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

Abstract

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. M...