Health Secretary defeats councils in High Court DoLS funding test case

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:

1. The claim was brought out of time and he saw no good reason for extending time. “It would plainly be prejudicial to good administration for budgetary decisions taken in 2016 to be quashed as a result of an application made almost three months later.”
2. The authorities cited by the claimants had not established as they had argued a principle of public law that "when public authorities establish a system of safeguards they are under a duty to ensure the system does not give rise to an unlawful risk of illegality".
3. Even if contrary to that conclusion, the "unacceptable risk of illegality" arguments could, in principle, be run in the present case, the claim could not succeed on the facts.
4. The claimants' evidence did not come close to establishing that any of the claimant local authorities was unable to meet the costs of complying with its duties under the DoLS regime. "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.”
5. The claimant councils “did not even attempt to suggest that the total sums available to them were insufficient to meet the total cost of complying with all their statutory duties. That being so, there can be no grounds for contending that the Government decisions on funding that might be used to meet the costs of the DoLS regime creates any risk of illegality at all. 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, there was no risk of illegality as a result of the defendants' funding decisions.
6. Counsel for the defendant minister was right that there had been no breach of the New Burdens Doctrine; and also to say in any event that the doctrine could not create a legitimate expectation on the part of the local authorities.

Mr Justice Garnham therefore refused the application.