LGF0004

Written evidence submitted by COVID-19 Review Observatory, Birmingham Law School, University of Birmingham

 

 

COVID-19: Local Government Finance

Evidence to the Public Accounts Committee

 

Professor Fiona de Londras, Dr Pablo Grez Hidalgo and Daniella Lock

COVID-19 Review Observatory, Birmingham Law School, University of Birmingham

 

 

Executive Summary

 

 

 

 

 

1. Human rights and the Public Accounts Committee’s remit

 

1.1               We note that the remit of the PAC is the ‘examination of the accounts showing the appropriation of the sums granted by Parliament to meet the public expenditure, and of such other accounts laid before Parliament as the committee may think fit’ (see Rule 148 (1) Standing Order). We submit that integrating human rights considerations into the Committee’s work is within its remit.

 

1.2              International human rights obligations and obligations under the Human Rights Act 1998 apply to all government activity, including the arrangement of public expenditure. In practice, this means that in making resource-allocation decisions, including decisions about the funding of local authorities which have rights-fulling roles including in social care and housing provision, the Government is expected to take into account its human rights obligations, including especially obligations to respect, protect, and fulfil rights like the right to equality and non-discrimination, the right to life, the right to health, the right to education, and the right to food.

 

1.3               As the Committee which ‘examines the value for money of Government projects, programmes and service delivery’ and ‘holds government officials to account for the economy, efficiency and effectiveness of public spending’, the PAC has a legitimate role in assessing the extent to which the Government is fulfilling its human rights obligations in the expenditure and arrangement of public funding.[1] Indeed, doing so is integral to assessing the effectiveness of public expenditure, as effectiveness must encompass successfully discharging legal obligations, including human rights obligations. As courts generally exercise deference in respect of government expenditure, Parliament and its committees play a critical role in ensuring accountability for public expenditure including for its human rights implications. The Public Accounts Committee is critical to that accountability and scrutiny work. Our submission surfaces a number of human rights considerations relevant to the Committee’s inquiry on ‘Covid-19: Local Government Finance’ in order to assist the Committee in integrating human rights analysis in its inquiry.

 

2.  Four key roles of human rights

 

2.1              In respect of the immediate reaction to COVID-19, human rights play four important roles.

 

  1. Human rights impose some positive obligations on the state. That is, they require the state to take certain actions in order to secure the practical and effective protection of rights, including by arranging public resources, including public funding, in a way that enables rights fulfilment.

 

  1. Human rights constitute limitations on the actions that the state may take in response to the virus.

 

  1. Human rights constitute ‘design principles’ for longer-term responses to the pandemic. A human rights approach requires us to identify and understand the long-term rights-related impacts of the pandemic, and to design responses to those impacts—including funding arrangements—that operate to enhance, and do not unlawfully limit, the enjoyment of rights.

 

  1. Human rights play an accountability role in respect of pandemic responses, ensuring that where rights have been violated in the response to the pandemic one has access to justice and to an effective remedy,[2] and requiring the state to take steps to ensure non-repetition of such violations in this or any future analogous situations.[3]

 

3. Three key human rights issues the Committee should consider in relation to local government finance.

 

 

3.1              There are three key human rights issues the Committee should consider in relation to local government finance. These relate to three sets of distinct rights, all of which the UK is obligated to protect under both domestic and international human rights law.

 

a)     Right to health

 

3.2              In order to protect the right to health, states must ensure that services, goods and facilities are available, accessible, acceptable and of good quality.[4] While the right to health is progressively realisable, it imposes some immediate obligations on states,[5] namely to ensure non-discrimination in access to health,[6] and to ensure a minimum level of access to the essential components of the right including to essential drugs.[7] The right to the highest attainable standard of health entails an entitlement to a system of health protection that provides equal opportunity for everyone to enjoy the highest attainable level of health,[8] access to essential drugs,[9] equal and timely access to basic health services,[10] and health-related education and information.[11]

 

3.3              In the context of financial support for local authorities during the pandemic, a rights based approach would ensure the provision of sufficient financing so that those with health needs were able to receive adequate support by the local authorities. This includes, for example, ensuring sufficient financial support so that those within the control of local authorities have access to the basic essentials necessary for living while shielding, in order to make shielding practically feasible for such individuals. It also includes providing funding to ensure that crucial health services existing prior to the pandemic, such as access to mental health support for those with acute mental health needs, continue during the crisis.

 

3.4               The recent NAO report on local government finance has highlighted the significant pressure local authorities are currently under. This is a result of long-term reduction in funding, increased costs of providing public services as well as the COVID-19 pandemic which has created an extra cost of £9.7 billion pounds.[12] Moreover the report notes a number of issues with the Government’s provision of funding to local authorities during this difficult time. This includes the perception of key stakeholders that departments other than the Ministry of Housing, Communities and Local Government (MHCL) lacking understanding of local government finance and ‘related practical details of delivering specific schemes’.[13] The report also notes that the MHCL’s approach to providing funds ‘does not support good financial planning’,[14] has failed in being sufficiently transparent about the level of financial stress experienced by local authorities,[15] and has left a ‘substantial’ funding gap faced by some authorities,[16] that may result in financial failure of some authorities.[17] As a consequence of these factors, the ability of authorities to maintain financial and service sustainability, and therefore discharge their obligations to protect the right to health, during the COVID-19 pandemic is currently uncertain.

 

3.5              We note that that there is already research which suggests the right to health may not have been adequately protected by local authorities. This may well be linked to a lack of funding available to local authorities. For example, research by the Health Foundation shows that the amount of hospital care received by those living in care homes in England rapidly declined in the first three months of the pandemic in 2020 and was substantially lower than in the same period in 2019.[18] The Health Foundation argues that this indicates that significantly fewer care home residents received potentially life-saving treatment during the first phase of the pandemic. The Committee should consider whether the lack of access to healthcare is linked to local authorities having insufficient funds to ensure that those in care homes could safely travel to hospitals, or access health care in other ways, without undue exposure to COVID-19. Should this be the case, it would point to an approach to financing that undermined capacity to ensure rights fulfilment through the provision of goods and services by and through local authorities.

 

3.6              For the PAC to be able to effectively assess whether there are links between local government financing and a lack of access to healthcare, there needs to have been effective monitoring of access to healthcare by local authorities. We note observations from another NAO investigation that there has been a lack of effective monitoring of support provided both by the Government and local authorities to clinically extremely vulnerable (CEV) people during the pandemic.[19] The lack of data available as to this support means that identifying all the gaps in protection by local authorities of this vulnerable group may not be possible. This highlights the importance of both the Government and local authorities ensuring there are effective means of monitoring the outcomes of its human rights-related interventions, including disaggregating data by protected characteristic. If the PAC is unable to consider whether funding has been provided to local authorities in a way that enabled them to fulfil and protect the right to health, we submit that it ought to make recommendations as to data collection that would ensure it has the ability to examine the right to health in its future inquiries.

 

b)     Right to non-discrimination

 

3.7              In discharging their functions local authorities are obliged to ensure that individuals do not experience discrimination based on protected characteristics.[20] We suggest that the Committee ought to consider the extent to which the right to non-discrimination was factored into decisions as to the allocation of funds both at the Westminster-level and local government-level. Furthermore, we submit that the PAC should question whether the support provided by the Government to local authorities was tailored to ensure that they would be in a position to support vulnerable groups and address disproportionate and unevenly distributed impacts of the pandemic. We further submit that it should examine whether the distribution of funding to local authorities resulted in the limitation of support in ways that disproportionately impacted on people based on protected characteristics, including race.

 

3.8              A recent report by the Scottish Equalities and Human Rights Committee highlighted some concerning issues regarding local authorities’ responses to Covid-19 and their impact on protected characteristics.[21] Among many, the report noted significant challenges for visually impaired and sight loss people in the pandemic context. They were all related with local authorities’ capacity to assess the impact of changes in social life on these vulnerable groups. For instance, lack of consultation and impact assessments on these protected characteristics when introducing new cycle lanes schemes to respond to the increase of bikes on non-segregated paths, making changes in pathways and streets, and delaying necessary adaptation works for disabled people at their premises.[22] Whilst these changes have posed significant challenges for blind and partially sighted people to walk and exercise, creating significant health risks, social distancing measures have also created significant barriers for them shop for essentials, thereby highlighting the need for local authorities to assist them. It is also worth noting that clause 14 and Part 1 of Schedule 12 of the Coronavirus Act 2020 introduced changes in the Care Act 2014. Whilst some duties where discharged, the Act introduced a general duty on local authorities to meet the needs for care and support of an individual, when not doing so would be a breach of the person’s Convention rights. Insufficient public funding will impede local authorities from discharging key statutory duties to meet the needs for care and support of an individual.

 

3.9              While there may be some limitations to the data available to the PAC from which a discrimination analysis can be undertaken, we note that the Office of National Statistics has published a huge body of data of the impact of COVID-19 on particular social groups with needs relevant to social provision by local authorities.[23] This includes data that indicate. that between January and November last year, disabled people made up 59.5% of all deaths involving COVID-19.[24] We further note that the evidence regarding the provision of PPE to NHS and social care organisations also implicates right to non-discrimination. This is confirmed by the following observation from the Joint Committee on Human Rights:

 

It is also arguable that when it became clear that black, Asian and minority ethnic communities were suffering disproportionately from the effects of Covid-19, the right to life (Article 2 ECHR) read together with the right to non-discrimination in the enjoyment of the substantive ECHR rights (Article 14 ECHR) should have required the prioritisation of the allocation of PPE to (for instance) BAME doctors and nurses. We have received evidence that in some cases the reverse has in fact been the case.[25]

 

This quote suggests there is much for the PAC to investigate in considering the impact of Government finance to local authorities on equality of access to vital services and resources during the pandemic. We hope that the PAC will be extensive in its review of the data currently available, including if necessary interviewing experts engaged with and able to analyse such data, in its consideration of this issue.

 

c)      Right to life

 

3.10              As well as prohibiting the intentional and unlawful taking of life, the right to life obliges the state to take appropriate steps to safeguard the lives of those within its jurisdiction.[26] This includes implementing operational measures to protect those whose lives are at risk,[27] and taking steps to reduce transmission including by providing financial assistance in order to reduce risks of persons having to undertake higher-risk activities out of economic necessity.[28] 

 

3.11              In examining the Government’s management of local government finance, we suggest that the Committee should consider the interaction of this support with the right to life. Specifically, we urge the Committee to consider whether the Government took appropriate steps in ensuring that local authorities had sufficient finance to provide this support to protect those whose lives were at risk. We submit that such an assessment would in essence require a consideration of whether a lack of finance provided to local authorities meant that such authorities were not able to provide the necessary support to all high-risk individuals under their control who were at high-risk during the pandemic.

 

4. The impact of long-term cuts to local authority funding on human rights

 

4.1              The NAO has noted that that the challenges currently faced by local government ‘follow a decade in which local authority funding has reduced while demand for key services has risen’.[29] This is linked to sustainability of local authorities being challenged over the medium term. In engaging with the NAO’s observations on this issue, the PAC should consider whether there is a link between the long term cutting of funds to local authorities and any failures to protect human rights during the pandemic. Taking such a perspective is crucial to ensure that lessons are learnt for the future, rather than mistakes being repeated. In emphasising the importance of this longer term perspective for learning lessons, we note the observation of the Health Foundation that the recent Government budget signals a ‘long and deep period of austerity’.[30] If this accurately describes the direction of government funding, it is critical that, as a matter of urgency, the PAC investigates rights-related implications of the financing of local authorities to inform the Government of the rights-related implications of further austerity before it is too late to avoid the repetition of mistakes.

 

5. Concluding remarks

 

5.1              We recognise the extensive work of the PAC in reviewing the Government’s response to the pandemic. The Committee is the only committee so far to examine local government finance during the pandemic. This inquiry may, indeed, be the only occasion a parliamentary committee assesses it. It critical that the human rights implications of Government support in this area are examined closely, so that human rights can be better protected in future, analogous, situations, and so that in assessing the effectiveness of government expenditure questions relating to the fulfilment of human rights obligations are effectively integrated. We stress that questions of rights-related impacts are not limited to the Joint Committee on Human Rights or other dedicated human rights fora. Rather, they are relevant to the work of the PAC which is engaged in ensuring accountability for, effectiveness of, the Government response to the pandemic, including its support for local government during the pandemic.

 

5.2              We also note that the turnaround from the publication of the NAO Report on this issue to the close of the call for evidence for this inquiry was little over twenty-four hours. This may have frustrated attempts from persons impacted by local government finance to inform the Committee with their experience. We encourage the Committee to ensure longer windows for submissions in future inquiries.

 

 

About Us

 

Fiona de Londras is Professor of Global Legal Studies at Birmingham Law School, University of Birmingham.

 

Dr Pablo Grez Hidalgo is a Research Fellow at the COVID-19 Review Observatory, Birmingham Law School, University of Birmingham.

 

Daniella Lock is a Research Fellow at the COVID-19 Review Observatory, Birmingham Law School, University of Birmingham.

 

The COVID-19 Review Observatory is a UKRI-funded (AHRC) research initiative located at Birmingham Law School, University of Birmingham. It tracks, assesses, and engages with parliamentary reviews of responses to the COVID-19 pandemic with a view to ensuring effective consideration of rights protection, and to enhancing accountability and legitimacy by supporting parliamentary review. A key part of its work is participating in such reviews by, for example, submitting to committee inquiries.

 

 

March 2021

 


[1] Description of the Public Accounts Committee provided on the Committee webpage: https://committees.parliament.uk/committee/127/public-accounts-committee/.

[2] Article 2, International Covenant on Civil and Political Rights; Article 13, European Convention on Human Rights.

[3] The right to a remedy is understood in international human rights law as involving a guarantee of non-repetition and, where necessary, changes in relevant laws and practices. UN Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligations Imposed on States Parties to the Covenant. UN Doc. CCPR/C/21/Rev.1/Add.13

[4] CESCR General Comment 14: The Right to the Highest Attainable Standard of Health (Article 12), UN Doc. E/C.12/2000/4, para. 12.

[5] CESCR General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), UN Doc. E/1991/23; CESCR General Comment 14, para. 10: The Right to the Highest Attainable Standard of Health (Article 12), UN Doc. E/C.12/2000/4, para. 43

[6] CESCR General Comment 14: The Right to the Highest Attainable Standard of Health (Article 12), UN Doc. E/C.12/2000/4, para. 12(b).

[7] CESCR General Comment 14: The Right to the Highest Attainable Standard of Health (Article 12), UN Doc. E/C.12/2000/4, para. 12(a).

[8] CESCR General Comment 14: The Right to the Highest Attainable Standard of Health (Article 12), UN Doc. E/C.12/2000/4, para. 8.

[9] CESCR General Comment 14: The Right to the Highest Attainable Standard of Health (Article 12), UN Doc. E/C.12/2000/4, para. 12(a).

[10] CESCR General Comment 14: The Right to the Highest Attainable Standard of Health (Article 12), UN Doc. E/C.12/2000/4, para. 17.

[11] CESCR General Comment 14: The Right to the Highest Attainable Standard of Health (Article 12), UN Doc. E/C.12/2000/4, para. 11.

[12] National Audit Office, “Local government finance and the pandemic” (10 March 2021) (https://www.nao.org.uk/work-in-progress/local-government-finance-and-the-pandemic/), para 13.

[13] Ibid, para 17.

[14] Ibid, para 18.

[15] Ibid, para 19.

[16] Ibid, para 21.

[17] Ibid, para 24.

[18] Research reveals scale of reduction in hospital treatment for care home residents and warns of backlog of pent-up demand for NHS care”, The Health Foundation (8 March 2021) (https://health.org.uk/news-and-comment/news/research-reveals-scale-of-reduction-in-hospital-treatment-fo).

[19] National Audit Office, ‘Protecting and supporting the clinically extremely vulnerable during lockdown’ (10 February 2021) (https://www.nao.org.uk/wp-content/uploads/2021/02/Protecting-and-supporting-the-clinically-extremely-vulnerable-during-lockdown.pdf), paras 2.12 – 2.13.

[20] Article 4, International Covenant on Civil and Political Rights; Article 14, European Convention on Human Rights.

[21] Equalities and Human Rights Committee, Report on the impact of the COVID-19 pandemic on equalities and human rights, 1st Report of 2021 (Sessions 5), SP 966.

[22] Ibid. at paras 214-227.

[23] Office of National Statistics, Updated estimates of coronavirus (COVID-19) related deaths by disability status, England: 24 January to 20 November 2020 (21 February 2021) (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/articles/coronaviruscovid19relateddeathsbydisabilitystatusenglandandwales/24januaryto20november2020#overview-of-covid-19-related-deaths-by-disability-status).

[24] Ibid.

[25] Joint Committee on Human Rights, The Government’s Response to COVID-19: Human Rights Implications, 7th Report of Session 2019-21. HC 265, para 69.

[26] UN Human Rights Committee, General Comment No. 36: Right to Life UN Doc. CCPR/C/GC/36, esp. para 26; Article 2 of the European Convention on Human Rights.

[27] Stoyanovi v Bulgaria App. 42980/04, Judgment, 9 November 2010, para 61.

[28] Written evidence of Fiona de Londras, Alan Greene and Natasa Mavronicola to the Joint Committee on Human Rights (2020) COV0012, para. 2.1. (https://committees.parliament.uk/writtenevidence/920/pdf/). See also Elizabeth Stubbins Bates, “Article 2 ECHR’s Positive Obligations—How Can Human Rights Law Inform the Protection of Health Care Personnel and Vulnerable Patients in the COVID-19 Pandemic? Opinio Juris, 1 April 2020 (https://opiniojuris.org/2020/04/01/covid-19-symposium-article-2-echrs-positive-obligations-how-can-human-rights-law-inform-the-protection-of-health-care-personnel-and-vulnerable-patients-in-the-covid-19-pandemic/).

[29] National Audit Office, ‘Local government finance and the pandemic’ (work in progress) (https://www.nao.org.uk/work-in-progress/local-government-finance-and-the-pandemic/). This observation ended up being absent from the report, however the report does note that many authorities were ‘already under strain going into the pandemic’. National Audit Office, “Local government finance and the pandemic” (10 March 2021) (https://www.nao.org.uk/work-in-progress/local-government-finance-and-the-pandemic/), para 1.

[30] Anita Charlesworth, “The Chancellor’s squeeze on public spending signals a long and deep period of austerity”, The Health Foundation (8 March 2021) (https://health.org.uk/news-and-comment/blogs/the-chancellors-squeeze-on-public-spending-signals-a-long-and-deep-period).