Councils seek judicial review over funding of Deprivation of Liberty Safeguards
Four local authorities have lodged a claim for judicial review against the Department of Health over the level of funding for the Deprivation of Liberty Safeguards (DoLS).
The case is being led by Liverpool City Council with Nottinghamshire County Council, Shropshire Council and the London Borough of Richmond also reported to be taking part.
The local authorities are seeking additional funding to address a significant rise in referrals following the Supreme Court’s 2014 ruling in Cheshire West, which meant more people were within the criteria for a DoLS assessment.
According to 11KBW, the claim is brought on two grounds:
1. That the local authorities have "a legitimate expectation based on the Government’s ‘New Burdens Doctrine’ which (it is alleged) commits the Government to quantify, fully fund and review all costs created by new burdens on local authorities, or alternatively that the Government must follow that policy unless it has a good reason for departing from it"; and
2. That the failure to fund "creates an 'unacceptable risk that individuals will not receive access to the safeguards to which they are entitled’ under Article 5 ECHR and the Mental Capacity Act, "despite the best efforts of local authorities to comply with their duties".
Cllr Muriel Weisz, Chair of Nottinghamshire County Council’s Adult Social Care and Health Committee, said: “This has led to an increase in referrals in Nottinghamshire from 300 per year to 2,800 in 2015/16 with an estimated maximum of 5,000 a year by 2018.
“Nottinghamshire County Council has approved an additional £3m for 2016/17, including £2m of permanent funding, to add to the authority’s existing £800,000 budget to address the increase in demand. The final cost is estimated to be around £5m a year.
“We believe the Cheshire West judgment has led to severe financial pressures on our already overstretched budgets and it should be treated as a ‘new burden’ that is fully funded by Central Government. The final cost to the council for this current year is therefore around £5m.”
A spokeswoman for the Department of Health said it would not be able to comment during ongoing legal proceedings.
Writing on the 11KBW Community Care Blog, Rupert Paines said: "This is, self-evidently, a hugely important issue both for local authorities and for the Government. The current provision of funding for DOLS from central Government stands at £34.5m: the Claimants argue, based on figures produced by the Law Commission, that there is a funding shortfall of between £350m and £600m annually across England, and that this will be exacerbated by further local authority funding cuts. They seek both a declaration that the Secretary of State has acted unlawfully and created an unacceptable risk of illegality, and a mandatory order requiring the Secretary of State to comply with the New Burdens Doctrine."
James Goudie QC and Hannah Slarks of 11KBW are instructed for the local authorities; Jason Coppel QC and Rachel Kamm, from the same set, represent the Secretary of State.
