The local authorities for Liverpool, Nottinghamshire, Richmond-upon-Thames and Shropshire have issued a judicial review of great significance to everyone involved in community care law. The claim alleges an ongoing failure by the Secretary of State for Health properly to fund local authorities in England so that they can implement the Deprivation of Liberty Safeguards (“DOLS”) regime as it has expanded following the Supreme Court’s well-known decision in Cheshire West.
The claim is brought on two grounds:
- That the local authorities have a legitimate expectation based on the Government’s ‘New Burdens Doctrine’ which (it is alleged) commits the Government to quantify, fully fund and review all costs created by new burdens on local authorities, or alternatively that the Government must follow that policy unless it has a good reason for departing from it; and
- That the failure to fund creates an ‘unacceptable risk that individuals will not receive access to the safeguards to which they are entitled’ under Article 5 ECHR and the Mental Capacity Act, despite the best efforts of local authorities to comply with their duties.
This is, self-evidently, a hugely important issue both for local authorities and for the Government. The current provision of funding for DOLS from central Government stands at £34.5 million: the Claimants argue, based on figures produced by the Law Commission, that there is a funding shortfall of between £350m and £600m annually across England, and that this will be exacerbated by further local authority funding cuts. They seek both a declaration that the Secretary of State has acted unlawfully and created an unacceptable risk of illegality, and a mandatory order requiring the Secretary of State to comply with the New Burdens Doctrine.
The claim is brought and defended exclusively by 11KBW counsel: James Goudie QC and Hannah Slarks are instructed for the local authorities; Jason Coppel QC and Rachel Kamm represent the Secretary of State.