Deputies and Double Recovery: New High Court Judgment
A High Court judgment handed down on 13 February 2026 (R (CGT) v West Sussex County Council) has confirmed that capital held in a personal injury trust must be fully disregarded when carrying out a financial assessment under the Care Act 2014.
Rachel Burley-Stower acted in this Judicial Review on behalf of the Deputy for CGT, who is a disabled man who requires lifelong care.
CGT, a protected party, was the beneficiary of a discretionary trust created in 2012 from a Criminal Injuries Compensation Authority (CICA) award of over £3.5 million, including a substantial sum calculated by reference to future care costs.
CGT was born in 1994. He suffered a brain injury as an infant, resulting in severe cognitive and visual impairments, epilepsy and physical disabilities. He lives in specialist supported living accommodation. In 2011, his mother was appointed as his Deputy for property and affairs.
As part of the CICA award process, CGT’s mother and the Official Solicitor gave undertakings that public funding would not be sought under the National Assistance Act 1948 without Court of Protection (CoP) oversight. Those undertakings reflected the then-prevailing anxiety about “double recovery” following the case of Peters v East Midlands SHA.
CGT’s mother died in 2013 and his father, SGT, was appointed as his Deputy in 2014. His appointment did not include any restriction on applying for public funding, and he gave no undertaking.
In December 2017, SGT asked West Sussex County Council (WSCC) to assess his son’s needs under the Care Act 2014. This became a prolonged process and the council initially resisted, citing the 2012 undertakings. In 2020, it began meeting CGT’s care costs on a “without prejudice” basis pending an application to the Court of Protection to vary the terms of the deputyship. The council asked the CoP to introduce terms similar to the undertaking that CGT’s mother and the Official Solicitor had given to the CICA in 2012. Senior Judge Hilder dismissed the council’s application in 2023.
In June 2024, the council issued a formal decision letter which stated that they would cease to fund CGT’s care from July 2024; and demanded repayment of the care costs it had paid since July 2020. The council argued that social care funding would amount to “double recovery”, because CGT had already received a CICA award including future care costs. Rachel issued judicial review proceedings against the council’s decision.
The Court rejected the council’s arguments.
His Honour Judge Auerbach held that:
- Paragraph 15 of Schedule 2 to the Care and Support (Charging and Assessment of Resources) Regulations 2014 requires the value of funds held in a personal injury trust (as defined by reference to the Income Support Regulations) to be disregarded in full.
- Unlike paragraph 16 (which concerns direct personal injury payments), paragraph 15 contains no exception for sums identified as relating to care costs.
- The statutory language is “clear, unambiguous and unqualified,” and cannot be read down to exclude care-related elements of an award.
- Concerns about “double recovery” do not entitle Social Services to depart from the statutory Care Act scheme. The avoidance of double recovery is a matter for courts assessing or approving damages awards, not for councils conducting Care Act financial assessments.
- The council had also acted unlawfully by failing to carry out a lawful financial assessment and by seeking repayment of discretionary payments already made.
The Court quashed the decision to cease funding and to demand repayment.
This judgment provides important clarification that, under the current statutory framework, Social Services must apply the mandatory disregard for personal injury trusts as set out in the legislation, even where the original PI award included provision for future care.
We are delighted with this outcome for our client, as the council has now been ordered to refund CGT’s trust with the care costs that had been funded privately. This restored CGT’s trust to the position it would have been in had the council complied with its statutory duty. The council were ordered to pay CGT’s costs on the standard basis.
Rachel Burley-Stower says “This judgment will be welcomed by those acting for severely disabled claimants whose damages awards were intended to secure dignity and autonomy, not to relieve public authorities of their statutory obligations. It is a clear and principled reaffirmation of the rule of law in social care charging cases. Double recovery concerns are for the damages court, not for the Care Act assessor. For practitioners, the message is simple: PI trusts remain sacrosanct in means-testing under the Care Act. Attempts to circumvent that position are unlawful.”
For expert advice on Double Recovery and financial assessments under the Care Act, contact our Court of Protection and Community Care Law team on 01273 609911, or email info@ms-solicitors.co.uk.
