A judicial review brought by local authorities challenging the government for failing to fund them to meet the extra costs of the deprivation of liberty safeguards after the UKSC decision in the Cheshire West case was dismissed.

R on the application of Liverpool CC (1) Nottinghamshire CC (2) LB of Richmond-upon-Thames (3) Shropshire Council -and- Secretary of State for Health, and Secretary for Communities and Local Government (Interested Party)[2017] EWHC 986 (Admin), Garnham J, 2 May 2017

The councils challenged 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 that the government had created an unacceptable risk of illegality and was in breach of a policy known as the “New Burdens Doctrine”.

The background to the challenge is the decision of the Supreme Court in Cheshire West and Chester Council v P [2014] AC 896, establishing that a person is deprived of their liberty whenever they are under continuous supervision and control and are not free to leave the accommodation they occupy. As a result, the numbers of people whose deprivation of liberty requires authorisation under MCA 2005 increased enormously.

The councils gave evidence of their difficulties in complying with the deprivation of liberty safeguards (DoLS) regime. For example, Liverpool CC had to find money by efficiencies and cuts from other areas, authorisations were not being sought where they should be and a significant number of people are deprived of their liberty in supported accommodation and domestic settings without authorisation. It estimated that the annual cost of administering the changes brought about by Cheshire West were about £1.2 million each year.

The councils referred to the costings exercise undertaken by the Law Commission, arguing that in order to fund the deprivation of liberty safeguards properly the government would need to provide between £405,664,343 and £651,564,435.

The court held:

• the claim was out of time and relief should be refused for that reason in any event;
• the councils are not unable to meet the costs of complying with their duties under the DoLS regime, although doing so is extremely difficult and involves diverting sums from other part of the councils’ budgets;
• it followed that the government had not created a risk of illegality;
• the New Burdens Doctrine does not promise that local authorities will receive more funding from the government if a court judgment alters the understating of what is required of local authorities; there was therefore no breach of the doctrine.

Transcript of the judgment : http://www.bailii.org/ew/cases/EWHC/Admin/2017/986.html