becomes due on or after the date on which this Order comes into force).

(3) Paragraph (1) does not apply to a sum or charge in respect of which proceedings for recovery have begun prior to this Order coming into force.

(4) A sum or charge is recoverable under paragraph (1) within the period within which it would, but for this article, have been recoverable under  section 56 of the 1948 Act (legal proceedings) or, as the case may be,  section 17 of the 1983 Act.

(5) Notwithstanding  article 3(3) of the 2015 Order, neither  section 56(1) of the 1948 Act nor  section 17(4) of the 1983 Act apply in relation to a sum or charge which is recoverable under paragraph (1).

18.   Paragraph 2 of Article 3 of the Transition Provision above applies to sums due under Part 3 NAA which includes the sums claimed in respect of Wilfred Belton. Under Article 3(1) therefore such a sum is recoverable under s.69 Care Act 2014. It is here that there was the recognition that submissions made to the Recorder as to sums becoming due before the Care Act 2014 came into force were wrong. The fact that the sums due pre-dated the Care Act 2014 did not prevent them becoming due under that Act given the terms of paragraphs 1 and 2 of Article 3.

19.   However paragraph 1 of Article 3 is subject to paragraphs 3 and 4. Paragraph 3 deals with proceedings which have already begun before 1 st April 2015 and takes them outside paragraph 1: it is irrelevant here.
Paragraph 4 is a limitation clause. A sum is recoverable under paragraph 1 within the period in which it would have been, but for Article 3, recoverable under s.56 NAA or s.17 HASSASSA

The Jurisdiction Point

20.   Mr Belton's submission to the Recorder was that s.56 NAA meant that only the Magistrates' Court had jurisdiction in claims like this. He based that on s.56(1) which says that " any sum due under this Act....shall be recoverable as a summary debt". The summary recovery of debt is a Magistrates' Court procedure (see s.58 Magistrates' Courts Act 1980). It was Mr Belton's case that s.56 NAA prescribed the only route by which sums claimed for provision of care could be recovered.

21.   There are two difficulties with this proposition. Firstly, the opening words of s.56(1) are " Without prejudice to any other method of recovery.." This is not consistent with the section prescribing only one route for recovery of the sums claimed.

22.   Secondly, s.56(1) provides that the sum due " shall be recoverable". It does not say " shall be recovered". This is the wording of a permissive rather than prescriptive
provision. In that respect it is instructive to consider alongside s.56 NAA, s.17 HASSASSA which deals with recovery of sums due in respect of services supplied at home and which is also referred to in the Transitional Provision. Under s.17(4) Health and Social Services and Social Security Adjudications Act 1983 a charge due " may,.... be recovered summarily as a civil debt". Again this is "may be" and not "must be". It is a permissive provision and I cannot conceive that the legislature would have intended summary recovery to be mandatory in respect of charges for care home services but optional in respect of charges for care at a person's own home.

23.   In my judgment s.56 NAA is a permissive provision which enables recovery proceedings to be brought summarily. It does not require them to be brought summarily. Accordingly the County Court does have jurisdiction in this debt dispute as it does generally. The Jurisdiction Point argued by Mr Belton thus fails.

The Limitation Point

24.   There are different methods of recovery expressly contemplated by s.56(1) NAA. There is summary recovery as a civil debt and "any other method". S.56(2) NAA applies a three year limitation period "for the recovery of any sum in the manner provided by" s.56(1). There are two possible interpretations of this: that "the manner provided for by" s.56(1):-
a) refers only to summary recovery; or
b) refers to any method of recovery.

25.   In my judgment "the manner provided for by" s.56(1) refers specifically to summary recovery. That is the only manner of recovery specifically referred to in s.56(1) and is without prejudice to other methods. This means that recovery of costs of provision of care services would be subject to the following limitation periods:-
a) County Court recovery of residential care home costs - six years;
b) County Court recovery of (s.17) costs of care at home - six years;
c) Summary recovery of residential care home costs - three years;
d) Summary recovery of (s.17) costs of care at home - six months.

26.   The above results in a logical consistency in County Court recovery proceedings. The alternative construction would result in a puzzling difference between County Court proceedings to recover residential care costs and costs of care at home as follows:-
a) County Court recovery of residential care home costs - three years;
b) County Court recovery of (s.17) costs of care at home - six years;
c) Summary recovery of residential care home costs - three years;
d) Summary recovery of (s.17) costs of care at home - six months.

27.   The charges incurred in relation to Wilfred Belton arose under the NAA and not under the Care Act 2014. On the face of it therefore s.69 Care Act 2014 is irrelevant since it deals with sums due under Part 1 of the 2014 Act [see s.69(1)] and the sums in this case were not. If I am right then for so long as the recovery is under NAA the limitation for County Court proceedings is six years.

28.   What links the sums due in this case to the Care Act 2014 is Article 3 of the Transitional Provision. Article 3(2) identifies sums due under Part 3 NAA such as the charge in this case. Article 3(1) then provides that those sums are recoverable as if s.69 Care Act 2014 applied to them.

29.   If the sums claimed in this case are recoverable under s.69 Care Act 2014, as it is now conceded they are, then the limitation provisions of s.69(3) Care Act 2014 are brought into play. The sums claimed in respect of Wilfred Belton did not fall due on or after the commencement of the section (1 st April 2015) and thus s.69(3)(a) does not apply. That leaves s.69(3)(b) which applies a three year limitation period "in any other case".

30.   For NCC, Mr Auburn relies upon Article 3(4) which provides that pre-Care Act 2104 charges (i.e as in Article 3(2)) are recoverable within the period for which they would, but for Article 3, have been recoverable under s.56 NAA. Article 3 made the NAA charges claimed in this case recoverable as if s.69 Care Act 2014 applied to them. S.69(3) places time limits on recovery. What Article 3(3) does is preserve the time limits which applied to such NAA charges before the Care Act 2014.

31.   Thus the effect of Article 3 of the Transitional Provision is to make NAA charges (like those in this case) recoverable under s.69 Care Act 2014 but subject to the s.56 NAA time limits. I have already concluded that the time limit under s.56 NAA for County Court proceedings is six years.

32.   Mr Belton points also to Article 3(5):
"Notwithstanding  article 3(3) of the 2015 Order, neither  section 56(1) of the 1948 Act nor  section 17(4) of the 1983 Act apply in relation to a sum or charge which is recoverable under paragraph (1)."
However on my reading that provision simply says that neither s.56(1) NAA (nor s.17(4) HASSASSA) can be used to recover sums due under the Care Act 2014. In other words the old summary civil debt procedure can no longer be used to recover a NAA charge now recoverable under s.69 Care Act 2014.

33.   My conclusion therefore is that the sums recoverable in respect of Wilfred Belton's care were initially recoverable under the NAA. The effect of the Transition Provision is to make such sums recoverable under s.69 Care Act 2014 but subject to the NAA time limit. That time limit is six years for County Court proceedings.

34.   That conclusion maintains consistency with the limitation period prescribed by s.69(3)(a) at six years but does leave something of a question mark over s.69(3)(b). There is a six year limitation period in respect of sums falling due under the Care Act 2014 on or after 1 st April 2015. A sum recoverable under s.69 "in any other case" has a limitation period of 3 years. If the present case is "any other case" then that might suggest a three year limitation period for this case. Alternatively one might ponder what s.69(3)(b) was for at all.

35.   The three year period in s.69(3)(b) refers to sums due under s.69 Care Act 2014. It does not apply to sums due under NAA or HASSASSA unless those sums are specifically brought within the Care Act 2014. In this case the NAA monies claimed in respect of Wilfred Belton are brought into s.69 Care Act 2014 by way of the Transitional Provision but subject to the preservation of the original limitation period. There may well be sums initially due under other legislation which are brought within s.69 by other transitional provisions without preserving the original limitation period: alternatively that is a legislative option which may be exercised in the future. In that event the three year s.69(3)(b) limitation period would apply if no provision to the contrary were made in the transitional legislation. Thus there is or may be a role for s.69(3)(b) Care Act 2014 - but not in the current case.

 

 

Conclusion

36.   The County Court does have jurisdiction to hear this claim by Nottinghamshire County Council. Section 56 NAA provides an alternative summary route to recovery but does not give the Magistrates' Court exclusive jurisdiction.

37.   In the County Court the limitation period for this claim under s.56 NAA was six years.

38.   The sums claimed in respect of the care of Wilfred Belton have now, by virtue of The Care Act 2014 (Transitional Provision) Order 2015, become recoverable under s.69 Care Act 2014. However the effect of Article 3(4) of the Transitional Provision is to retain the original six year County Court limitation period.

39.   Accordingly, whilst the issue has been reviewed on appeal in much greater detail than it was before the Recorder, the outcome is unchanged. This appeal is dismissed.

40.   With the conclusion of the appeal the stay of execution which has been in place is lifted.

Costs

41.   At the hearing on 22 nd September 2017 the parties agreed the costs position subject to my decision. Mr Belton accepts that if he loses the appeal, as he has, then he should pay the costs of Nottingham County Council summarily assessed in the sum of £6,320.40.

Handing Down

42. As agreed with the parties at the hearing I am sending them this judgment by email without embargo. It will be formally handed down in Court on Thursday 19 th October 2017. No attendance is required.


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