Four councils have launched a legal challenge against the government on the grounds it has failed to provide sufficient funding for the Deprivation of Liberty Safeguards (DoLS).
Nottinghamshire, Richmond, Shropshire and Liverpool councils have lodged a judicial review against health secretary Jeremy Hunt, arguing he has created “an unacceptable risk of illegality” by leaving councils without adequate funds to meet their statutory duties to vulnerable service users.
The councils also claim Hunt has breached the government’s “new burdens” doctrine by failing to increase the funding provided for DoLS despite the Supreme Court’s landmark ‘Cheshire West’ ruling in March 2014 triggering a tenfold rise in cases.
The local authorities say government funding for DoLS has been maintained at around £34m a year. The Local Government Association has argued at least an additional £172m a year is needed to meet the costs of the Cheshire West judgment in relation to DoLS.
The Law Commission has estimated between £405m and £651m is needed annually to fully comply with the ruling. This estimate includes both DoLS cases and the applications to the Court of Protection required to authorise deprivation of liberty in community settings, such as supported living.
The new burdens doctrine requires government to match new local government responsibilities with adequate funding or an equivalent reduction in burdens elsewhere.
The government has previously argued the increase in DoLS demand “does not count” as a new burden because it arose from a Supreme Court judgment, not a government decision. The councils claim in order to implement government policy lawfully, they must follow the Supreme Court judgment, therefore it is a new burden.
The judicial review application claims Hunt’s failure to act on the Cheshire West ruling has left councils with a “massive funding deficit” in delivering the DoLS protections. As a result councils are racking up growing backlogs of DoLS referrals and have arrived at a “reluctant acceptance” that they must follow Department of Health guidance to ‘prioritise’ which people should receive the safeguards.
The councils argue this guidance is “astonishing” and “unlawful” as it risks individuals not receiving safeguards they are entitled to.
The councils also argue there is insufficient funding to handle deprivation of liberty cases in the community. As a result hundreds of people are also deprived of their liberty in the community without any protection from the Mental Capacity Act due to the pressure on the system, they claim.
The councils submit that their experiences are “broadly representative of a national crisis” caused by Hunt’s “unlawful” failure to meet his duties.
The Department of Health said it would not comment on ongoing legal proceedings.
‘We cannot keep placing social workers under this pressure’
The councils’ judicial review application includes concerns over the pressure being placed on social workers, and particularly Best Interests Assessors.
In a statement, a witness from Liverpool council said: “We cannot keep placing our BIAs and social workers under this level of pressure. I am deeply concerned about the impact upon the BIAs and the DoLS team in an environment that I can see is only getting more and more difficult as we strive to ensure Article 5 rights are enforced.
“We have to look at the risks of social workers burning out as they undertake more and more of this work outside of usual working hours. They must be able to feel that they can do the job properly and protect people’s rights.”