King The Justiciability Of Resource Allocation Notes
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King - the justiciability of resource allocation Discretionary Allocative Decision Making • Discretionary allocative decision-making' may be defined as occurring where an administrative decision-maker decides to allocate public resources o under the authority of a discretionary power accorded under the law (statute, delegated legislation or prerogative powers). o Such powers may be contrasted with duties. An 'allocative decision', for present purposes, can be defined as one in which the decision-maker decides to allocate public resources • and the cost of the allocation is a consideration o relevant to the correctness, reasonableness, or propriety of the decision • The non-justiciability doctrine o The allocation of resources between competing claims raises non-justiciable issues first, the allocation must be discretionary; secondly, the decision reviewed must implicitly or explicitly take account of the cost of the allocation; and third, the head of legal challenge must be Wednesbury or rationality review. • It is the rule that such decisions are non-justiciable that shall be named the 'non-justiciability doctrine o It is not only decisions regarding national economic policy that are encompassed within the idea of discretionary allocative decision-making. Indeed, courts are concerned not to review allocative decision-making of relatively discrete forms on grounds of Wednesbury reasonableness. Per Bingham MR in R v Cambridge Health • "Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which a court can make" o However, the breadth of the statement in Ex p B is liable to a wider interpretation than the rule it lays down The particular legal claim that gave rise to Lord Bingham's statement was an attempt to force a health authority to explain the budgeting decisions that made the refusal of funding a reasonable decision. • That type of inquiry, the Court of Appeal found, would ultimately force courts to second-guess the wisdom of budgeting decisions. That is quite a different issue from whether the decision-making of health or other public authorities can be subject to legal oversight on rationality grounds, • even when such oversight affects decisions that influence how resources are allocated within the authority. • The key aspect of all the decisions following the Ex p B line of authority is that cost was a relevant and explicit concern of the authority's decision. In this respect, then, they are all allocative decisions as defined above. o In contrast, in Rogers v Swindon The Court found that once the health authority found that available resources were irrelevant, as it had in that case, • then there could be no rational reason to refuse funding due to personal characteristics, • and in fact there was no rational reason to refuse for clinical characteristics o The Court distinguished Ex p B because the PCT explicitly disavowed the relevance of cost. Yet the Court went out of its way to state that had financial constraints been a relevant aspect of the decision, it would be 'very difficult, if not impossible, to say that such a policy was arbitrary or irrational o Indeed, the judgment is viewed by some commentators as an admonishment to make findings as to cost an explicit part of the decision-making process.
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