Applications made to the court by councils for Deprivation of Liberty Safeguards in the aftermath of the Cheshire West and Cheshire Council ruling have increased by more than 100 percent, according to recent research.

Local Government Lawyer and LexisNexis surveyed 56 councils, looking for practitioners’ views on issues such as the impact of the Supreme Court ruling in Cheshire West and Cheshire Council v P UKSC 19.

The Supreme Court decision was about the criteria for judging whether the living arrangements made for mentally incapacitated people amounted to the deprivation of liberty. The outcome was that far more people than previously realised, were recognised to be subject to the Deprivation of Liberty Safeguards (DoLS).

Some two-thirds of respondents to the survey (67 percent) said applications made to the court by their council had increased by more than 100 percent, thanks to the ruling. Data published by NHS Digital show local authorities received nearly 200,000 DoLS applications from care homes and hospitals in 2015/16.

What have councils done to cope with this? Local Government Lawyer’s respondents said officials had reviewed cases and then tried to prioritise the highest risk ones for applications to court. Dedicated teams had been set up, whose role it is to ensure the Association of Directors of Adult Social Services’ guidance is adhered to and delivering extra training and briefings for social workers.

The response, though, wasn’t always seen as successful. Lawyers didn’t think the measures put in place worked – not a criticism of the councils, but more a comment on the lack of funding from central government. Four local authorities recently challenged government finance for implementing DoLS post the Supreme Court ruling at the High Court.

The claimants said the financial shortfall was somewhere between one third and two-thirds of a billion pounds and that the Government should meet this amount. They said the Health Secretary had created an unacceptable risk of illegality and was in breach of the policy of “New Burdens Doctrine”. They also asked for a mandatory order that the minister remove the risk and comply with that doctrine.

The High Court, however, agreed with the defendant ministers. The claim had been brought out of time, the authorities hadn’t established that any of them were unable to meet the costs of complying with their duties under DoLS, and there was no breach of the New Burdens Doctrine.

NHS bodies and local authorities had previously pointed out the practical and financial impact of Cheshire West would be significant, and the Government’s law reform advisory body suggested DoLS was replaced with a new scheme called Liberty Protection Safeguards. The current system is too “theoretical and illusory”.

Implicating the response to the Supreme Court ruling is made additionally difficult because local authorities have needed to deal with the Care Act 2014 at the same time, legislation that is intended to bring together and update the legal framework for care and support.

The original article Legal and reputational risks to councils in adult social care growing, lawyers say appeared in Local Government Lawyer’s website, July 2017. Click here to view the new report from Local Government Lawyer in association with Lexis Nexis.