Garnham J this week rejected an challenge by four local authorities against the Government's failure to provide additional funding to cope with the impact of Cheshire West and Chester Council v P  UKSC 19 - see R(Liverpool City Council & Anor) v The Secretary of State For Health.
Given the wide definition of "deprivation of liberty" confirmed by the Supreme Court in Cheshire West, the claimant authorities each estimated they would require over £1m in additional funding p.a. to cope with DoLS applications. They contended the lack of adequate funding from Central Government gave rise to an unacceptable risk of illegality and/or amounted to a breach of the Government's New Burdens Doctrine. They lost on all counts. First, the claim was late, notwithstanding it had been issued within 3 months. Second, properly interpreted the cases dealing with unacceptable risk were concerned with policies and procedural regimes, not with funding constraints. The claim failed on the evidence in any event. Third, the New Burden's Doctrine does not give rise to any legitimate expectation of additional funding where previous costs estimates haved proved inadequate.
So local authorities will have to find the cash from elsewhere...
"In my judgment the Claimants’ evidence did not come close to establishing that any of the Claimant local authorities is unable to meet the costs of complying with its duties under the DoLS regime. Certainly, the evidence shows that doing so is, and will continue to be, extremely difficult; certainly the evidence suggests that complying with those obligations would necessitate diverting substantial sums from other parts of the Councils’ budgets. But it does not establish that the proper funding of the DoLS regime cannot be achieved."