LIMITATION, THE CARE ACT, COUNTY COURT JURISDICTION AND DIFFICULT TRANSITIONAL PROVISIONS.
In Nottinghamshire County Council v Belton, The Estate of & Anor  EW Misc 26 (CC) His Honour Judge Godsmark QC considered an issue of jurisdiction and limitation in a claim being brought by a local authority to recover fees paid for care.
The claimant local authority was suing for the recovery of care costs paid. The person receiving the care had died in 2015. He received care between 2010 and 2014. The local authority’s case was that payments had been made out of the estate to the second defendant. The claimant succeeded at trial. The defendant appealed. Permission to appeal was granted on the point of jurisdiction/limitation.
- The appeal was dismissed.
- The County Court had jurisdiction.
- The correct limitation period was three years.
“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
(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.