Non-Delegable Mandatory Duty to Arrange Updated Healthcare Plans under s.42(3) CFA 2014 and the Impact of Fresh Evidence

Introduction

This case arises from a judicial review brought on behalf of “A,” a severely disabled 12-year-old child, against the North Central London Integrated Care Board (the “Respondent”). A suffers from a rare genetic disorder requiring constant, specialist care. Under the Children and Families Act 2014 (“2014 Act”) and its accompanying regulations, the Integrated Care Board has a mandatory duty to arrange health care provision specified in A’s Education, Health and Care Plan (“EHC Plan”). A’s parents had engaged a private provider, Enviva, under a Personal Health Budget, but after concerns over quality the Respondent terminated Enviva’s contract and appointed successor providers. The parents declined the new provider’s services and continued privately with Enviva and a supplementary agency. A challenged three decisions by the Respondent:

1. Failure to arrange an updated, lawful health care plan (ground 1).
2. Irrationality in terminating Enviva’s contract (ground 2 – dismissed and not appealed).
3. Entitlement to repayment of the parents’ care costs (ground 3).

MacDonald J held that the Respondent breached its s.42(3) duty by relying on an outdated plan but acted rationally in terminating Enviva’s contract and rejected the restitution claim. On appeal, new evidence of a draft updated plan (“August 2024 draft plan”) emerged and the Court of Appeal considered:

• Admissibility and effect of the August 2024 draft plan;
• Whether the Respondent’s mandatory order should stand;
• Validity of the parents’ restitution claim;
• The Appellant’s alternative arguments to uphold the lower court’s decision.

Summary of the Judgment

The Court of Appeal (Whipple LJ, Males LJ, King LJ) concluded:

• The August 2024 draft plan is admissible as fresh evidence under CPR 52.21 and Ladd v Marshall criteria: it is genuine, relevant, and fundamental to the remedy question.
• The Respondent’s s.42(3) duty is absolute and non-delegable; a mere draft plan did not cure the earlier breach, but its existence materially affects the remedy.
• The mandatory order requiring an updated plan was quashed: by July 2024 the Respondent had lawfully terminated Enviva’s contract and no longer controlled plan finalization; any further update lay with A’s parents.
• The parents’ restitution claim was dismissed: after lawful termination, any costs borne by the parents were their choice, without wrongdoing by the Respondent.
• A’s Notice to Affirm (seeking to uphold ground 1 on other deficiencies of the June 2023 plan) was unnecessary and was dismissed.

Analysis

Precedents Cited

• R (L) v Hampshire County Council [2024] EWHC 1928 (Admin): s.42(3) is mandatory, not merely “best endeavours.”
• Ladd v Marshall [1954] 1 WLR 1489: fresh evidence admission criteria.
• Sharab v Al-Saud [2009] EWCA Civ 353; Terluk v Berezovsky [2011] EWCA Civ 1534: admissibility under CPR 52.21.
• Imam v Croydon LBC [2023] UKSC 45: remedy discretion in judicial review.
• Barton v Gwyn-Jones [2023] UKSC 3: four-stage test for unjust enrichment.
• Investment Trust Companies v HMRC [2017] UKSC 29: “at the expense of” in enrichment context.
• R (CP) v North East Lincolnshire Council [2019] EWCA Civ 1614: recovery of care costs by local authority.
• Hunt v Severs [1994] 2 AC QB 454: compensation for gratuitous care (distinguished).

Legal Reasoning

1. Section 42(3) 2014 Act: The responsible commissioning body “must arrange” specified health care—an absolute, non-delegable duty. Reliance on an outdated plan fails the mandatory requirement to reflect a multidisciplinary review outcome.

2. Fresh Evidence (August 2024 draft plan): Under CPR 52.21 a court may admit post-hearing material when it is genuine, relevant, and could not have been put before with reasonable diligence. The draft plan was known to A’s legal team but omitted; its admission is necessary for a fair remedy assessment.

3. Remedy Discretion: Judicial review remedies are discretionary (Imam). When the draft plan existed but the Respondent no longer commissioned A’s care, a mandatory order was pointless. The Respondent’s past breach was mitigated by evidence that an up-to-date draft was in train.

4. Unjust Enrichment: A claim requires enrichment, expense at the claimant’s cost, an unjust factor, and no defence. After lawful contract termination, the Respondent was not unjustly enriched—costs paid by A’s parents were their autonomous choice to retain Enviva.

Impact

This judgment clarifies:

• The non-delegable nature of s.42(3) duties and the minimum standard of “arrangement” as ensuring an up-to-date, multidisciplinary health care plan.
• Fresh evidence may be admitted even when known to one party, if its absence prevents a just outcome on remedy.
• In commissioning disputes, once a commissioning contract is lawfully terminated, displaced providers or families bear the burden of any private continuation.
• Restitution claims against public bodies require a causal link between unlawful act and claimant expense; autonomous parental choices fall outside unjust enrichment.

Complex Concepts Simplified

• EHC Plan: A statutory document under the Children and Families Act 2014 specifying education, health, and social care needs of children with special needs.
• Section 42(3) Duty: The local body must “arrange” any health care specified in the EHC Plan—this is an absolute obligation, not merely best-efforts.
• Personal Health Budget (PHB): Funds allocated to families to purchase approved care services directly.
• Judicial Review Remedy: Courts have a discretion to grant injunctions, mandatory orders, or declarations; they may refuse relief if circumstances change or a remedy is impracticable.
• Unjust Enrichment: A legal claim to recover gains obtained by another at the claimant’s expense where justice demands restitution.
• Fresh Evidence Admission: Under CPR 52.21, new evidence may be admitted if it is credible, relevant, and could not with reasonable diligence have been provided earlier.

Conclusion

This decision establishes that a commissioning body’s duty under s.42(3) of the Children and Families Act 2014 is absolute and non-delegable: it must ensure an up-to-date health care plan reflecting any multidisciplinary review. It also demonstrates the appellate court’s willingness to admit fresh evidence critical to remedy assessment, even if known to the unsuccessful party. Finally, the judgment confines restitution claims: once a public body lawfully ceases commissioning, any private continuation of care represents a parental choice, not an injustice warranting recovery. This case will guide future disputes over continuing care arrangements, evidential duties in urgent judicial reviews, and the limits of unjust enrichment against public authorities.