is a concept rooted in the notions of fairness and unreasonableness. It refers to an outcome or interest which someone hopes to achieve or retain, based on a promise or a long-standing practice by a public body. The doctrine of legitimate expectation still lacks clarity but is bound to be refined further by the Courts, given the applicability of the UK Human Rights Act 1998 since October 2000. Going back on a promise or practice can be framed as a lack of respect for people’s Convention rights.
Whether an expectation exists at all can be an issue, and the awareness of the individual concerned may prove relevant here. But next comes the question whether the expectation is legitimate. An expectation is ‘legitimate’ whenever it is thought that the promise or practice concerned ought to have some effect on the future freedom of the body to act.
The next crucial question is what should the effect of that legitimate expectation be? It is not unusual for public bodies to want to go back on their promises or practices, and the Courts have grappled with whether they should be:
obliged to ignore the previous representations (eg where the representation was unlawful);
free to change policy, having taken the making of the representation into account;
free to change policy but only after taking certain steps, so that the expectation is not summarily disappointed (often referred to as procedural protection);
free to change policy only if there is an overriding public interest demanding the change; or
completely prevented from back-tracking (these last two outcomes are often referred to as substantive protection).
The other main question for debate is whether a remedy when it is granted by a court, is properly seen as based on the ground of irrationality, or upon general principles of fairness. On this turns the extent to which the Court will itself balance the competing interests of those affected, as opposed to asking whether the decision-maker’s balancing was reasonable.
The difficulty with the doctrine’s reliance on the principles of procedural fairness is that these principles have traditionally focused on the way in which public bodies conduct their decision-making, not on the overall fairness of the outcomes. Indeed, references in the cases to a need for an overriding public interest to justify departure or change would suggest that irrationality is not the proper test and that a more interventionist line will nowadays be taken. If the test for its being unlawful to go back on a promise was irrationality, any reasonable decision to change policy would trump a representation.
In recent cases the judges have tried to cover themselves on all fronts by claiming that circumstances can make changing policy so unfair that the decision becomes irrational. It seems that the approach to ‘balancing’ required by the courts from public officials when considering policy change in the face of a legitimate expectation is the same as is required when they are making decisions affecting fundamental human rights. This may be consistent with the European law doctrine of legitimate expectation, which protects public interest in consistency and certainty, through the tool of proportionality. This approach allows Courts to intervene to protect what they see as the most important expectations of citizens or companies (eg against a ban on manufacture of a product) or situations where reliance has made change particularly unfair, by requiring a much more pressing public interest than a mere desire to change its policy (eg. a risk to public health might suffice, whereas moral disapproval might not).
Examples from health and social services caselaw
In Khan, the applicant had a legitimate expectation that if certain immigration criteria were met, then a child could be adopted from abroad. A declaration to this effect was given based on what fairness required. In this case it may be significant that the author of the guidelines regarded himself as making rules for himself, and not just setting out general principles. The government should not “be entitled to resile from that undertaking, without affording interested persons a hearing, and then only if the overriding public interest demands it.”
In the MAFF case (nothing to do with health or social care), although failing on the facts, the applicants persuaded Mr Justice Sedley that the concept of overall fairness was at the root of all expectation cases. The decision as to whether change was fair would be primarily for the decision-maker, subject to the judge’s intervention in cases where the original weighing of the competing interests was irrational, given the impact on the individual.
Yet in Hargreaves the Court of Appeal labelled this approach as ‘heresy’ and held that a substantive expectation could only be enforced if it was irrational in the Wednesbury sense to disappoint it. The Court rubbished the idea that it is the Court which should weigh the fairness of making change against the impact on the individual, thus re-asserting that the doctrine is really just part of irrationality. Although this case has been much criticised by commentators as being out of line with other decisions, the later Bloody Sunday Inquiry case was consistent with it.
the court held that it was necessary to consider the individual circumstances of each resident of a long-stay hospital for people with profound learning disabilities before making a decision to close the hospital. It was also necessary to look at all that the health authority had said to the residents and their families in assessing whether or not the authority had guaranteed a home for life. In failing to have any regard to the promises and previous statements of policy concerning a home for life, the health authority had failed to take into account a highly material consideration. The HA had to think again.
In Coughlan the severely disabled applicant had been receiving long-term NHS nursing care, initially in hospital, and from 1993 in Mardon House, a specialist facility run by an NHS Trust. She moved in after an express promise that she would have a “home for life”. For policy reasons driven by a change in priorities in favour of rehabilitation patients, and on the assumption that the National Health Service and Community Care Act 1990 and Health Service Guidance 95(8) no longer empowered or required it to provide long-term general nursing care for anyone, the Health Authority decided to close Mardon House. Ms Coughlan contended she would never have agreed to the move but for the “home for life” promise. Her counsel argued that the Health Authority’s actions in resiling from the promise were so unfair as to amount to an abuse of power, relying on Preston, CCSU and Unilever.
The respondent argued that its legal and moral obligations to the wider community had to be balanced against the effect of the promise. It was not irrational to prefer the good of the many as opposed to the individual’s interest in staying on. Alternatively, if the promise was of a type which could only be resiled from, after hearing the applicant, where there was an overriding public interest requiring it, then the resource allocation duties of the Authority constituted exactly that, in its view. The operational problems with the services and users sited at Mardon House were compelling.
Hidden J held that the HA’s “home for life” promise specifically referred to Mardon House. To break the promise was “equivalent to a breach of contract” and thus the Authority had not performed the right type of balancing exercise. In the Court of Appeal, Mr Justice Sedley had now become a Court of Appeal judge so was able to reinstate his earlier approach in the MAFF case from the status of ‘heresy’ to that of the proper approach once again, and Coughlan is now the leading case on the doctrine.
In Coventry City Council ex p Carton and Larrad, the council’s failure to stick to the longstanding practice of consultation before putting up domiciliary charges and making other fundamental changes to the structure was found to be invalid. This was so even though there is no statutory legal obligation to consult in relation to the right to charge for domiciliary care under s17 HASSASSA.
In Newham LBC, ex parte Bibi and Al-Nashed, it was held that a promise made on a mistaken view of the law is nonetheless capable of creating a legitimate expectation. The council had erred in law, when deciding whether to offer secure accommodation to the applicants, by failing to take account of their legitimate expectation that such accommodation would be provided on the basis of promises previously made, albeit on the basis of a mistaken interpretation of the relevant housing law.
In Barking & Dagenham, LBC ex p Lloyd, a home for life argument was raised, and carefully examined. It was held that the test of whether a legitimate expectation had been created was that enunciated in Coughlan, ie “whether to frustrate the expectation is so unfair that to take a new and different course will amount to abuse of power”. Statements by local authority officers had, apparently, to be understood in context, and on the facts of this case the families had not actually had an expectation of a ‘home for life’. Neither was the local authority in breach of a legitimate expectation for communal eating arrangements, regarding the proposals for redevelopment of a care home as supported living flatlets.
It sometimes seems that central government gets off more easily, in this regard, than do local authorities. In Secretary of State for Health, ex parte Alcohol Recovery Project it was held that the failure by Secretary of State for Health to consult voluntary organisations providing care to people dependent on drugs or alcohol, before deciding not to make specific grants for alcohol and drug dependency under s7E Local Authority Social Services Act 1970, was not a breach of a legitimate expectation. This was so even though such organisations had been consulted initially on policy in relation to the s7E power.
For reasons not unrelated to judicial deference to central governmental bodies and their delegates, the NHS seems to get off more lightly too! In Bath Mental Healthcare Trust, Wiltshire Health Authority and Wiltshire CC, ex p Beck and others, it was not unlawful for an NHS Trust to close and sell a building, used by local community care service users, for economic reasons. It was not unlawful for the sale to proceed, even though the trust, the health authority and the local authority had failed to ensure that the service users would receive continuity of service elsewhere. Reasonable notice to the local authority and other interested parties was all anyone could legitimately expect!
With ever more delegated legislation and guidelines, circulars, press releases etc to keep up with, applicants for judicial review on grounds of legitimate expectation, whether individuals or corporations, may find it harder to establish sufficient awareness of policy to establish a legitimate expectation.
It is probably safe to assume that legitimate expectation can never give rise to an absolute right to have that expectation actually met. But ordinary principles of fairness may require procedural steps such as a hearing or consultation before the change is finally decided upon. In some cases, where the interest in question is deemed to be of fundamental importance, the Courts might also require an overriding public interest to trump the expectation.
In cases where there was never any assurance that policy would continue in its old form, the challenge is really about the rationality of making the change, given its effects on those involved. Here the Courts are only likely to intervene on Wednesbury grounds. Where there was an expectation that policy would continue, and there has been reliance on that, then focusing on the overall fairness of the impact on the individual may be of assistance.
Whatever the proper conceptual basis of legitimate expectation, practitioners are most likely to succeed if they rely on it to claim pure procedural protection before a change in policy is finalised. This is because Courts are more willing to impose their own views of what ‘fairness’ requires in a given context than they are to declare policy changes to be positively unreasonable.
In a case where there has been actual reliance by the claimant which has been detrimental to him or her, or the interest sought to be protected is of a particularly ‘important’ nature, (eg. as in Coughlan) and nothing but substantive protection of that interest will suffice, practitioners may succeed in persuading the judge to find that going back on a promise would be oppressive, unreasonable, or so unfair as to amount to an abuse, and hence unlawful. Coughlan shows that relief is more likely if it can be said that in the weighing of the interests, the decision-maker asked itself the wrong question, and that the question, in cases of actual individual reliance, should be whether there is an overriding public interest outweighing the past promise or practice?