No. It is even thought now that claims for failure to do something have become a realistic possibility – the most obvious examples are failing to act in s47 National Assistance Act ‘insanitariness’ cases; failing to protect vulnerable adults and children, and failure to obtain consent, or to treat properly or respectfully.
The Act brings in the possibility that in some rare situations there will be a POSITIVE duty to take POSITIVE steps in order to further or to protect people’s human rights against others, even if the budgets for a particular service or function are spent or would be overspent if the expenditure is approved. It is still lawful to decide not to spend the money, but the way in which an authority makes such a decision needs to be carefully managed and reasoned. Simply saying ‘We can’t do x, y or z, because those particular budgets are already spent or tight’ is the dangerous thing to do, because it is not making any attempt to weigh the effect on the human rights of the people concerned, of spending or not spending the money, against the desirability of sticking to a pre-ordained monthly or quarterly spending plan, or the effects of viring the money out of another corporate budget.
We are aware that one of the exceptions to the right to respect is where the economic well-being of the country requires it, and on this ground, airport noise has been regarded as not incompatible with art 8 rights, because of the economic importance for the country of the airline traffic. However, this area of law is moving on and the ECtHR has since found against the government in Hatton v UK on the basis of the lack of evidence of the contribution to the economy of the current level of night flights. A question arises whether the budgetary effects which now need to be weighed for art 8 purposes, are national or local ones – that is, now that the Convention rights have been given local significance by extending the scope of the UK’s human rights framework not just to central government but to public authorities which may have regional (or smaller) responsibilities.
The answer is not yet clear in the courts (see Marcic v Thames Water Utilities Limited (2001) 151 NLJ 1180). But we think that even if the local budget can legitimately be weighed in the balance, in relation to proportionality, the discharge of UK statutory duties in Health and Social Care, which may already have been triggered by the facts of an individual situation, is not something which can be traded off against the effect on the authority’s budget.
This is especially true for the local authority social services sector – where case law has shown clearly that discretions may be reined in, on the basis of budgetary difficulties, but not statutory duties. If a duty has been triggered, it must therefore be discharged, we think, without regard to the precise state of the budget of a particular manager at the time and without regard to the economic well-being of the country or the area.
We would refer all site visitors here, on to the questions involving the legal issues around identifying such Duties vs Discretions, because duties are very rarely found in health and social care statutes. Examples are s117 Mental Health Act, owed to all those leaving hospital from under a compulsory admission to mental hospital; and s2 of the Chronically Sick & Disabled Persons Act 1970, in respect of people with assessed needs for local authority arranged or provided services.
If this analysis holds good for discharge of social care functions, it is hard to see how joint working will operate if the NHS does not also shift its position on ultimately being able to withdraw a service assessed as necessary, just to make the budget balance.