A new category of claim? Private law challenge against a public law decision

04 February 2021


The Claimant in this action, Surrey County Council (the “Council”), sought to bring a private law restitution claim against the NHS Clinical Commissioning Group (the “CCG”). The local authority claimed that the CCG had been unjustly enriched when they refused to accept their responsibility for a young man under the care of the Council.

A young man with autism (“JD”) was placed under the care of the Council in a specialist home in Lincolnshire. The Council carried the cost of his care and accommodation. In 2008, the Council sought an assessment for JD through the CCG (at this time known as the ‘Primary Care Trust’) to assess his eligibility for a NHS package of social care provided to people with long-term, complex health needs. However, the CCG refused to make the assessment on the grounds that they were not the correct NHS commissioning body. JD remained under the care of the Council until 1 February 2015 at which time the CCG accepted their responsibility. During this period, the Council spent a total of £1.5 million in the provision of accommodation and care for JD.

A claim was subsequently brought by the Council against the CCG for unjust enrichment.


It was common ground that this claim was novel in that it was a private law claim against public law decision. However, the Council argued that their claim of restitution was established on the facts. It was further accepted by all present that the CCG had acted unlawfully in refusing to assess JD. The Council presented that it was a direct result of this unlawful act that they had borne the cost of JD’s care, leaving the CCG unjustly enriched. While the CCG accepted they had acted unlawfully in refusing to accept commissioning responsibility for JD, they argued that did not benefit from this error as any money ‘saved’ on the cost of JD’s care was spent on other patients.

After reviewing the facts and various issues raised, the court concluded as follows:

  • There was nothing to prevent the Council perusing a private law claim in restitution;
  • The Council only found itself with the statutory responsibility for JD’s care because of the CCG’s unlawful act; and
  • As a result, the CCG found themselves enriched to the extent of the cost of the care fees paid. The argument raised that the CCG spent the funds on other patients presented a potential defence but they failed to discharge the evidential burden.

Therefore, the claim was allowed and damages paid.


Notably, the Council did not seek a remedy for this public law decision through judicial review. The defendant submitted during the course of proceedings that judicial review was the correct avenue for this claim due to the exclusivity principle first laid down in O’Reilly v Mackman [1983] 2AC 237.

However, Lord Justice Jackson rejected this assertion and provided the following interesting clarification as to the limits of this principle.

“The exclusivity principle applies where the claimant is challenging a public law decision or action and a) his claim affects the public generally of b) justice requires for some other reason that the Claimant should proceed by way of judicial review. The exclusivity principle should be kept in its proper box. It should not become a general barrier to citizens bringing private law claims in which the breach of public law is one ingredient.”

This commentary is of particular note, as the court did not indicate that the option to seek private law remedies for public law decisions should be limited to claims made by other public bodies. The exclusivity principle has long acted as a barrier to individuals seeking redress from public bodies through any means other than judicial review. Here, Lord Justice Jackson appears to have eased this barrier for both public authorities and private individuals alike.

With a wealth of experience in both the arenas of private law and judicial review, the Litigation and Dispute Resolution team at Carson McDowell stand ready to assist our clients to obtain their best remedy in either court.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.