R (Liverpool City Council) v SSH [2017] EWHC 986 (Admin), [2017] MHLO 15

"By these proceedings, four English councils seek to challenge what they describe as the government's 'ongoing failure to provide full, or even adequate, funding for local authorities in England to implement the deprivation of liberty regime'. They suggest 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 claim that the Government must meet that shortfall. They seek a declaration that, by his failure to meet those costs, the Secretary of State for Health has created an unacceptable risk of illegality and is in breach of a policy known as the 'New Burdens Doctrine'. They seek a mandatory order requiring the Secretary of State of Health to remove the 'unacceptable risk of illegality' and to comply with that doctrine."

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.

The WLR Daily case summaries

[2017] WLR (D) 314

Queen’s Bench Division

Regina (Liverpool City Council and others) v Secretary of State for Health

[2017] EWHC 986 (Admin)

2017 March 15, 16; May 2

Garnham J

Local government— Funding— Deprivation of liberty safeguards regime— Local authorities claiming judicial review of Government’s failure to meet increased costs of implementing statutory regime— Whether Government under duty to provide increased funding— Whether failure to meet costs creating unacceptable risk of illegality— Whether governmental policy creating legitimate expectation of increased funding— Whether claim brought promptly— CPR r 54.5

As a result of a Supreme Court judgment in 2014, the costs facing local authorities in complying with the statutory regime for the deprivation of liberty of persons lacking capacity was much greater than initially had been anticipated. The Government’s local government finance settlement for 2016/17, published on 8 February 2016, provided a little less than £3.5 billion additional support for adult social care for the period to 2019/20. By a claim issued on 6 May 2016, two days short of three months from the date of that settlement, the claimant local authorities sought judicial review of the Government’s alleged ongoing failure to provide full, or adequate, funding for local authorities in England to implement the statutory deprivation of liberty safeguards (“DOLs”) regime. They suggested that the financial shortfall suffered by councils across the country generally was somewhere between one third of a billion pounds and two thirds of a billion pounds each year and claimed that the Government should meet that shortfall. The claimants sought relief by way of a declaration that, by his failure to meet those costs, the Health Secretary had created an unacceptable risk of illegality and was in breach of a governmental policy known as the “New Burdens Doctrine” (“the NBD”), and they sought a mandatory order requiring him to remove the unacceptable risk of illegality and to comply with that doctrine. The Health Secretary, and the Secretary of State for Communities and Local Government as interested party, contended that the claim was out of time and without merit.

On the claim—

Held, claim dismissed. (1) The grounds for making the claim had arisen no later than 8 February 2016 when the local government finance settlement had been published. It was trite law that CPR r 54.5 did not provide a three-month time limit for commencement of judicial review proceedings; claims had, in any event, to be filed “promptly”. What was “prompt” depended on the nature of the challenge. The present case was in substance a challenge to a budgetary decision of central government. It was self-evident that such a challenge had to be brought very promptly indeed since it potentially threatened the budgetary arrangements of the Government for an entire year. To delay the commencement of proceedings until two days short of three months was not prompt. Therefore, the claim had been brought out of time. Moreover, there was no good reason for extending time, since it would be prejudicial to good administration for budgetary decisions taken in 2016 to be quashed as a result of an application made almost three months later (paras 44, 45, 46, 48).

(2) Contrary to the claimants’ assertion, the authorities did not establish a wide-ranging principle of public law that when public authorities established a system of safeguards they were under a duty to ensure that the system did not give rise to an unlawful risk of illegality so that the Health Secretary was obliged to ensure that the DoLS system he funded did not give rise to an unacceptable risk of illegality. In any event, the claimants’ evidence did not come close to establishing that any one of them was unable to meet the costs of complying with its duties under the DoLS regime. Accordingly, there was no risk of illegality as a result of the Health Secretary’s funding decisions (para 57, 58, 68, 69, 71).

(3) There had been no breach of the NBD and, in any event, it did not create a legitimate expectation on the part of the local authorities. There was no clear, unambiguous and unqualified promise in the NBD that local authorities would receive more funding from the Government if a court judgment altered the understanding of what was required of local authorities, or make good the difference between the costs of DoLS and the estimates of those costs before the Supreme Court decision. On the contrary, the NBD made clear that the Government would not refund local authorities if an estimate of what the policy would cost turned out to be erroneous (paras 74–78).

James Goudie QC and Hannah Slarks (instructed by City Solicitor, Liverpool) for the claimants.

Jason Coppel QC and Joanne Clement (instructed by Treasury Solicitor) for the Secretaries of State.

Reported by: Benjamin Weaver Esq, Barrister

External links

BAILII

Andy McNicoll, 'Councils lose court battle for more deprivation of liberty funding' (Community Care, 3/5/17)