A study in fairness in the field of community care law (I)

Abstract

This article, which is in two parts, considers the courts, likely approach in public law litigation to the concept of fairness in community care decision-making. In Part I, a distinction is drawn between the idea that there should be certain standards of procedural fairness in all decisionmaking processes, and on the other hand, the more general notion of equity amongst all applicants for services, given the limited budgets of social services departments. The very recent House of Lord's decision, R. v.

The second part of this article attempts to put and answer the questions that would be asked by the courts, if faced with the need tojesh out the bald legal requirement to act fairly, in a community care case. It does so with specijic regard to assessment and provision decisions, the complaints procedure (including Panel hearings) carers, rights, reassessment, and charging for services.

The article concludes with a plea to Government to consider imposing a procedural code containing bare minima for standards of fairness in this field at all the relevant stages, and to reconsider the inter-relationship of eligibility criteria and resources and the wording of the current statutory powers and duties in the jeld, It is suggested that even if there is a valid argument for leaving the question of appropriate service responses to users' needs' up to local decision-making' and not the courts' the argument for leaving the very procedures for challenging those discretionary decisions' up to the authority whose discretion is being challenged' is fundamentally flawed.

Key Words:

• community care
• resources
• legitimate expectation
• statutory duty
• judicial review - the duty to act fairly