Sufficiency of funding for the deprivation of liberty regime

July 30, 2017

Jonathan Cowen considers the decision of the Administrative Court in R(Liverpool City Council and others) v The Secretary of State for Health [2017] EWHC 986 (Admin) in which four local authorities challenged the sufficiency of funding for the deprivation of liberty regime.

This case is yet a further example of the difficulties that arise following the decision of the Supreme Court in 2014 in Cheshire West and Chester Council v P.

The basis for the claim in R(Liverpool City Council and others) v The Secretary of State for Health, was described by Garnham J in paragraph 2 of the judgment as follows:

By these proceedings, four English councils seek to challenge what they describe 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 suggest that the financial shortfall suffered by councils across the country generally is somewhere between one third of a billion pounds and two thirds of a billion pounds each year and claim that the Government must meet that shortfall. They seek a declaration that, by his failure to meet those costs, the Secretary of State for Health has created an unacceptable risk of illegality and is in breach of a policy known as the “New Burdens Doctrine” (“the NBD”).  They seek a mandatory order requiring the Secretary of State of Health to remove the “unacceptable risk of illegality” and to comply with that doctrine. 

The judge rejected the claim, stating in paragraph 48 of his judgment that:

In my judgment this claim is brought out of time and for that reason alone I would refuse the relief sought.  I see 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.   

Paragraphs 43 to 48 of the judgment contain a helpful analysis of the position where the court is deciding whether to refuse relief on the ground of delay.

The judge also then went on to consider the merits of the claim “In case this matter goes further, and in deference to the quality of the arguments..” and proceeded to reject the argument that funding to the claimants created an unacceptable risk of illegality and the argument that that failure to provide further funding constituted a breach of a legitimate expectation in the claimants.

This decision is also of wider importance as it provides further evidence of the enormous difficulties currently faced by local authorities in trying to meet their obligations as a result of the decision of the Supreme Court in Cheshire West. Thus, paragraphs 27 to 29 of the judgment record the frank admission by Liverpool City Council of the problems they face in this regard, stating as follows:

  1. Mr Samih Kalakeche is a director of Adult Social Services with Liverpool City Council. He describes the dramatic increase in the number of DoLS applications made every month since the decision in Cheshire West.  He explains the considerable efforts Liverpool Council has gone to in order to cope with the increase in demand.  He explains that the Council received a one-off grant of a little over £315,000 in 2015-16.  But that was insufficient and additional money had to be found “from efficiencies and cuts from other areas”.  He explains that, despite the fact that his colleagues are working at and beyond their capacity, the Council does not have the resources to ensure that authorisations are in place for everyone who needs them within the statutory timeframe.  He says that many care homes are not requesting as many standard authorisations as they should be and that, accordingly, numbers of applications are likely to increase in the future.  He says that a significant number of people are deprived of their liberty in supported accommodation or domestic settings without authorisations. 
  2. Mr Kalakeche explains that the Council’s budget report estimates the current annual cost of administrating the changes brought about by Cheshire West at about £1.2 million per year. He says the current situation is unsustainable and unless the Government funds DoLS “service users are going to be subject to unacceptable risks”.
  3. In a subsequent statement, Mr Kalakeche says that, due to changes in central government funding, Liverpool City Council is required to make £90 million of savings in the next three years. He says that there is currently a backlog of at least 959 standard authorisations to be considered and that it is projected that 2,687 applications will be submitted in the period to 31 March 2017.  He says that the Council has recently considered whether council tax should be increased.  Following a consultation, however, the Council decided not to proceed with plans for a referendum on this issue.  k

It is understood that there is no application for permission to appeal by any of the local authorities in the Liverpool case. It therefore appears that, for the foreseeable future, the funding problems for local authorities caused by the judgment in Cheshire West will continue.