Councils taking Government to High Court over funding of assessments for vulnerable adults

Liverpool City Council, Nottinghamshire County Council, the London Borough of Richmond upon Thames and Shropshire Council are taking the Government to the High Court in a bid to secure additional funding for the cost of carrying out social care assessments for vulnerable adults.

The Deprivation of Liberty Safeguards (DoLS) assessment ensures that decisions made on behalf of people who lack mental capacity are being made in their best interests and do not inappropriately restrict their freedom.

The safeguards apply to people living in residential care or nursing care homes, and to those who are in hospital. Local authorities have to decide whether any requests for changes to care are appropriate, and review the DoLS authorisation at least once a year.

A Supreme Court judgement in 2014 – known as the Cheshire West judgement – has led to many more people needing to be assessed as it widened the definition of the term to a larger group of adults.

It also highlighted that people who lack capacity regarding their care, but are deprived of their liberty, even if they do not resist it, have to have lawful authority from the DoLS scheme or from the Court of Protection.

A recent Law Commission impact assessment estimated that nationally around £400 million is needed to fund DoLS properly, but the Government has, to date, only provided a grant of £35 million shared amongst all local authorities.

Now the four local authorities have launched a Judicial Review calling for the judgement to be treated as a ‘new burden’ and fully funded by the Government.

Speaking on behalf of Liverpool City Council, Councillor Paul Brant, Cabinet member for adult social care and health, said:

“Ensuring that the care provided is safe, unrestrictive and provided with dignity is absolutely critical to the health and wellbeing of people with a complex range of needs, their families and carers.

“Councils need to have the capacity, time and money to ensure the rights and needs of people are protected and this additional financial burden has to be seen in the context of a 58 percent cut in Liverpool’s budget since 2010.

“This action is very much as last resort which we have been forced to take because Government has failed to heed our pleas for additional resources.”

Samih Kalakeche, Liverpool City Council’s Director of Adult Social Care and Health, added:

“We fear that, without sufficient funding, we will be failing some of the most vulnerable members of our communities.”

Lee Chapman, Shropshire Council’s Cabinet member for adults, added:

“In the two years since the Supreme Court decision in Cheshire West, we have seen the number of requests for applications for Deprivation of Liberty Authorisations increase from approximately 160 to 1,400. That, allied to other significant consequences of the Judgement, and the failure of the Government to provide adequate funding, has left Shropshire Council and other councils with adult social care responsibilities in an impossible position, such that we have been left with no alternative but to commence these proceedings.”

The claim for judicial review has been issued by the High Court and was served on the Secretary of State for Health, Jeremy Hunt, and also the Secretary of State for Communities and Local Government, Greg Clarke, on Monday 6 June.  The Government’s response to the claim is currently awaited.

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