Councils lose High Court battle over deprivation of liberty funding

FOUR COUNCILS that took legal action against the Government in a bid to secure extra funding for social care assessments for vulnerable adults have lost their battle at the High Court.

Mr Justice Garnham rejected the argument of Liverpool, Nottinghamshire, Richmond upon Thames and Shropshire councils that the Government’s “ongoing failure to provide full, or even adequate, funding” for carrying out Deprivation of Liberty Safeguards (DoLS) has created an unacceptable risk of illegality and breaches the New Burdens Doctrine. 

DoLS assessments are designed to ensure decisions taken on behalf of people who lack mental capacity are made in their best interests and do not inappropriately restrict their freedom. Local authorities have to decide whether requests for changes to care are appropriate and must review DoLS authorisations at least once a year.

The number of assessments surged after a landmark Supreme Court ruling in 2014 that defined those covered by DoLS as anyone subject to both continuous supervision and control, and who is not free to leave.

The authorities put the national shortfall for DoLS assessments at between around £330m and £660m a year, yet the Government only provides £34m a year to be shared among all local authorities.

But Mr Justice Garnham said there were no grounds to argue that the Government’s funding decisions create an unacceptable risk of illegality and that the councils “did not come close” to proving that they are unable to meet the cost of their DoLS duties.

“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,” he wrote.

“But it does not establish that the proper funding of the DoLS regime cannot be achieved.”

He noted that following the Government’s announcement of additional funding for adult social services in the Budget, the leader of Liverpool City Council indicated that the money would be spent on library services. This “entirely proper decision” illustrates that councils have discretion over how they allocate much of their available funding.

In addition, Garnham ruled that the New Burden Doctrine has not been breached because it does not guarantee additional funding if court rulings change the requirements on councils.

“On the contrary, in my view, the NBD makes crystal clear that Government will not refund local authorities if an estimate of what the policy will cost turns out to be erroneous, which is what has happened here,” he said.

The ruling is a major blow for the councils. Liverpool City Council has said the Supreme Court ruling has increased DoLS requests 20-fold to around 200 a month. It puts the costs of assessments at over £1m a year.

Richmond Council said it had been “stretched to the limit” before the increase in DoLS costs and would need an extra £1m a year to comply with the Supreme Court ruling.

Shropshire said the £45,000 it received for DoLS assessments was “wholly inadequate” and even with funding from other areas, it has not been able to provide safeguards to even half of those deprived of liberty in its area.

Nottinghamshire County Council said its adult services department has seen its budget cut by £100m since 2010 and, despite investing an extra £1m from its reserves since the Supreme Court ruling, the authority has a backlog of 172 DoLS applications.