The detached relationship between legal accountability and social justice

However, while its reach has expanded in recent decades, legal accountability con­trols in the UK to remain focused on ensuring that public authorities conform to a quite specific range of normative standards.

Public authorities can thus be held legally accountable for failing to respect the civil and political rights of individuals, or for subjecting them to irrational, unlawful or procedurally unsound decision-making, or for otherwise interfering unjustly with their day-to-day autonomous existence as equal subjects before the law. However, it is usually not possible to hold public authorities legally accountable for failing to provide individuals with adequate levels of social sup­port, or for neglecting their socio-economic rights, or for otherwise failing to act in a manner that is compatible with the requirements of social justice. The state in general is expected to distribute resources in a manner that is broadly fair and just: however, administrative law, human rights law and other court- and tribunal-centred legal accountability mechanisms confine themselves to a much narrower normative remit.

This is not to say that the various forms of legal accountability do not exert any influence on how the state engages with issues of social justice. Law plays an important role in regulating the m anner in which public authorities allocate public resources.

Furthermore, resource allocation decisions by public authorities which fail to respect legitimate expectations, do not take into account relevant considerations, fail to follow appropriate procedure, or otherwise breach the formal requirements of the rule of law, can be subject to judicial review. Thus, for example, in R v North and East Devon Health Authority ex p Coughlan,^[1413] the Court of Appeal held that a health authority had failed to follow its own guidance and to respect the appli­cant’s substantive legitimate expectation that she would continue to receive NHS funded long-term health care. In R (W) v Birmingham City Council,^[1414] a decision by the respondent local authority that it could only afford to fund social care which met critical needs was held to be unlawful because of deficiencies in the process by which this decision was reached: Birmingham had failed to comply with its obligations under the disability equality duty set out in s 49A of the Disability Discrimination Act 1996.^[1415]

However, comparatively little control is exercised over the s ubstance of resource allocation decisions taken by public authorities.

This distinction between how legal accountability mechanisms regulate the manner and the substance of resource allocation decisions is a matter of degree rather than a hard and fast rule. The line between procedure and substance is often blurred, and close scrutiny of how a public authority reaches a deci­sion may at times cross over into an analysis of its substance. For example, in both the Coughlan and R (W) cases referred to above, the courts assessed the extent to which the procedural defects in question had ‘tainted’ the substance of the resource allocation decisions at issue. However, the manner/substance distinction is still important, as illustrated by two recent decisions of the UK Supreme Court.

In R (McDonald) v Royal Borough of Kensington and Chelsea,^[1417] the appellant suf­fered from severe mobility problems and could only access the toilet at night with the help of a carer provided by the respondent local authority. The respondent reassessed the care needs of the appellant and concluded that they could be satis­fied by a reduced package of services which required her to use incontinence pads and/or absorbent sheets at night instead of being assisted by the night carer. The appellant alleged that the local authority had not adhered to the proper procedure as set out by primary and secondary legislation in reaching this decision: she also claimed, inter alia, that the decision violated her right to a private life under art 8 of the European Convention on Human Rights (ECHR).

The Supreme Court subjected the manner in which the local authority had arrived at this decision to close scrutiny. It concluded that it had followed the correct procedure, consulted with the appellant and generally adhered to the rel­evant statutory duties which regulated how it should arrive at such a decision. It then held that art 8 ECHR was not engaged, on the basis that the state enjoyed considerable discretion in allocating public resources and that an interference with Convention rights would usually only be established to exist in such cir­cumstances if the appellant had been subject to treatment sufficiently inhuman and degrading so to engage art 3 ECHR (see below for further discussion of this point.) Baroness Hale dissented, on the basis that the local authority had acted irrationally in how they had classified the appellant’s needs: in Baroness Hale's view, the authority had failed to recognize that she had a need to access toilet facilities in a dignified and humane manner. However, the majority strongly disa­greed with her analysis: in their view, a conclusion of irrationality could not be sustained on the evidence.^[1418]

In McDonald, the Supreme Court thus closely scrutinized the manner in which the local authority had adhered to the relevant statutory guidelines in reaching its decision.^[1419] However, it then applied a very light standard of review to the substance of the decision, ie. the determination that the appellant’s needs could legitimately be met by the provision of incontinence pads. It concluded that no interference had taken place with her art 8 right to a private life: furthermore, it chose not to subject the local authority’s definition of the appellant’s needs to close scrutiny (with the exception of Baroness Hale), or to assess in detail whether it had given sufficient weight to Ms McDonald’s interests in reaching its decision.

A similar approach was adopted by the Supreme Court in R (KM) v Cambridgeshire County Council."¹⁰ Here, a severely disabled man challenged the amount of a personal care budget that had been provided to him by the respond­ent local authority.

Both McDonald and KM thus demonstrate that the courts are prepared to closely scrutinize how public authorities comply with procedural requirements in situations where their resource allocation decisions have a grave impact on an individual's wellbeing. However, the situation is different when it comes to the substance of such decisions, in respect of which public authorities enjoy wide dis­cretion, Convention rights have little, if any, purchase, and courts will only strike down a decision if it meets the Wednesbury standard of irrationality. In general, legal accountability mechanisms play a very limited role when it comes to resource allocation decisions that raise substantive issues of social justice. By and large, their role is confined to ensuring conformity with procedural requirements, in line with the overall ‘corrective' orientation of the legal process in the UK.

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