Funding the Deprivation of Liberty Safeguards

A High Court judge has refused to interfere with Central Government’s alleged underfunding of the Deprivation of Liberty Safeguards regime. James Goudie QC analyses the ruling.

In R (Liverpool City Council and others) v SoS for Health [2017] EWHC 986 (Admin) four English councils sought to challenge the Government’s “ongoing failure to provide full, or even adequate, funding for local authorities in England to implement the deprivation of liberty regime“, the costs of complying with which have proved to be very substantial, following the Supreme Court Judgment in Cheshire West.

They suggested 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 claimed that the Government must meet that shortfall. They sought a declaration that, by his failure to meet those costs, the Secretary of State for Health (“the SoS”) had created an “unacceptable risk of illegality” and was in breach of the policy constituted by the “New Burdens Doctrine” (“the NBD”). They sought a mandatory order requiring the SoS to remove the “unacceptable risk of illegality” and to comply with the NBD.The effect of Cheshire West was that the numbers of persons whose deprivation of liberty would have to be authorised under the Mental Capacity Act 2005 would increase enormously. The SoS accepted that the costs of implementing the DoLS regime has, as a result of the Supreme Court’s decision, been much greater than had been initially anticipated.

The argument advanced by the claimants turned not on the mechanics by which funds are made available to local authorities by the Government but on the adequacy of those funds to meet the costs of DoLS.

Garnham J found against the councils both on the “unacceptable risk of illegality” argument and on the argument with respect to the NBD. As to the former, Garnham J concluded that there was “no such wide-ranging principle” of general public law as the councils contended for. He declined to accept that R (Hillingdon) LBC v Lord Chancellor [2008] EWHC 2683 (Admin) was authority for such a proposition.  He regarded that case as an irrationality challenge. He also concluded that if there were such a principle the councils could not succeed on the facts. The councils were not able to establish that they were unable to meet the costs of complying with their duties under the DoLS regime. It was, and would continue to be, extremely difficult. Complying with those obligations would necessitate diverting substantial sums from other parts of the councils’ budgets. But the evidence did not establish that the proper funding of the DoLS regime could not be achieved. The councils were not able 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 could be no grounds for contending that the Government decisions on funding that might be used to meet the costs of the DoLS regime created any risk of illegality. The councils were obliged, as a matter of law, to comply with their DoLS duty; they were not so underfunded as to make compliance with that statutory duty impossible; they could not 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.

As regards the NBD, the Judge ruled that there had been no breach, and that in any event the NBD did not create a legitimate expectation on the part of the councils. There was no clear, unambiguous and unqualified promise. There was no statement in the NBD which promised, expressly and unambiguously, that local authorities would receive more funding from the Government if a Court judgment altered the understanding of what was required of local authorities. On the contrary, the NBD made crystal clear that Government will not refund local authorities if an estimate of what the policy will cost turns out to be erroneous. It was impossible to read the NBD as providing a promise by central Government to make good the difference between the costs of DoLS and the estimates of those costs before Cheshire West. On its proper construction, there has been no breach of the NBD. A legitimate expectation could not be constructed by an amalgam of remarks by a public authority unless read together they provided the necessary clear and unambiguous promise. That was not provided here. A note from the Department of Health in March 2014 reminded local authorities of the obligations which they were under, as explained by the Supreme Court. That obligation, however, did not arise from any decision of Government. Instead it was the result of the Supreme Court’s interpretation of obligations introduced by primary legislation. The Note, read alone or with the NBD, contained no new promise of funding.

Garnham J concluded that this claim was not brought “promptly”. He refused to extend time. He rejected the argument that the funding to the claimants created an unacceptable risk of illegality. He rejected the argument that the failure to provide further funding constituted a breach of a legitimate expectation in the claimants. Accordingly, the application was refused.

James Goudie QC is a barrister at 11KBW.