Ombudsman criticises council with highest backlog in England of Deprivation of Liberty Safeguards assessment requests

The Local Government and Social Care Ombudsman has found that Surrey County Council failed to assess Deprivation of Liberty Safeguards (DoLS) requests in accordance with the timescales set out in the Mental Capacity Act regulations, meaning people may have been “restricted unnecessarily or wrongly deprived of their liberty”.

The DoLS provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation.

In a report the Ombudsman revealed that while investigating another complaint, it became aware of “significant delays” by Surrey in assessing DoLS requests.

Looking at NHS Digital figures for England, the Ombudsman found that Surrey had 5,700 outstanding DoLS requests on 31 March 2022. It noted that this was “the highest backlog in England”.

The report revealed that the NHS Digital figures showed the mean duration to complete a DoLS assessment in England is 154 days. However, the mean duration for Surrey to complete a DoLS assessment is 345 days.

Figures also showed that during 2021/22 the council assessed and made decisions on 3,700 requests.

Of these decisions, the council:

• Granted 840 requests
• Did not grant 1,320 requests because the person had died.
• Did not grant 1,400 a further requests because of a change in the person’s circumstances, such as a change in care home. A new DoLS request would need to be submitted.

The Ombudsman investigated and concluded that the council “appears to be following” the Association of Directors of Adult Social Services in England (ADASS) advice on prioritising cases.

However, the report noted, “the statutory timescales as set out in paragraph 10 still apply, and planned new legislation has not been introduced that may change these requirements.”

In response to the increase in demand for DoLS assessments, ADASS published a screening tool to help councils prioritise DoLS requests.

Considering whether the council was at fault, the Ombudsman said: “Based on the statistics that I have seen the council is failing to issue DoLS authorisations within the statutory timescales and in many cases the delay is so significant that the person has moved to another care or nursing home, or has died without the Council’s DoLS authorisation.”

To remedy the injustice caused, the Ombudsman recommended that within three months, the council should “create an action plan addressing the delays that have occurred in assessing DoLS requests”.

The Ombudsman said the council should state how it will:

• Reduce the backlog of outstanding requests and
• Respond to ongoing new requests in a timely manner.

It added that the action plan should consider a remedy in line with its published guidance on remedies for those cases where:

• A request is not approved, and an unlawful deprivation of liberty has had a potentially harmful impact on that person.
• A request is approved but with less restrictive measures, and an unlawful restriction of liberty has had a potentially harmful impact on that person.”

The council has agreed to remedy the faults in this case.

Tim Oliver, Leader of Surrey County Council, said: “Like many councils, we’re dealing with very high numbers of Dols requests and here in Surrey we receive higher numbers than most because of our large elderly population and wide coverage of care homes, hospitals and hospices.

“We use a nationally recognised approach to prioritising applications which looks at every case individually and helps us respond urgently to those most in need of safeguards. 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.

“We regret all delays and are working hard to reduce outstanding requests in Surrey. We will produce an action plan within the Ombudsman’s timescale which will set out further measures and consider remedies in some cases. The action plan will address the issues the Ombudsman has raised and include extra investment in this area.”

Lottie Winson