Date of decision: 08/03/2019
During the investigation of a complaint the LGSCO became aware that in May 2016 Staffordshire County Council made a decision not to assess DoLS requests it considered to be of ‘low’ or ‘medium’ priority and significantly delayed carrying out the remaining assessments it considered to be of ‘high priority’. The LGSCO made the decision to investigate the actions of the Council pursuant to s.26D Local Government Act 1974 on the basis that the actions of the Council would most likely affect those who were vulnerable, unaware of their rights in law and who may not have been able to complain.
The Council was in a similar position to many councils in 2016. It had increasing financial pressures and had a backlog of DoLS requests which had increased significantly following the Supreme Court decision in P v Cheshire West and Chester Council and P &Q v Surrey County Council  UKSC 19.
Following the decision in Cheshire West, the Council claimed it had a fourteen-fold increase in DoLS requests. In May 2016 at an informal cabinet meeting, a decision was made not to carry out assessments for requests it considered to be of ‘low’ or ‘medium’ priority. The Council accepted that this did not comply with legislation or statutory guidance but stated that its decision was based on finite financial resources. The Council claimed that it only had enough capacity to deal with the numbers of requests prior to the Supreme Court decision.
The Association of Directors of Adult Social Services (ADASS) had produced a screening tool within its guidance for Local Authorities in relation to DoLS. This encouraged councils to prioritise requests with a ‘low’, ‘medium’ or ‘high’ ranking based on risk.
The Council determined that it needed to develop its own policy and in doing so developed criteria that were different to the ADASS tool. This ‘adapted’ version led to even fewer requests being viewed as ‘high’ priority. The Council stated that it needed to adapt the ADASS tool because it had identified that using the tool would lead to most of its requests being considered ‘high’ priority. It also stated that it:
“required a tool which would enable limited financial resources… to focus on those individuals in which the risks were perceived by a registered professional to be the greatest”.
The Council also adopted a system whereby it employed suitably qualified professionals to carry out ‘screening’ activity based on risk. It supported this system with ‘Prioritisation Moderation Sessions’ which aimed to promote consistency in decision-making. The introduction of this system saw a 50% quicker processing of requests received between January and March 2018 compared with the same period in 2017. This system evidenced that the Council had a quick response to incoming requests, but these responses were of course only based on the limited information provided by those referring.
What was found
Since July 2017, the Council was able to demonstrate that it had met the 21-day requirement for carrying out assessments for standard authorisation for those cases it had deemed ‘high’ priority. However, most of its requests were deemed ‘low’ or ‘medium’ priority so it did not assess them at all.
The Council took an average of 18 days to assess ‘high priority’ urgent requests. The LGSCO identified that most urgent requests received by the Council were not assessed at all as they were not deemed ‘high’ priority. 92% of the requests made to the Council were not assessed at all or assessed late.
The Council issued ‘not granted’ decisions within the expected timescale of 21 days. Its average for doing so was 17 days which was within expectations for standard authorisations but exceeded the 7-day expectation for ‘urgent’ applications.
At the end of June 2018, the Council had a backlog of 3,033 applications, the eldest of which dated 11th August 2014 – ie four years during which that person had been presumptively unlawfully deprived of their liberty and denied their legal rights.
Since its policy decision in May 2016, the Council had closed 1957 applications without assessment as individuals had died before it got round to assessing them. The Council claimed that its policy enabled it to focus its resource on those at most risk and that it was not designed to be exclusionary. The LGSCO saw the situation differently and viewed the policy as excluding a whole cohort of people by applying its priority criteria.
The Council had been trying to reduce its backlog in authorisation requests since 2017. Its backlog only concerned those it deemed ‘high’ priority so its 59% increase in assessments still didn’t reach those who had been deemed ‘low’ or medium’ priority.
To clear the total backlog of all requests and address those incoming, the Council claimed it would require £3.5m. It cited that members would not support this as it would only lead to compliance with legislation that was no longer fit for purpose. Furthermore, it would be unable to recruit and train the required number of Best Interest Assessors prior to the forthcoming but now somewhat delayed changes in legislation.
The Council informed the LGSCO that it was reviewing its policy but the LGSCO was rightly concerned that there may be people within its backlog that were unlawfully deprived of their liberty or for whom there were less restrictive options.
The LGSCO investigated a sample of 57 cases received during one week in 2017. It found the following:
- 16 cases were closed because individuals had moved or died;
- 18 were in the unassessed backlog and deemed ‘low’ or ‘medium’ priority;
- 21 requests were assessed and granted;
- 2 requests were ‘not granted’ following assessment.
The two that were not granted were of concern. The timescale for issuing not granted decisions should be 7 days from receipt of an urgent request. One took 7 weeks and the other took 12 weeks. Whilst the LGSCO found that these individuals did not suffer significant detriment as they had both regained mental capacity by the time the assessments were carried out, they did of course experience delay at the hands of the Council.
The LGSCO was also concerned at how one person was being deprived of their liberty and whether that was having a detrimental impact on the person’s well-being. This was later dealt with by via the Court of Protection.
The Council was found at fault for failing to assess a majority of DoLS applications as despite its financial pressures, the Mental Capacity Act 2005 and the DoLS Code of Practice still applied.
The LGSCO found that this was potentially causing an injustice to approximately 3000 people who had no or delayed access to proper legal process in relation to a deprivation of their liberty.
The LGO noted that
44. Applying the process properly would not change the outcome for most of the people affected, other than confirming that it is in their best interests to be deprived of liberty. However, it is possible that some of the people stuck in the backlog for years should never have been deprived of their liberty.
Whilst the LGSCO found that the outcome for people may not have changed, it was concerned that people within the backlog may have been wrongly deprived of their liberty. At worst, this Council had someone waiting for four years.
The LGSCO recognised the financial context of Council resourcing but found that it was unacceptable for this Council to only resolve the applications it deemed ‘low’ or ‘medium’ priority by relying on relocation or deaths of vulnerable individuals.
The LGSCO made the following recommendations to the Council:
- The Council should produce an action plan for how it would deal with all incoming DoLS requests and the backlog of unassessed DoLS requests.
- The Council should produce the action plan within three months of the amendment to the Mental Capacity Act 2005 being finalised by Parliament.
- The action plan should take into account any changes to the law and Government guidance.
- The action plan should include a mechanism for addressing those cases where the request is eventually not approved, and an unlawful deprivation of liberty has had a potentially harmful impact on that person.
- The Council should review the action plan should there be any further changes to the law or Government guidance.
- The Council must consider the report and confirm within three months the action it has taken or proposed to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and provide evidence to the LGSCO.
Points for the public, service users, hospital leavers, family and peer supporters, advocates, and councils etc
This complaint clearly demonstrates that Councils are not above the law – but may make many consider whether without rights or remedies in such cases as these, they may as well be.
The Council was clearly under financial pressure, as all local authorities are. It attempted to address this without seeming to grasp that the legal rights of individuals it had a responsibility towards were involved – vulnerable individuals, who may not otherwise have been able to complain or been aware that their rights existed.
The Council developed its own policy but overlooked the problem that the ADASS tool is itself no answer to the legal rights of the service users. We have been successful in damages cases brought on behalf of clients where the ADASS tool has been put up as the excuse!
To be fair, ADASS’s introduction to the guidance cautions that the “use of this tool must be balanced against the legal criteria for the Deprivation of Liberty Safeguards which remains unchanged”. The tool suggests criteria for prioritising requests into ‘higher’, ‘medium’ and ‘lower’ priorities. It does not suggest that councils should not carry out assessments for requests classed as medium or lower priority.
The LGO says this:
“We do not criticise the approach of prioritising applications as suggested by ADASS and endorsed by the Government.”
We can’t share that position. ADASS is a charity that gets funding from central government from time to time. To our minds, ADASS is in no better position than anyone else to interpret what the sanction should be when the councils are not capable of affording to do the right thing. The fact that the tool does not say what to do when applications are not scored ‘high’ is nothing to the point: it is clearly a tool that recognises that prioritisation does not cure the legal problem, and by not saying so – in relation to the 7 days or 21 day periods, it is disingenuous and relies on people’s unawareness. The idea that this is all endorsed by government and that that signifies anything for anyone is a bit of a fudge too, here, we feel.
It is a human rights blot on the face of the sector, which nobody does anything about. We at CASCAIDr have an excuse: we don’t DO safeguarding work. Any of the barristers’ chambers who act on CoP matters could bring JR proceedings in the public interest, acting pro bono. The Official Solicitor could act for any one of the people not put through the safeguards. It can’t be an accident that nobody takes that step.
As per 39 Essex St Chambers’ commentary from 2016 on the JM case in which Charles J. excoriated the government for not treating the matter as something to deal with.
The deadlock between the government and the executive is resulting in those lacking capacity not being moved out of inappropriate care settings because the Court has not authorised the next deprivation of liberty. All practicably workable solutions to meet the increased workload following Cheshire West are likely to involve more expenditure in a time of austerity. This is not something that the court can compel the Secretary of State to provide. As the backlog of cases continues to build, we are left wondering whether we have now reached a stalemate. There is, at the moment, no foreseeable way out of this predicament. However, the clear message to public authorities is to continue making applications where an individual is being deprived of their liberty in circumstances requiring authorisation from court.
Ultimately the law still exists and this Council needed to recognise that. This was reported by the Law Commission with regard to the way in which the LPS might be developed:
“A number of local authorities reported that, in the wake of Cheshire West, they do not have the resources to prioritise potential deprivations of liberty outside hospitals and care homes, and many such cases are being left unassessed and not being taken to court when they should be. This situation is not acceptable. Any “savings” currently being achieved are largely through non-compliance with the law, and in our view this does not provide a legitimate reason for maintaining the current position. It is vital that any new scheme must deliver practical and effective Article 5 rights.”
The law exists to protect the most vulnerable individuals and whilst it is undergoing some change, it was and is still current. It is on the basis of individual rights under the Mental Capacity Act 2005 as amended, and the DoLS Code of Practice, that Councils can be challenged. Councils must act lawfully when managing their resources.
Staffordshire noted that no one had complained about the policy, that its triage system ensured no harm to individuals was likely because it assessed those cases where there was a real possibility that a person may be deprived of their liberty inappropriately, and that in the unlikely event a person was deprived of their liberty inappropriately, they would have a court remedy and would probably be entitled to compensation. We think that the Council was also fortunate here as it could have been subject to a financial remedy had those individuals who had been unlawfully deprived of their liberty and suffered injustice as a result, wanted to complain.
This complaint demonstrates the breadth of investigation the LGSCO has to offer and its role in protecting legal rights for vulnerable individuals. It’s because of s26D of the Ombudsman’s own governing legislation that it could be explored:
(1) This section applies to a matter which has come to the attention of a Local Commissioner if—
(a) the matter came to his attention during the course of an investigation under this Part or Part 3A of this Act,
(b) (subject to subsection (3)) the matter came to his attention—
(i) before the person affected or his personal representatives had notice of the matter, or
(ii) in any other case, before the end of the permitted period, and
(c) it appears to the Local Commissioner that a member of the public has, or may have, suffered injustice in consequence of the matter.
The jurisdiction under s26D is to take on a case even where there is nobody to consent to a complaint being made on their behalf, if the LGO believes the person may have suffered injustice. The advice to staff is that they should also consider whether it is appropriate to raise safeguarding concerns with the appropriate body in these cases.
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The full Local Government Ombudsman report into the actions of Staffordshire County Council can be accessed here: