Staffordshire County Council’s decision not to assess some vulnerable people who may have been unlawfully deprived of their liberty has been criticised in an investigation by the Local Government and Social Care Ombudsman.

Certain assessments need to be carried out before depriving someone of their liberty can be authorised, if it is believed this is in the person’s best interests and necessary to protect them from harm. But in May 2016, Staffordshire County Council decided it would stop carrying out any assessments except those cases it classified as high priority.

At the time it made the decision, it was aware it would not be complying with relevant legislation and statutory guidance, but made the decision because of a lack of finances.

The council created its own guidance for ranking Deprivation of Liberty Safeguards (DoLS) requests into three priority bands. This was based on guidance issued by the Association of Directors of Adult Social Services (ADASS) regularly used by councils, but Staffordshire used an adapted version meaning fewer requests were categorised as high priority.

At the end of June 2018, the council had a backlog of 3,033 DoLS requests for which it had not carried out the relevant assessments, with some dating back to August 2014. Without the correct authorisation in place, there is a risk that people are being unlawfully deprived of their liberty.

Since May 2016 the council told the Ombudsman it has closed nearly 2,000 applications without assessment because a person had died before one could take place.

Michael King, Local Government and Social Care Ombudsman, said:

“We issued a focus report in 2017 highlighting the problems we were seeing in this area, and although we believe Staffordshire’s response is at the extreme end of the way councils are dealing with DoLS issues, I would urge others to look at how they are carrying out assessments to ensure they comply with relevant law and guidance.

“Resource constraints can never be a legitimate reason for not carrying out the assessments required by law or statutory guidance. While councils may decide how to prioritise cases, it is not acceptable that the only way low and medium priority applications are resolved is because the people involved move away or die.

“Because the council does not assess the majority of requests we simply do not know if there are people waiting in the backlog who are wrongly being deprived of their liberty when they actually have capacity, or when less restrictive options are available.

“Its decision may also have had an impact on those providing care – for example, when  care providers need to liaise with the emergency services for someone they don’t have the right authorisations for.

“I now commend the council’s attempts to review its policies and tackle its backlog of requests and ask it to take on board my recommendations to ensure people are properly assessed before depriving them of their liberty.”

The Ombudsman decided to investigate this matter after investigating a complaint during which the council’s decision to focus the assessment process came to light.

In certain cases, the Ombudsman can investigate under the Local Government Act 1974, where it believes other people may have been caused an injustice. In this case the people who are likely to be affected are vulnerable, may not be aware of their rights to complain or go to court, and may not be able to complain, either in their own right or through representatives.

The Local Government and Social Care Ombudsman’s role is to remedy injustice and share learning from investigations to help improve public, and adult social care, services. It also has the power to make recommendations to improve a council’s processes for the wider public. In this case, the council should produce an action plan for how it is going to deal with all incoming DoLS requests and the backlog of unassessed requests.

It should produce the action plan within three months of the amendment to the Mental Capacity Act 2005 being finalised by Parliament, taking 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 also review the action plan should there be any further changes to the law or Government guidance.

Advocate General Tanchev: The Court of Justice should find that Spain failed to adopt the necessary laws to comply with the directive on credit agreements for consumers relating to residential immovable property

Spain should be condemned to pay a daily penalty payment of about €106,000 until it complies with the directive

The Commission has brought infringement proceedings against Spain for failing to adopt the necessary measures to transpose, by 21 March 2016, the directive on credit agreements for consumers relating to residential immovable property1. The Commission also asks the Court to impose a daily penalty payment of €105,991.60 on Spain, starting on the date of delivery of the Court’s judgment establishing the infringement, for failing to fulfil its obligation to notify measures transposing the directive.

This case provides the Court with the opportunity to give a ruling, for the first time, on Article 260(3) TFEU, introduced by the Lisbon Treaty, which allows the Commission to bring infringement proceedings before the Court on the grounds that a Member State has ‘failed to fulfil its obligations to notify measures transposing a directive adopted under a legislative procedure’ and ask the Court to impose financial penalties on that Member State at the same time.

In today’s Opinion, Advocate General Evgeni Tanchev proposes that the Court should rule that Spain has failed to fulfil its notification obligations and that accordingly, a daily financial penalty should be imposed. He also advances a broad interpretation of a Member State’s ‘failure to notify’ transposition measures under Article 260(3) TFEU, as including incomplete or incorrect transposition. 

The Advocate General notes that Spain does not contest that it failed to fulfil its obligations to adopt the necessary measures to transpose that directive into its internal law and to notify those measures to the Commission. He therefore proposes that the Court rule that the Commission’s first head of claim is well founded.

The Advocate General then examines the meaning of a Member State’s ‘failure to notify’ within the meaning of Article 260(3) TFEU. Following a literal, historical, purposive and contextual analysis of that provision, the Advocate General concludes that Article 260(3) TFEU should be interpreted as including a Member State’s failure to fulfil a ‘substantive’ obligation to transpose. It thus includes a Member State’s total failure to notify any transposition measures as well as a Member State’s notification of measures which constitute an incomplete or incorrect transposition of the directive in question.

The Advocate General proceeds to analyse the assessment of financial penalties under Article 260(3) TFEU. More particularly, the Advocate General proposes that the Commission should be entitled to use the same method to calculate the financial penalties that it proposes under similar provisions of the TFEU.  He also considers that the Court may impose both a lump sum and a penalty payment or a financial penalty not suggested by the Commission on the basis of Article 260(3) TFEU, subject to the ceiling on the amount of the financial penalty set out in that provision. In his view, that ceiling concerns only the amount of the financial penalty and does not restrict the Court’s discretion as to the type of financial penalty to be imposed.  

With regard to the present proceedings, the Advocate General considers that the imposition of a penalty payment is appropriate as a persuasive measure and that Spain’s arguments that it is disproportionate should be rejected. He also recommends that the Court use as the starting date for the duration of the infringement the reference date set out in the reasoned opinion. In view of the ceiling set out in Article 260(3) TFEU, the Advocate General proposes that the Court should impose a daily penalty payment up to the full amount specified by the Commission.
 
NOTE: The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.
 
NOTE: An action for failure to fulfil obligations directed against a Member State which has failed to comply with its obligations under European Union law may be brought by the Commission or by another Member State. If the Court of Justice finds that there has been a failure to fulfil obligations, the Member State concerned must comply with the Court’s judgment without delay.Where the Commission considers that the Member State has not complied with the judgment, it may bring a further action seeking financial penalties. However, if measures transposing a directive have not been notified to the Commission, the Court of Justice can, on a proposal from the Commission, impose penalties at the stage of the initial judgment. 
 
Unofficial document for media use, not binding on the Court of Justice. The full text of the Opinion is published on the CURIA website on the day of delivery.