The case for change

Resource allocation decisions can have a profound impact on individual lives, as graphically illustrated by the facts of McDonald, FL and other cases discussed previ­ously. In particular, they can result in individuals being deprived of forms of social support which are essential for the maintenance of a dignified and autonomous exist­ence.

The limited reach of legal accountability in this context means that public authorities can make life-transforming decisions without having to worry much about the ‘judge over the shoulder', except when it comes to questions of compli­ance with procedure. It also means that public authorities in general are under no legal obligation to give due weight to human dignity or individual autonomy when it comes to the substance of resource allocation decisions, except in those exceptional circumstances when Convention rights come into play. There is no UK equivalent of the concept of the Sozialstaat in German public law, or the principle of social solidarity in French law, which helps to give a normative steer to administrative decision-making in those states.^[1466] Anthony Lester once referred to the ‘ethical aimlessness' that characterized the common law before the emergence of modern rule of law and human rights standards:^[1467] a similar ‘ethical aimlessness' still persists in English public law when it comes to the substance of resource allo­cation decisions.

This has consequences. For example, it means that public authorities can in certain circumstances deny all but the most minimal forms of social support to particular groups of people in need, as is done currently as part of the ‘deliber­ate policy of destitution'^[1468] through which individuals whose claims for asylum have been definitively rejected are currently ‘encouraged' to leave the UK by being forced into a state of extreme poverty,^[1469] without having to worry over-much about judicial scrutiny.^[1470] It also creates a situation where procedural errors may expose a resource allocation to legal challenge, while a disregard of individual needs when it comes to the substance of the decision will rarely lead to judicial intervention.

Furthermore, it could be argued that the limited role of legal accountability in this context is difficult to reconcile with the internal logic that has driven the expansion of legal accountability over the last few decades. As discussed above, the legal process is increasingly expected to play a key role in protecting indi­vidual rights and preventing abuse of state power. However, when it comes to protecting access to the basic socio-economic necessities that make it possible to enjoy a dignified and autonomous existence, the role of legal accountabil­ity is largely confined to ensuring that public authorities follow proper proce­dure: public law ceases to play an active role in protecting individual dignity in this context, and imposes few if any controls on the substance of public author­ity decision-making.

In this respect, it is instructive to look again at the approach adopted by the Supreme Court in McDonald and KM. In both cases, the court subjected the pro­cess by which the respondent local authorities determined the social care needs of the appellants to close scrutiny. However, it adopted a hands-off approach to the question as to whether these decisions were rational and adequately respectful of human dignity. In other words, the approach applied by the court was protective of the individuals’ entitlement to fair process, but not of their entitlement to a dig­nified existence. This represents a triumph of form over substance: it places techni­cal issues of procedural compliance at the heart of the legal analysis, and relegates the substantive core of the dispute at issue to the margins.

Furthermore, when the court in McDonald, KM and FL scrutinized the ration­ality of the resource allocation decisions at issue, it effectively concluded that the respondent local authorities had acted rationally because the decisions they reached were in accordance with established administrative practice.^[1471] This approach comes close to hollowing out rationality review: the reasonableness of a public authority’s decision becomes assessed by how it has adhered to its own internal procedures.

It should be emphasised that the argument being made here is not that cases like McDonald, KM and FL were necessarily wrongly decided. The problem is that the local authorities in these cases are winning almost by default: the reasoning underlying the substance of their resource allocation decisions is not being subject to meaningful review, even though fundamental human interests are at stake.

The current state of the law therefore fails to provide much protection to indi­viduals whose dignity and autonomy are put at risk by resource allocation decisions by public authorities. This would perhaps not matter so much if the political pro­cess enabled public authorities to be adequately held to account for the substance of their resource distribution decisions. However, the political accountability of the executive to the legislature, and the democratic accountability of the legislature to the electorate, has limited reach in this context. Central, devolved and local gov­ernments can of course be held democratically accountable via the ballot box for their socio-economic decision-making and how it affects the population at large. However, the daily operation of the welfare state is often a complex and impen­etrable process, and there is not much political capital to be gained by elected poli­ticians and other opinion-formers by probing deeply into how the system treats marginalized individuals and groups.^[1472]

As a consequence, decisions of public authorities to grant or withhold social support often take place in something resembling an accountability-free vacuum. Furthermore, discrimination against particular minority groups and neglect of their specific needs remains a persistent problem, which is accentuated by the real­ity that those in most need of state support are often those last able to access the political system and press for change. Often, the most destitute include groups such as asylum-seekers, who have no political participation rights at all.

In general, the limited role played by legal accountability mechanisms in reviewing the substance of resource allocation decisions that touch on funda­mental human interest is difficult to defend. The minimal extent to which legal accountability mechanisms play a role in controlling the substance of resource allocation decisions provides little protection for key human interests, which political and democratic accountability mechanisms also struggle to vindicate. This helps to create an accountability ‘grey zone', where public authorities enjoy almost unfettered discretion when it comes to the substance of resource allocation decisions.^[1473]

A good case can therefore be made that courts should play a greater role in hold­ing public authorities to account for how the substance of their resource allocation decisions impacts upon the lives of individuals, especially when such decisions expose individuals to a risk of destitution, deprive them of support essential to maintain a dignified existence, or otherwise have a grave impact on their wellbe­ing. At present, the reach of legal accountability is unduly restrictive: the desire to keep law free of any entanglement with social justice has limited its ability to protect individuals against the abuse of state power.

G.