Duties and Discretions in legislation

Statutory provisions in this field break down into the following types of function:

  1. Statutory powers/pure discretions.

Such provisions give rise to a duty at least to consider exercising the discretion in a particular case, taking account of all relevant considerations etc. and otherwise acting rationally, within the wording of the power; and fairly, given the particular circumstances.

The tendency of the courts has been to allow resources to be taken into consideration by the decision-maker, once the function in question has been characterised as a true discretion. Where a mere power to provide is involved, it is clear that resources will be regarded by the courts as relevant to the setting of the eligibility criteria of the authority in question for what counts as a need for a community care service, and what sort of situation counts as necessitating a service. Resources might possibly be relevant to the assessment of what level of services should be provided (as a general principle), so long as professional opinion supports the adequacy of that level in the particular client~s case; and also possibly relevant, with regard to whether a promised service should be continued, if resources run out.

Typical discretions in social care are: setting criteria for need and necessity, under s2 CSDPA; the power to provide laundry services for those assessed as needing home help under schedule 8 of the National Health Service Act 1977; the power to promote the welfare of the elderly under s45 Health Services and Public Health Act 1968 and the power to provide s21 National Assistance Act accommodation for those who are not ordinarily resident in the area (see LAC 93/10).

Discretions are statutory functions which may be exercised, but which do not have to be, so far as the law is concerned. Thus the discretion to provide a grant means that any applicant has the right to be considered, and even considered as a possible exception to any existing policy, but has no right to an actual grant which he or she could ever enforce through the public or private law courts.

Since resources can be a lawful, relevant consideration to bear in mind, it can be lawful to decide not to spend the money.

The Human Rights Act has made it harder for councils to treat budget considerations as determinative, however, because it requires proportionate decision making in respect of people~s human rights, and sometimes requires reasonable, positive steps to be taken (involving expenditure, typically) to protect or further people~s human rights. We think that where budget considerations are already a lawful consideration in UK law, the Human Rights Act would still permit a balancing of the pros and cons of spending or not spending money, with regard to a human rights issue affecting local people, and that it could still be lawful to decide not to spend the money, if that was proportionate. But the fact that one day the issue facing the public authority may be so severe in human rights terms as to make refusing to take steps, disproportionate, authorities have to appreciate that they now need to record their evaluation of the pros and cons, and not just make a knee-jerk reaction based on the figure at the bottom of the spreadsheet.

In law, a refusal even to consider exercising a discretion at all would be challengeable in the courts, as a fetter of a discretion conferred by Parliament. An example would be a local authority which had set its face against direct payments or domiciliary charges once and for all, without ever reconsidering the policy or allowing individuals to put their case forward as to why they should be treated as an exception to the general policy. On the health side, an example would be a rationing policy along the lines of ~No kidney transplants for people over 70~ – this is a rule, and not a policy, and it would be unlawful, not just because of its content, but because of its rigidity. Flexibility is an essential part of administration in public authorities, and the courts will sometimes require evidence as to whether any exceptions have ever been made, finding against an authority on grounds of fettering, if the answer is No.

A refusal to exercise a discretion in favour of someone who has been properly considered, is only challengeable in court on the basis that the discretion was exercised:

irrationally (this means in blatant defiance of logic or common sense) – such as allowing only men to have direct payments;

without taking into account relevant considerations, or having taken irrelevant considerations into account (an example is the Bristol City Council ex p Penfold case, in which the s47 assessment had been applied on the assumption that resources and staffing difficulties were relevant to the decision whether to assess someone);

incompatibly with Convention rights (human rights) – for instance, without proportionate respect for someone~s religious beliefs – say, restricting the offer of a meals service to non-Kosher food for an observant Jewish client;

otherwise unlawfully (ie outside the wording of the relevant statute) – an example would be refusing even to assess someone for services, on the grounds that they were not ~ordinarily resident~ in the area, when some of the community care statutes and guidance emphasise that such people are still entitled to be considered;

in disregard of reasonable standards of procedural fairness in relation to the significance of the decision for the person concerned (for instance, deciding on a domiciliary care package charge, without giving the person a chance to explain to the charging review board why s/he should not be regarded as having the means to pay, given that s/he had derived no benefit from a debt that had been incurred in his/her name by the service user~s previous appointee)


  1. Statutory duties,on the other hand, break down into several different types!
  2. i) General (or ~target~ ornon-justiciableduties) (eg. s17 Children Act and perhaps some parts of the NHSA sched 8)

Such functions tend to be regarded as unenforceable in private law proceedings, either for ~public policy~ reasons, or because they are worded in a wholly vague way or involve very difficult balancing questions such as the allocation of scarce resources. Whilst not regarded as completely unenforceable in public law (a challenge could be made to a decision to completely ignore a target duty) the judiciary also fights shy of involvement or second-guessing of sensitive questions. Where target duties are involved, the courts have tended to hold that resources are lawfully relevant to the question of planning the extent of provision across the community. The most recent example of a court identifying a duty as a mere target duty is s17 Children Act in the A v Lambeth London Borough Council case. The Authority had the discretion to treat the need it had identified as capable of being met through its housing department, not its social services department.

  1. ii) Duties which are owed to specific individuals and which are enforceable(in public law) but which turn on an The evaluation may have to be
  2. a)a professional, purely clinical view (is someone ~mentally ill~ or not?)
  3. b) an objective concrete question (~pregnant~ = in priority need for housing),
  4. c) a subjective question for whoever is given the job of deciding in the authority (eg identifying people who ~appear~ to be someone who ~may~ be in need of a community care service)
  5. d) one whichmaybe informed by the authority~s budget via criteria (whether someone is ~in need~ of a service)

Generally speaking, where the evaluation is an objective question of fact, or a clinical or purely professional assessment, resources are irrelevant. But in other situations, which we shall call ~administrative~, the authority is allowed to bear in mind its resources difficulties, when arriving at its administrative conclusion. A budget crisis would not affect a doctor~s or a care manager~s professional diagnosis of illness or of ~need~, but it might well affect how the responsible public authority chooses to categorise the client in relation to priority.

iii) Duties which are specific and enforceable in private law – for damages for harm caused by their breach. The main candidates for enforceability in private law are the actual provision duties triggered by favourable evaluations under s21 National Assistance Acts2 Chronically Sick and Disabled Persons Act, and s117 Mental Health Act; and the duty to make a formal provision decision in respect of someone who has been assessed. However, the courts would appear to be determined to find that welfare related statutory duties, even the ones regarding provision after assessment, are not ~actionable~ – ie do not found a claim for damages in private law. This has had the unfortunate incidental outcome for service users that it is not possible to enforce these public law provision functions in private law in the local County Court, by way of injunction or declaration, even after a favourable assessment. But that is not a serious problem for claimants now, given the improvements in public law procedure and the relative ease with which financial legal assistance can still be obtained for judicial review proceedings.


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