Councils threaten government with legal action over deprivation of liberty funding

A group of councils has threatened the government with legal action over ministers’ refusal to award ‘new burdens’ funding to cover a surge of deprivation of liberty cases.

The local authorities signalled their intent to launch a legal challenge if the government failed to provide extra funding in a “pre-action” letter sent to health secretary Jeremy Hunt.

Details of the letter, which was sent on 9 November, emerged in a court judgment handed down this morning.

The councils behind the claim are not named but Community Care understands only a handful of local authorities are involved. The Local Government Association (LGA) is not part of the claim.

The councils’ argue that the health secretary should fund the extra costs on councils brought by the Supreme Court’s Cheshire West ruling of March 2014.

The ruling effectively lowered the threshold for what constitutes deprivation of liberty in care. In doing so it dramatically increased the number of deprivation of liberty situations requiring authorisation.

Based on estimates from the Law Commission, the LGA has said that councils need an additional £172m a year to meet the costs of the Cheshire West judgement in relation to the Deprivation of Liberty Safeguards.

The LGA has argued the government should meet the extra costs under the “new burdens” doctrine, under which all new council responsibilities should be matched by adequate funding or an equivalent reduction in burdens elsewhere.

In evidence to the Public Accounts Committee inquiry last year, the Department for Communities and Local Government said the additional assessments arising from the Cheshire West ruling “do not count as new burdens” because it was a Supreme Court judgment that added to the costs on councils.

The Department of Health told the committee it had agreed a funding package of £25m for 2015-16 but any ongoing financial support to meet deprivation of liberty duties would be considered as part of local government’s overall funding package agreed in the spending review.

The spending review announced additional money for adult social care but overall local government will see its funding fall by 6.7% in real terms from 2016-20.

The spending review documents, published in November last year, made no mention of deprivation of liberty but did refer to several other pressures on adult social care. These included support for councils to “focus on core services”, increase provider fees and cover the costs of the National Living Wage.