What now for deprivations of liberty?
What will the effect of the postponement of the Liberty Protections Safeguards be on local authorities? Local Government Lawyer asked 50 adult social care lawyers for their views on the potential consequences.
SPOTLIGHT |
A High Court judge has dismissed a legal challenge brought by four councils against the Health Secretary over government finance for implementing the Deprivation of Liberty Safeguards following the landmark 2014 Supreme Court ruling in Cheshire West.
The Supreme Court ruling in Cheshire West and Chester Council v P [2014] AC 896 provided an authoritative definition of "deprivation of liberty", establishing that the statutory regime for the deprivation of liberty covered people lacking capacity whenever the person concerned was under continuous supervision and control and was not free to leave the accommodation they occupied.
In the words of Mr Justice Garnham, the judge who heard the councils’ claim, “the costs of complying with the regime thus understood have proved to be very substantial indeed”.
In Liverpool City Council & Anor, R (On the Application Of) v The Secretary of State For Health [2017] EWHC 986 the four English councils – Nottinghamshire County Council, the London Borough of Richmond-upon-Thames, Shropshire Council and Liverpool City Council – sought to challenge what they described as the government's "ongoing failure to provide full, or even adequate, funding for local authorities in England to implement the deprivation of liberty regime".
They argued before the judge that the financial shortfall suffered by councils across the country generally was somewhere between one third of a billion pounds and two thirds of a billion pounds each year and claimed that the Government must meet that shortfall.
The local authorities sought a declaration that, by his failure to meet those costs, the Secretary of State for Health had created an unacceptable risk of illegality and was in breach of a policy known as the "New Burdens Doctrine". They also sought a mandatory order requiring the minister to remove the "unacceptable risk of illegality" and to comply with that doctrine.
The Health Secretary and the Communities Secretary (an interested party) contended that the claim was out of time, was without merit, and that no relief was appropriate.
Mr Justice Garnham agreed with the defendant minister. The judge concluded:
Mr Justice Garnham therefore refused the application.