By Dan Parton
A council must tackle “significant” delays in processing Deprivation of Liberty Safeguards (DoLS) cases, the local government watchdog has said.
The Local Government and Social Care Ombudsman issued the call in a report on Surrey council, which had the highest DoLS backlog in England, with 5,700 outstanding requests, as of 31 March, 2022, according to NHS Digital figures.
The watchdog, who became aware of the situation during a complaints investigation, said the situation risked leaving people wrongly deprived of their liberty or in unduly restricted care arrangements.
This would be the case where a provider had issued an urgent authorisation – allowing it to deprive the person of liberty briefly – and there was then a long delay in the relevant council processing its application for a standard DoLS authorisation.
The ombudsman called on the council to produce an action plan to address the delays, which Surrey has agreed to do.
High DoLS caseloads and delays
Councils across England and Wales have been wrestling with high DoLS caseloads since the 2014 Cheshire West judgment which, in effect, lowered the threshold for what constituted a deprivation of liberty.
English councils received a record 270,650 DoLS applications in 2021-22, up 5.5% on the year before, with 124,145 cases left incomplete at the end of the year, 4% more than in 2020-21.
However, the ombudsman found the situation was particularly acute in Surrey, which received the 10th most applications of the 152 councils in 2021-22 (4,300).
Its average time to complete a DoLS assessment was 345 days – more than twice the English average of 154 days.
In addition, it only completed 7.6% of standard DoLS requests within the statutory time limit of 21 days – against a national average of 20.4%.
And while 44% of completed applications were granted nationally, just 23% were in Surrey, mostly because the person had died (36%) or there had been a change of circumstances (37%), such as a care home move.
“We cannot remedy the injustice that may have occurred to those who have died without a DoLS authorisation being assessed, who have had unlawful restrictions to their liberty,” said the ombudsman.
“However, there may be many people who, because of the Council’s delays in assessing DoLS requests, have had restrictions placed on them that were not the least restrictive options, had they been properly and promptly assessed.”
The ombudsman said the council’s action plan should be completed within three months of the watchdog’s decision and include details on how it would reduce the backlog of outstanding requests and respond to new requests in a timely manner.
Surrey should also consider offering a remedy to people unlawfully deprived of their liberty whose DoLS application was subsequently rejected or those whose cases were authorised but with less restrictive arrangements than they had been experiencing.
Council pledges to address issues
In response to the report, Surrey’s leader, Tim Oliver, said the council used a nationally recognised approach to prioritising applications – developed by the Association of Directors of Adult Social Services – “help[ed] the council respond urgently to those most in need of safeguards”.
Oliver confirmed the council would produce an action plan, backed by extra investment, addressing the issues raised by the ombudsman within the proposed timescale, and consider remedies in some cases.
“We regret all delays and are working hard to reduce outstanding requests in Surrey,” he added.
Liberty Protection Safeguards shelved
The case comes with the government having shelved its planned replacement of DoLS by the Liberty Protection Safeguards (LPS) beyond the next election, due next year.
The LPS was designed to be a more streamlined system that would reduce delays and provide people with quicker access to safeguards for their detention.
However, while the government said it remained committed to the reform, the lack of any planned implementation date – and of any commitment on the issue from Labour – has led some to question whether it will ever come into force.
Oliver added: “This is a complex area and we’re pushing for promised changes in the law and fair funding which will improve the system for protecting vulnerable residents.”