The legal relevance of resources - or a lack of resources - in community care

Abstract

This article considers the likely approach of the courts to community care litigation in which the availability of resources is an issue. It explores the way in which the forum chosen for the dispute - private or public law - might inform this approach, and examines existing case law from the general welfare law field which has largely skirted around the issue of rationing and resource allocation. The article focuses on the difference between duty and discretion, particularly in the context of the Chronically Sick and Disabled Persons Act 1970, and the potential significance of the distinction, so far as an authority's lack of resources is concerned. The writer concludes, first, that a shortage of resources is a factor which it is lawful to take into account in the exercise of most welfare functions under this Act and other statutory community care provisions; second, that a lack of funds might constitute a defence to a public or private law allegation of breach of statutory duty in this field. Most controversially, perhaps, it is contended that s.2 of the 1970 Act does not give rise to an automatic, nor an absolute, duty to meet needs within the Act, even after a local authority has accepted that an individual for whom it is responsible has needs coming within the authority's definition of what constitutes ‘need’.

Key Words:

• National Health Service and Community Care Act 1990
• community care
• provision/withdrawal of services
• judicial review - legitimate expectation
• Chronically Sick and Disabled Persons Act 1970.