Responding to Need: The Judicial Role in Allocating Resources
The courts in England and Wales have chosen to interpret statutes broadly in relation to the provision of social care. The courts method has been one of balancing the needs of the person in question against both the financial capabilities of the relevant local authority and the possible economic strain a ruling for the former would have on the wider community. They have looked beyond mere analysis of need, often taking a pragmatic rather than strict approach to cost considerations. This has allowed local authorities to account for their available resources when assessing a person’s needs and the manner in which to provide for those needs. This paper presents that it is possible for courts to operate within their judicial role whilst ruling that local authorities can take their resources into account. This, however, can only be done when cost is considered in the second stage (the manner in which services are provided), but not in the first stage (the assessment of needs). This is because, as will be argued, the relevant statutes do not stipulate nor intend for cost to be a consideration when assessing a person’s needs. The two stages and their adherence to the judicial role will be examined in section 3. Firstly, however, the essence of a judicial role shall be defined. This will create a framework against which to critically analyse the court’s actions and explore the legal and social consequences of their decisions.
1. INTRODUCTION
The courts in England and Wales have chosen to interpret statutes broadly in relation to the provision of social care. The court’s method has been one of balancing the needs of the person in question against both the financial capabilities of the relevant local authority and the possible economic strain a ruling for the former would have on the wider community. They have looked beyond mere analysis of need, often taking a pragmatic rather than strict approach to cost considerations. This has allowed local authorities to account for their available resources when assessing a person’s needs and the manner in which to provide for those needs.
This article presents that it is possible for courts to operate within their judicial role whilst ruling that local authorities can take their resources into account. This, however, can only be done when cost is considered in the second stage (the manner in which services are provided), but not in the first stage (the assessment of needs)[1]. This is because, as will be argued, the relevant statutes do not stipulate nor intend for cost to be a consideration when assessing a person’s needs. The two stages and their adherence to the judicial role will be examined in section 3. Firstly, however, the essence of a judicial role shall be defined. This will create a framework against which to critically analyse the court’s actions and explore the legal and social consequences of their decisions.
2. THE JUDICIAL ROLE
It can be noted that “in the UK, there is no codified constitution setting out the role and powers of the judiciary.”[2]Thus, there is persistent debate on whether the judicial role encompasses law-making. This paper recognises that where there is no precedent or clear law, courts have exercised their law-making capacity, the prime example being Donoghue v Stevenson [1932][3]. In this instance, judges are left with no other choice than to ‘create’ law, and are thus permitted to do so. However, “the limits of this law-making ability is defined by…parliamentary supremacy.”[4]To prevent the usurpation of Parliament, if there is a defined legal rule the court’s fundamental duty is “the rational adjudication of controversies in accordance with [that] law.”[5]The judicial role identified in this essay is in the vein of the declaratory theory of law, as endorsed by Allan Beever[6].
To fulfil their role appropriately in judicial review proceedings, judges must thus settle disputes in a manner which ensures the proper operation of legislation. This is done by interpreting and applying the relevant law to the case at hand (J Shaman)[7]. In order to properly discharge their judicial duty, the courts must pass a judgement that is, as noted by Blackstone, not “in accordance with their own evaluation”[8], but rather with the wording of the statute. At times, statutes may be worded in a manner which leaves room for broad interpretation and thus offers discretion to judges. To guarantee that this discretion is not abused, the courts must examine the purpose of the statute and ensure that their interpretation of the wording is in harmony with it, as ‘the meaning of the legal rules [can] be determined rationally by reference to their purpose.”[9]
When dealing with social welfare cases on the allocation of resources, the courts have not always fulfilled this role to a suitable standard. In the subsequent sections of this essay it will be presented that the judicial role has not been appropriately fulfilled when courts have allowed resources to be factored in at the initial stage of assessing a person’s needs. They have allowed outside factors to distort both the meaning and the purpose of the relevant legislation. Although the broadening of an Act’s boundaries may allow it to stay pertinent and applicable in different cases and different times, when weighed against the possible threat it harbours against parliamentary supremacy it can be argued to be outside of the judicial role. This is the main critical focus of this essay.
3. THE CASE LAW
R (KM) v Cambridgeshire[10]identified two stages of care in which courts have arguably permitted resources to be taken into account. The first stage is in the assessment of a person’s needs and the subsequent setting of eligibility criteria by local authorities. The second stage is the provision of needs, in which service providers decide how to meet the needs that they are under a duty to. The stages shall be examined in turn.
i. The assessment of needs
It is presented that in allowing cost to be factored into the assessment of needs, the courts run the risk of permitting local authorities to redefine needs. This is outside the ambit of the judicial role identified in section 2.
The central case concerning resources and the assessment of needs is Regina v Gloucestershire County Council and Another, Ex parte Barry[11]. The court’s response to the resources/needs tension in Barry[12]was a pragmatic one of balancing the needs of the individual against the resources available to the local authority. The ruling, by a slim majority of 3 to 2, permitted local authorities to take their resources into account when assessing a person’s needs under section 2(1) of the Chronically Sick and Disabled Persons Act 1970[13]. In favour of the ruling, Lord Nicholls of Birkenhead contended that “needs for services cannot sensiblybe assessed without having some regard to the cost of providing them.”[14]Lord Clyde followed a similarly logical line of reasoning by arguing that “if my resources are limited I have to need the thing very much before I am satisfied that it is necessary to purchase it.”[15]Both judges employed a practical rationale to their decision, looking to common sense to determine whether cost should be considered. Whilst their rationalisation process may be a characteristic that assisted them in rising to the position of judge, it hindered them from properly fulfilling the judicial role assigned to them. Both Lord Nicholls and Lord Clyde, in their rationality, distorted the purpose of the statute.
When considering Parliament’s intention, Lord Nicholls argued that there is “no basis for reading into the section an implication that in assessing the needs of a disabled persons…cost it to be ignored.”[16]He held that “Parliament [did not intend] that to be the position.”[17]This attempt at a purposive interpretation is arguably incorrect. If cost is notignored at the initial assessment stage, Lord Nicholls’s argument has grave implications.
Local authorities here are allowed to decide which needs are substantive enough for them to have a duty to meet. By the ruling, they are also allowed to take into account their available resources when deciding what a substantive need is. This means that that they are able to take their resources into account when determining need, permitting them to indirectly define need relative to cost. This is a vast misinterpretation of the statute, and it greatly relaxes the obligation set to local authorities by Parliament. As contended by Lord Lloyd of Berwick, “if a local authority could arbitrarily reduce the assessed need by raising eligibility criteria, the duty imposed by Parliament would…be collapsed into a power.”[18]Thus, by voting in favour of the allocation of resources, the court excessively empowers service providers to redefine need as they wish.
The purpose of the Act was not to provide local authorities a discretion to define need around the economic climate, as this would risk turning it into a statute that bowed to economic pressure. The Act imposed a strict duty on local authorities to “inform themselves…of the need for the making by the authority of arrangements under that section for such persons.”[19]In KM v Cambridgeshire[20], Lord Wilson supported this paper’s argument that “in enacting section 2 of the 1970 Act Parliament’s purpose was to elevate the functions of local authorities in relation to disabled people.”[21]It follows that in creating the 1970s Act, Parliament did not intend to confer upon local authorities the power to redefine need according to their available resources. If it did, local authorities could easily discharge their obligations by setting a very high threshold for need. This counter-intuitive detail was an oversight in both Lloyd Nicholls and Lord Clyde’s judgements. It is retrospectively evident by the passing of the Care Act 2014 and its supporting documents, which prescribe the eligibility criteria in legislative form[22]. Although the eligibility framework affords local authorities discretion in deciding which band of needs must be met, the Department of Health’s Fair Access to Care Services Guidance[23]clearly “distinguish between the needs that the social worker assessing the individual identifies — presenting needs — and the needs that the authority is prepared to meet — eligible needs.”[24]Thus, eligible needs are not to be regarded as synonymous with the blanket term of needs.
The statutes, as observed, are already worded ‘in terms of substantial need’, leaving little room for “judicial creativity”[25]. Taking the plain definition of need from the Oxford English Dictionary, the Act can be seen to oblige local authorities to make arrangements for something that is “required because it is essential or very important rather than just desirable.”[26]This is in harmony with Lord Lloyd’s reading of need as “the lack of what is essential for the ordinary business of living.”[27]Need is not synonymous with want, therefore it does not vary according to available resources.
Furthermore, if the statutes are said to confer a duty on local authorities, the need can be seen to grant a corresponding right to the individual. Article 19 of the Convention on the Rights of Persons with Disabilities (CRPD) helps to define this right as one to “live in the community”[28]and obliges states to “take effective and appropriate measures to facilitate enjoyment by persons with disabilities of this right and their full inclusion and participation in the community.”[29]Thus, when the definition of need in both national andinternational legislation is analysed, need can be seen as independent from any factors other than the individual’s state of being. It is separate from any cost considerations.
To allow cost to be factored in makes “need…a relative concept”[30]. This permits geographical discrepancies, “the unpalatable result [being] that exactly the same level of presenting need will be eligible for services in one authority but not in another.”[31]This point of contention was raised by Lloyd Berwick and will be built upon here. “If the standards and expectations for measuring the needs of the disabled in Bermondsey should differ from those in Belgrave Square”[32], many people in need may fall through the cracks due to their place of residence; a far cry from the intention Parliament held in enacting the statute. Tolerating inequality can never be argued as being the intention of any welfare state. It follows that by considering factors other than legal rules and principles, the courts have not fulfilled an appropriately judicial role. There are both legal and social consequences of this violation of the declaratory theory of law.
The courts here run the risk of “a clear usurpation of the powers of the legislature.”[33]Whilst the court used pragmatism, which is arguably a commendable trait, Blackstone argues that a judge must pass decisions “not according to his own private judgement, but according to the known laws and customs of the land.”[34]The judges here have used their private judgement, acting ultra vires and granting local authorities a power that the statutes did not. This may have been an unforeseen repercussion of the ruling, yet it possess very real ramifications for the legal system. Were judges able to legislate in a manner that abrogates Parliamentary Acts, the supremacy of Parliament would come into question.
The social consequence of the ruling in Barry[35]also flows from the power it grants to local authorities. In allowing cost to dictate need, there is a possibility that England and Wales will be hindered from fulfilling their duties as welfare states. If the protection offered to people in need is dependant on resources, that protection will inevitably vary according to the economic climate. This is far from “the core idea of a welfare state”[36]as pioneered by Andersen, as it does not guarantee people with needs the rights that they are arguably entitled to. These are the are severe ramifications of the ruling in Barry[37]. These repercussions all stem from the court’s failure to act within the role assigned to it.
Further support that the court did not correctly fulfil its judicial role in its reaction to the resources/needs tension can be found in subsequent cases, most notably in Cambridgeshire[38]. Whilst the tension in Barry[39]was not relevant to the facts of Cambridgeshire[40], and thus the judges held that is was “important to say as little as possible — and certainly nothing controversial — about the decision”[41], they did clarify the law. The court maintained that resources were not to be taken into account in the first stage (assessment of needs) but could be taken into account in the second stage (provision of services). As has been presented, taking resources into account in the first stage prevents courts from fulfilling their judicial role appropriately. In the subsequent section it will be argued that the courts may allow local authorities to take their resources into account in the second stage whilst acting within their judicial capacity.
ii. The provision of services
In N v ACCG and others[42],Re MN (An Adult)[43],and R (on the application of McDonald) v Royal Borough of Kensington and Chelsea[44], the issue for the courts was not whether the local authorities could take their resources into account in the initial assessment stage. The cases instead considered the manner in which services were to be provided and whether local authorities had discretion at this stage. The law arguably operates differently here and the criticism from Barry does not extend to these cases.
InN v ACCG[45]and Re MN (An Adult)[46],the court held that they could not force an authority to fund a care plan which it did not want to fund. Similarly, in McDonald[47]the ruling permitted local authorities to choose to provide a cheaper service to meet a person’s needs. Whilst both decisions involved considerations of a service provider’s available resources, they did not run the same risks as those outlined above in Barry. The ruling in these two cases did not relax the duties set to local authorities by Parliament. This is highlighted in McDonald[48]by Lady Hale’s acknowledgement that ”the Chronically Sick and Disabled Persons Act 1970 was intended to create an individual right to services if its criteria were met.”[49] The rulings in the cases therefore merely offered service providers discretion as to howto carry out those duties and whether to “meet…need[s] in the more economical manner.”[50]
Although a parallel may be drawn between the arguable re-definition of need in Barry and the re-categorisation of need in McDonald[51], the differences outweigh the similarities. In McDonald[52], there was merely a clarification of the appellant’s needs, given a careful examination of her capabilities and any risks that may be posed. Both the courts and the relevant local authority viewed the appellant’s needs as “precisely the same as they had been when they were originally assessed.”[53]Thus, by reducing the provision of services, they were not re-defining whatwas required from the appellant, but rather what was required from the local authority. This is reasonably in agreement with the statute. The local authority discharged their obligation of assessing a person’s needs, independent of their available resources. They met the appellant’s needs, although in a manner of their choosing.
This may be the critical point of contention. It is conceivable that many would argue that local authorities should meet needs in the manner of a person’s choosing. However, this is where the misplaced pragmatism in Barry[54]plays a seminal part. The duty owed to people with needs as stipulated by the statutes has already been satisfied. To ask local authorities to go beyond this duty and provide whichever service a person desires is to impose on them an unauthorised obligation that, in addition to not being legally binding, may come at a cost. This cost is highlighted in McDonald[55]in the context of an Article 8 discussion, where Lord Brown held that a factoring of costs into the provision of services is justified “on the grounds that it is necessary for the economic wellbeing of the respondents and the interests of their other service-users and is a proportionate response to the appellant’s needs.”[56]
In assessing the needs of the appellant, the local authority only considered her individual state of being. This, as has been presented above, is the intention of Parliament. It can further be argued that Parliament intended for all those with eligible needs to have their needs met. It is noted that “the perspective of the court…[is] a narrow focus on the welfare of the individual…the perspective of the public authority [is] necessarily different and much wider, having to have regard to the interests of a very wide group of service users who [are], in the nature of things, competing with each other for the allocation of often scarce resources.”[57]This line of reasoning not only offers understanding to the decisions of service providers, but also demonstrates that it would clearly be impossible, given available resources, for local authorities to be under a duty to meet needs in the individual manner that each person desired. The Act places an onus to provide what is required, not what is desired. To oblige service providers to supply the latter would at best be economically unattainable and at worst lead to inequality within the provision of services. Consequently, the ruling in McDonald[58]can be seen to be in adherence with the Act, subsequently demonstrating the court’s compliance to the judicial role assigned to them.
The legality of the aforementioned demand for local authorities to provide services in the manner of an individual’s choosing was also thoroughly examined in both N v ACcG[59]and Re MN (An Adult)[60]. The courts approach to the submitted tension was highly juridical, involving an acute examination of the relevant statutes, jurisdictions and the role of the Court of Protection. Most pertinent was the court’s finding that to demand a local authority to fund a service they did not want to would “potentially be using a best interests decisions as a means of putting pressure upon the [local authority] to allocate their resources in a particular way.”[61]This pressure was held to be “going against the first principle now enshrined in Aintree” and thus must not be exercised as the Court of Protection “cannot usurp their statutory functions.”[62]Sir James Munby went on to give a detailed commentary on the judicial role assigned to the Court of Protection:
“First, it is not a proper function of the Court of Protection…to embark upon a factual inquiry into some abstract issue the answer to which cannot affect the outcome of the proceedings before it. Secondly, it is not a proper function of the Court of Protection…to embark upon a factual inquiry designed to create a platform or springboard for possible future proceedings in the Administrative Court. Thirdly, such an exercise runs the risk of confusing the very different perspectives and principles which govern the exercise by the Court of Protection of its functions and those which govern the exercise by the public authority of its functions… Fourthly, such an exercise runs the risk of exposing the public authority to impermissible pressure.”[63]
His account not only clarifies the role courts have in making a decision on whether local authorities must provide services in a particular fashion. It also justifies the decisions in the case spoken of, in N v ACGG[64]and, to an extent, in McDonald[65]. It follows that in coming to an acceptable decision on a dispute, courts will be greatly assisted if they are to consider the role assigned to them. This, as has been presented, is done by adhering to the declaratory theory of law.
4. Reform
As shown, the court’s reaction to the resources/needs tension can often be in accordance with Parliament’s wishes. However, there is still room for reform.
Concerning the matter of the judicial role, this paper agrees with the Law Commission’s recommendation of an “amendment of the Supreme Court 1981 [Act] so as to confirm statutorily the powers of the High Court.”[66]By clarifying the role that judges should play and outlining their authority, it will make it easier for courts to come to a decision without the risk of acting ultra vires. This will also ensure the proper functioning of legislation and attainment of Parliament’s intention.
When considering the resources/needs tension, there is also room for clarity. Whilst Parliament’s intention can be inferred by examining the purpose of statutes, it is advisable that there be statutory provisions affirming that the process of assessing a person’s needs is “needs-led rather than services led.”[67]This is done by ensuring that “the focus of the assessment duty should be an assessment of a person’s care and support needs…”[68]An approach of this kind, if required by legislation, will leave little room for debates such as the one stemming from Barry[69]to take place. It is interesting to note, however, that the discretion offered to judges by the relatively broad wording of statutes is often seen as valuable in allowing the law to be “the application of old ideas to new circumstances.”[70]That being said, a more stringent wording may still grant flexibility whilst not posing the risks of courts acting in breach of Parliament’s intention. This view is supported by the plethora of Acts which, having repealed previous legislation, have been worded more accurately yet still allow application to a wide variety of cases, the most pertinent one being the Care Act 2014.
These reforms, if implemented, will be of much service to all parties. Service providers will know exactly what is expected of them, people with needs will be sure of what they are entitled to, and courts will be familiar with how to respond to judicial review disputes in understanding their judicial role. This may all promote the proper functioning of the legal system.
5. Conclusion
In conclusion, the courts have been varied in their response to the resources/needs tension. However, as has been seen, the only way a court can fulfil an appropriately judicial role whilst in the process of resolving this tension is by following with the wording of the statute and acting on its purpose. Legislation is enacted for a reason; to transgress this and decide a case based on individual conceptions of how a case should be resolved would be outside the ambit of the judicial role and against the wish of Parliament.
[1]R (KM) v Cambridgeshire County Council [2012] UKSC 23, [2012] 3 All ER 1218, (2012) 126 BMLR 186, [2012] BLGR 913, [2012] WLR(D) 171, [2012] PTSR 1189, (2012) 15 CCL Rep 374, [2012] MHLO 57
[2]Jo Murkens and Roger Masterman, ‘The New Constitutional Role of the Judiciary’ (2014) LSE Law: Policy Briefing Paper №2, 2 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2482312> accessed 12 January 2018
[3][1932] UKHL 100, [1932] AC 562, [1932] SC (HL) 31, [1932] SLT 137, [1932] WN 139, All ER Rep 1
[4]‘The Declaratory Theory of Law’ (UK Essays, November 2013) <www.ukessays.com/services/example-essays/law/the-declaratory-theory-of-law.php> accessed 12 January 2018
[5]William H Hastie, ‘Judicial Role and Judicial Image’ [1973] 121:5 University of Pennsylvania Law Review 947, 951 <http://scholarship.law.upenn.edu/penn_law_review/vol121/iss5/1> accessed 12 January 2018
[6]Allan Beever, ‘The Declaratory Theory of Law’ [2013] 33:3 OJLS 421 <https://doi.org/10.1093/ojls/gqt007> accessed 12 January 2018
[7]Jeffrey M Shaman and Steven Lubet and James J Alfini, Judicial Conduct and Ethics(Lexis Law Pub 1990)
[8]Hastie (n 5) 947.
[9]Hugh Collins, ‘Law as Politics: Progressive American Perspectives’ in James Penner and David Schiff and Richard Nobles (eds), Introduction to Jurisprudence and Legal Theory: Commentary and Materials(Oxford: Oxford University Press 2005) 284
[10]Cambridgeshire (n 1).
[11][1997] UKHL 58, (1997–1998) 1 CCL Rep 40, (1997) 9 Admin LR 209, [1997] 2 All ER 1, (1997) 36 BMLR 92, [1997] WLR 459, [1997] AC 584
[12]ibid.
[13]Chronically Sick and Disabled Persons Act 1970, s 2(1)
[14]Barry (n 11) (Lord Nicholls).
[15]ibid (Lord Clyde).
[16]ibid (Lord Nicholls).
[17]ibid.
[18]ibid (Lord Lloyd).
[19]Chronically Sick and Disabled Persons Act 1970, s 1(1)
[20]Cambridgeshire (n 1).
[21]ibid [12] (Lord Wilson).
[22]Care Act 2014 s 13
[23]Department of Health, Fair Access to Care Services (FACS), (2002)
[24]Helen Carr, ‘Rational Men and Difficult Women — R (On the Application of McDonald) v. Royal Borough of Kensington and Chelsea [2011] UKSC 33’ [2012] 34:2 Journal of Social Welfare and Family Law 219, 223 <https://doi.org/10.1080/09649069.2012.718536> accessed 12 January 2018
[25]Jack G Day, ‘Why Judges Must Make Law’ [1976] 26:3 Case Western Reserve Law Review 563, 574 < http://scholarlycommons.law.case.edu/caselrev/vol26/iss3/3> accessed 12 January 2018
[26]‘Need’ (Oxford English Dictionary) <https://en.oxforddictionaries.com/definition/need> accessed 12 January 2018
[27]Barry (n 11) (Lord Lloyd).
[28]Convention on the Rights of Persons with Disabilities [2006], Article 19
[29]ibid.
[30]Barry (n 11) (Lord Clyde).
[31]Cambridgeshire (n 1) [47] (Lady Hale).
[32]Barry (n 11) (Lord Berwick).
[33]Murkens and Masterman(n 2) 3.
[34]Beever (n 6).
[35]Barry (n 11).
[36]Gosta Esping-Andersen, The Three Worlds of Welfare Capitalism(Cambridge: Polity 1990) 21
[37]Barry (n 11).
[38]Cambridgeshire (n 1).
[39]Barry (n 11).
[40]Cambridgeshire (n 1).
[41]ibid [7] (Lord Wilson).
[42][2017] UKSC 22, (2017) 155 BMLR 1, 20 CCL Rep 133, [2017] 2 WLR 1011, [2017] WLR(D) 202, [2017] AC 549, [2017] All ER 719, [2017] COPLR 200
[43][2015] EWCA Civ 411, [2015] 3 WLR 1585, [2016] Fam 87, [2015] Med LR 287, [2015] COPLR 505
[44][2011] UKSC 33, [2011] PTSR 1266, (2011) 121 BMLR 164, [2011] 4 All ER 881, (2011) 14 CCL Rep 341
[45]N v ACCG (n 42).
[46]Re MN (n 43).
[47]McDonald (n 44).
[48]ibid.
[49]ibid [66] (Lady Hale).
[50]Ibid [2] (Lord Brown).
[51]McDonald (n 44).
[52]ibid.
[53]ibid [39] (Lord Kerr).
[54]Barry (n 11).
[55]McDonald (n 44).
[56]ibid [19] (Lord Brown).
[57]Re MN (n 43) [46] (Sir James Munby)
[58]McDonald (n 44).
[59]N v ACCG (n 42).
[60]Re MN (n 43).
[61]ibid [53] (Sir James Munby).
[62]ibid [68] (Sir James Munby).
[63]ibid [82] (Sir James Munby).
[64]N v ACCG (n 42).
[65]McDonald (n 44).
[66]Law Commission, Administrative Law: Judicial Review and Statutory Appeals(Law Com No 226, 1994) para 12.9
[67]Law Commission, Adult Social Care (Law Com No 326, 2011) para 5.20
[68]ibid [para 5.54].
[69]Barry (n 11).
[70]Beever (n 6).