Councils lose court battle for more deprivation of liberty funding

Four councils have lost their High Court fight against the government over funding for deprivation of liberty cases.

Mr Justice Garnham rejected the councils’ argument that health secretary Jeremy Hunt’s ongoing failure to provide adequate funding for the Deprivation of Liberty Safeguards (DoLS) had both created an “unacceptable risk of illegality” and breached a government agreement on funding ‘new burdens’ on councils.

Liverpool, Nottinghamshire, Richmond and Shropshire councils brought the judicial review. Government funding for DoLS has been maintained at around £34m a year. The group claimed local authorities in England needed between £450m and £600m a year extra to cope with the surge of DoLS cases triggered by the Supreme Court’s landmark ‘Cheshire West’ ruling in March 2014.

The judge rejected the councils’ arguments and refused their request that he issue a court order demanding Hunt remove the “unacceptable risk of illegality” by increasing funding.

He concluded the ‘new burdens’ doctrine, a government agreement with councils on funding for new local government responsibilities that arise from policy changes, contained no statement that promised local authorities more funding from government if a court judgment altered the understanding of what was required of councils.

It was “impossible” to read the doctrine as a promise that the government would “make good the difference” between the cost of implementing DoLS pre and post-Cheshire West, adding: “On its proper construction, there has been no breach of the doctrine.”

On the “risk of  illegality” argument, the judge found the evidence submitted by the councils “did not come close” to proving any of them were unable to meet the costs of meeting their DoLS duties within the total funding provided to them by government.

“Certainly, the evidence shows that doing so is, and will continue to be, extremely difficult; certainly the evidence suggests that complying with those obligations would necessitate diverting substantial sums from other parts of the councils’ budgets. But it does not establish that the proper funding of the DoLS regime cannot be achieved,” he said.

Garnham pointed to Liverpool council’s decision to use some of the extra funding provided to councils in the March 2017 budget to invest in libraries. This was an “entirely proper decision”, he said, but illustrated the discretion councils had over how they spent their funding.

“The local authority claimants are obliged, as a matter of law, to comply with their DoLS duty; they are not so underfunded as to make compliance with that statutory duty impossible; they cannot properly plead lack of funds as an explanation for not doing so. That being so, in my judgment, there is no risk of illegality as a result of the Defendants’ funding decisions. Accordingly, this element of the challenge cannot succeed.”

He said it was “impossible to read” the policy as providing a promise from central government to “make good the difference” between the pre and post-Cheshire West cost of DoLS, adding: “On its proper construction, there has been no breach of the doctrine.”

The decision will come as a blow to the four councils, who submitted evidence highlighting their struggles to cope with DoLS demand in the wake of the Supreme Court ruling.

Liverpool council representatives told the court the court DoLS cases now cost £1.2m a year, but the only extra government funding provided to help with Cheshire West was a one-off grant of £315,000 in 2015. The council had a backlog of at least 959 DoLS applications. The council’s director of adult services argued that service users “are going to be subject to unacceptable risks” unless the government provided more DoLS funding.

Richmond council said it needed an extra £1m a year to comply with the Supreme Court ruling. The council’s assistant director of adult services told the court DoLS teams had already been “stretched to the limit before the huge increase in the cost of DoLS”.

Shropshire council’s DoLS lead told the court the funding the council received for DoLS was £45,000, a “wholly inadequate” figure compared to the £1.6m a year she felt was needed. She said Shropshire had attempted to “plug the gap” by shifting funding from other services but even with those changes the council had not managed to provide safeguards “to even half of the people deprived of their liberty in our area”.

She said without extra funding she did not see how the council would be able to provide the mandatory safeguards lawfully.

Nottinghamshire council’s director of adult services said her department had seen a total of £100m cut from its budget since 2010. She said the council had a backlog of 172 DoLS applications, despite investing an extra £1m in one-off funding from reserves in DoLS services since the Cheshire West ruling.

Read the judgment in full: Liverpool City Council & Anor, R (On the Application Of) v The Secretary of State For Health [2017] EWHC 986