Deprivation of liberty safeguards caseloads rose ten-fold in year after Supreme Court ruling

Figures indicate councils are running up backlogs of cases as less than half of applications have been completed

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Local authorities have seen deprivation of liberty safeguards (Dols) caseloads rise more than ten-fold in the year after a landmark Supreme Court ruling triggered a surge in referrals, official figures show.

Figures submitted to the health and social care information centre from 116 of 152 local authorities in England showed that 113,300 Dols applications were received in 2014-15, more than ten times the 10,900 cases the councils handled in 2013-14.

In 2014-15, 36% of applications were granted and 10% rejected. But, in a sign that councils are running up backlogs of cases, the majority of applications (54%) made in 2014-15 had not been signed off or had been withdrawn. The previous year just 3% of cases had not been processed or were withdrawn.

Dramatic impact of court ruling

The statistics confirm the dramatic impact of a Supreme Court ruling handed down on 19 March last year in the cases of Cheshire West and P & Q. The judgement effectively lowered the threshold for what constitutes deprivation of liberty in care. In doing so it significantly increased the number of people requiring assessment for protection under the Dols scheme.

At the time of the Cheshire West ruling some questioned whether any spike in referrals might prove temporary but today’s figures revealed that applications have increased across the year since the judgement was handed down.

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The situation has put local authority Dols teams under severe pressure. Last October, research by Community Care found that half of Dols cases were breaching legal timescales as councils racked up backlogs of referrals. In a bid to cope, local authorities have spent over £1m hiring in independent best interest assessors (the social workers trained to coordinate Dols cases), trained up more in-house staff up as assessors and set up dedicated Dols teams.

Table from the HSCIC figures showing the backlog in cases

Table from the HSCIC figures showing the backlog in cases

Government funding

In March, following sustained lobbying from local authority leaders, the coalition government announced it would provide an extra £25m in 2015-16 to help councils manage the pressures on Dols caseloads brought by the Cheshire West judgement. The funding is about one quarter of council leaders’ estimates of the costs of the judgement for authorities and will only be available for one year only, on a non-ring fenced basis.

In a bid to find a longer term solution, the last government asked the Law Commission to review the frameworks for authorising deprivation of liberty, including the Dols. The commission will publish initial proposals for a new framework next month. The consultation will last four months. Draft legislation will not be published until 2017.

About the ‘Cheshire West’ ruling

The Supreme Court’s judgement in the linked cases of P v Cheshire West and Chester Council and P&Q v Surrey County Council in effect lowered the threshold for what constitutes a deprivation of liberty in care.

The court’s “acid test” said that a person who lacked capacity to consent to their care arrangements was deprived of their liberty, under Article 5 of the European Convention of Human Rights, if:-

    1. they were under continuous supervision and control;
    2. they were not free to leave, and;
    3. their care arrangements were the responsibility of the state.

The ruling rendered irrelevant factors that had been allowed for in the past, such as whether the person objected to their care arrangements.The Supreme Court also made clear that such a deprivation of liberty would apply in a domestic setting, as well as in health or social care placements.

The judgement was welcomed for extending key human rights safeguards to a broader group of vulnerable people. But it meant that, overnight, many people in care homes, hospitals and supported living arrangements suddenly met the threshold to have their care arrangements assessed or reassessed to see if they were deprived of their liberty and, if so, whether or not this was in their best interests.

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