Deprivation of liberty court cases triple but fall short of Cheshire West predictions

The number of deprivation of liberty cases handled by the Court of Protection almost tripled last year but remained well short of the number councils believed was required to comply with a landmark Supreme Court ruling.

The cases rose from 525 in 2014 to 1,499 in 2015, figures published by the Ministry of Justice reveal. The figures included applications to the court from councils to authorise deprivation of liberty in community settings, such as supported living or shared lives schemes. They also included appeals against Deprivation of Liberty Safeguards orders, which apply to care placements in care homes or hospitals.

A breakdown of the numbers of each type of case was only available for the last six months of 2015. During this period more than two-thirds (68%) were applications to authorise deprivation of liberty in the community. Most were made through a streamlined process (Re X) introduced in November 2014 to allow uncontentious applications to processed without an oral hearing.

Impact of Cheshire West ruling

The streamlined process was introduced in order to help the court handle an anticipated flood of deprivation of liberty cases in the wake of the Supreme Court’s Cheshire West ruling. The ruling, handed down in March 2014, effectively lowered the threshold for what constitutes deprivation of liberty in care and requires authorisation.

Following the ruling, the Association of Directors of Adult Social Service (ADASS) predicted around 30,000 court applications a year would be needed to comply with the Cheshire West ruling.

The Ministry of Justice figures show applications have increased since Cheshire West but are still well short of the ADASS prediction.

Ben Troke, a partner at Browne Jacobson, said even the ADASS figures are likely to be an underestimate of cases requiring court authorisation as they did not account for placements where care was wholly commissioned by the NHS.

Troke said a number of factors could be contributing to the number of applications falling short of predicted levels.

“There are many reasons for the difficulty getting those cases to court. Some uncertainty was injected into the Re X process by the criticism of the Court of Appeal and the complications raised in subsequent cases, especially about the approach to representing P’s interests in the proceedings.

“The wider context is of very constrained resources, both for social worker time and in local authority legal teams, and many competing priorities, including the work created by the Care Act.”