Councils’ failure to make court applications leaving ‘widespread unlawful deprivations of liberty’

Unlawful deprivations of liberty in care placements are widespread, experts have warned, after research by Community Care found councils made just 1.6% of court applications they believe may be needed to comply with a landmark Supreme Court ruling.

Figures obtained from 110 of 152 English councils under the Freedom of Information Act revealed that local authorities made 286 applications to the Court of Protection to get legal authorisation for deprivations of liberty in community care placements, such as supported living, in 2014-15.

The total constitutes just 1.6% of the 17,829 applications the councils have identified could be needed to comply with the Supreme Court’s Cheshire West ruling of March 2014.

There are signs that the backlog of applications is not restricted to uncontentious care arrangements that are seen as lower priority. One local authority that identified 90 ‘high priority’ cases likely to require authorisation due to risk or conflict around the placement had only made eight applications.

The 17,829 figure given for potential deprivations of liberty in need of authorisation is also likely to be an underestimate. Several councils said they anticipated identifying more cases, some predicted hundreds more, and 10 councils had yet to carry out a scoping exercise.

‘Unlawful deprivation of liberty’

Our findings are the latest evidence of the huge pressure being placed on councils and social workers by a surge of deprivation of liberty cases triggered by the Cheshire West ruling.

Legal experts said they sympathised with the dilemmas facing council bosses and frontline staff in managing the ruling’s impact but warned that the low number of court applications amounted to “an acknowledgement of widespread unlawful deprivation of liberty”.

Local government leaders said they were committed to the principles of the safeguards and were prioritising risky cases but accused the government of failing to provide sufficient funding to help teams cope with a huge increase in demand.

The Association of Directors of Adult Social Services (Adass) estimate the ruling is likely to add £136m to annual deprivation of liberty costs for councils. Yet the government has only found £25m in one-off funding for 2015-16 to plug the gap in the short-term.

The government has also asked the Law Commission to table proposals to reform deprivation of liberty law across all settings. But this draft bill is not due until 2017 (Update: This afternoon the government brought forward the timetable for the Law Commission review. A draft bill will now be published in 2016), after which the government would have to publish legislation itself, have it passed by Parliament and then spend time preparing the social care and legal systems to implement it.

A Department of Health spokesperson said the government knew the “scale of the challenge” set by the Supreme Court ruling had led to difficulties in councils processing deprivation of liberty cases. The DH said the Law Commission project will help determine a way forward and in the interim councils should have a “proportionate plan” in place to manage the pressures.

Source: Figures obtained from 110 councils under the FOI Act

The Supreme Court ruling effectively lowered the threshold for a deprivation of liberty in care.This meant many more people who lacked the capacity to consent to such arrangements required human rights protections.

Applications by providers to detain people in care homes or hospitals must be authorised by councils in England under the Deprivation of Liberty Safeguards (Dols). Dols cases rose ten-fold in the year after the Supreme Court ruling.

The figures we publish today reveal the ruling’s impact on deprivations of liberty in community settings, such as supported living or Shared Lives schemes. In these cases local authorities must apply to the Court of Protection for authorisation for any deprivation of liberty that is the responsibility of the state.

Preparing a court application involves a series of assessments and input from social workers, doctors and local authority legal teams (see box at foot of article). Social workers estimate that each case can take the equivalent of between two and four days dedicated time to put together depending on complexity.

The flood that failed to materialise

Following the Cheshire West ruling, research by the Association of Directors of Adult Social Services (Adass) predicted court applications would hit around 18,000 in 2014-15, up from about 150 the previous year. That prediction was a key driver for the Court of Protection introducing a streamlined process, known as Re X, last November in anticipation of a flood of cases.

Our figures show that the predicted surge has yet to materialise. Almost half of the 286 applications made in 2014-15, came from just 11 local authorities. There were 52 councils that made no court applications despite scoping that almost 6,000 might be needed between them.

The Re X process, set up to handle thousands of applications by allowing for uncontentious cases to be processed without the need for an oral hearing, was used around 176 times. And over a year after Cheshire West, 10 councils had not completed any scoping exercise on the judgement’s impact.

Factors behind the lack of applications

Social workers, providers, legal experts and local authority leaders identified a range of factors for the lack of court applications. These included that:

• Social work teams and council legal departments were struggling to handle the substantial extra demand on top of existing casework.
• Councils faced juggling preparation for new duties introduced under the Care Act from April 2015 alongside deprivation of liberty pressures.
• Some authorities prioritised clearing backlogs for Deprivation of Liberty Safeguards cases last year above community placements.
• Each application brings a £400 application fee and costs could be far more if a hearing is needed.
• Some council legal teams felt that the risk of litigation for not making applications was low.
• Social workers lacked confidence on the court application process due to some receiving minimal training.

‘A breach of fundamental human rights’

Steve Broach, a barrister at Monckton Chambers and specialist in disability law, said our findings were further evidence that “a very large number of people” were likely to be deprived of their liberty without legal authorisation.

“That is a breach of disabled people’s fundamental human rights. So everyone has to do better. We have to have a workable process, but we also need public authorities to make more applications and, in each and every case, where disabled people are deprived of their liberty it needs to be properly authorised.”

Lucy Series, a research associate at Cardiff Law School and an expert on mental capacity law, said the figures amounted to “an acknowledgement of widespread unlawful detention”.

Series said the situation was “unacceptable” and that the variation in application rates between councils was concerning. However, she said she sympathised with the position facing local authorities and recognised that some progress was being made in shining a much-needed spotlight on issues with care packages involving deprivations of liberty.

Sophy Miles, chair of the Law Society’s mental health and disability committee, said our findings meant a “substantial number” of people were being deprived of their liberty without authorisation.

“I’m sure there are lots of reasons why local authorities are not managing to make anywhere near the numbers of applications they feel might be needed. I have lots of sympathy for the situation they are in. However, it is concerning that even with a simplified procedure we are still seeing real difficulties in statutory bodies making court applications.”

The five local authorities that made the most applications

Councils’ ‘committed to the principles’

Responding on behalf of Adass and the Local Government Association, Lorraine Currie, Adass lead for Dols, told Community Care that councils were committed to the principles of the Cheshire West ruling and said that the low numbers of court applications had to be seen alongside the pressures on councils to also process more than 100,000 extra Dols referrals.

“The cases that haven’t been brought to court yet should be ones triaged as relatively low priority because, for example, someone is settled and there is no conflict or disagreement about the placement,” she said.

“That’s not to say the safeguards for those people aren’t important but the shortage of resources provided for this work means local authorities are being forced to prioritise and contentious cases should be brought more quickly.”

However, best interests assessor and trainer Daisy Bogg said that, while there was a real issue with the capacity of teams, some councils weren’t taking their responsibilities to make applications seriously.

“Too many are basically sticking their fingers in their ears and hoping all of this will just go away and be superseded by something else,” she said. “Some local authorities are waiting for the Law Commission rather than applying the law.”

The strain on frontline staff

Bogg said frontline staff were feeling the strain: “We’re facing change after change after change. The deprivation of liberty pressure is huge and the disagreements between judges on interpreting the Supreme Court ruling really isn’t helping practitioners. The Care Act has come in as well. People are really trying hard. They are knackered. You can only stretch teams so far.”

One social worker said preserving the quality of assessments for Dols and court applications was becoming harder as teams were increasingly overworked.

“The government seem to have their head in the sand over this. The reliance on the outcome of the Law Commission review is frightening and naïve,” he said.

To further complicate matters, a Court of Appeal judgement issued yesterday raised question marks over the Re X process. The judgement hasn’t overturned the process but legal experts said it has raised critical procedural issues for the Court of Protection to address.

Broach said, in the meantime, councils should not use the issues around Re X as an excuse to delay applications.

“Public bodies need to make the applications and it will be for the Court of Protection to resolve a fair process based on the issues raised by the guidance from the Court of Appeal,” he said.

A Department of Health spokesperson said: “We know the scale of the challenge to local authorities and health and care providers set by the Supreme Court has meant difficulties in processing potential deprivation of liberty cases in the timeframes they would wish.

“The public consultation by the Law Commission, to start in July, will carefully consider the views of all stakeholders and determine a way forward. In the interim we would urge providers and local authorities to make sure they have a proportionate plan to ensure individuals who stand to benefit from scrutiny by the Court do so in a timely manner and without detracting from other vital service provision.”