Legitimate Expectations Flashcards
What is meant by a legitimate expectation?
Where a person has relied on a promise, pattern of conduct or representation made by a public body and it would be unfair for the public body to go back on this
What is a procedural legitimate expectation?
Arises where a public authority makes a representation that it will follow a certain procedure and then does not
AG of Hong Kong v Ng Yuen Shiu, It is in the interest of good administration that the government should implement its promise so long as implementation did not conflict with its statutory duty
What was the debate around the existence of substantive legitimate expectations prior to Coughlan?
- Hamble Fisheries, recognised SLE as a part of English law it is unfair to not include
- Hargreaves, Hirst LJ disagreed with Sedley J judgement saying it was ‘heresy’
- IRC case, spoke of the practice that has been taken and understood, said we have been doing things so long it would be unfair to depart from them
What happened in the case of R v North & East Devon Health Authority, ex parte Coughlan?
Ms. Coughlan was involved in an accident causing life changing injuries meaning she was required to have full time care. She was moved into Mardon House who promised it would be ‘a home for life’. A few years later the local health authority decide to close the home based on recent guidance about nursing services. Ms. Coughlan brought a claim arguing she has a legitimate expectation
What was the outcome of the Coughlan case?
The decision to close the home was not valid,
* There was no overriding interest that would justify the house being closed
There are three possible outcomes based on the promise:
1. Public authority is only required to bear in mind previous policy, review is therefore based on Wednesbury grounds
2. Court may decide the promise induces a legitimate expectation of, e.g., being consulted, therefore determining whether the decision was procedurally fair
3. Promise may induce an expectation which is substantive, not just procedural, court will consider whether to frustrate such would be so unfair to take a different course would be an abuse of power. The court will have to determine whether there is a sufficient overriding interest
What are the four ways in which we may categorise substantive legitimate expectations?
DIRECT PROMISE:
1. Is there a promise?
2. Does the decision contradict the promise?
(e.g. Coughlan, Bibi, Rowland) (Akin to contract)
EXCEPTION TO THE RULE:
1. Is there a rule?
2. Is someone exlcuded from the rule?
3. Is there a public interest why?
(e.g. Nadarajah, Patel, Mandalia) (Akin to proportionality)
CHANGE OF THE RULE:
1. Is there a rule?
2. Is the rule changed?
3. Is there a gap created by the change?
(e.g. Niazi) (Akin to Wednesbury)
POLITICAL STATEMENT:
1. Are they a public authority?
2. Do any of the other three above apply?
(e.g. Begbie)
What happened in the case of Mandalia v Secretary of State for the Home Department?
FACTS- The applicant was a foreign student studying in the UK. Certain immigration rules provide certain provisions around bank statements. Some documents were missing from this and agency caseworkers did not ask for these, despite documents providing they had to. Mandalia argued he had a legitimate expectation
OUTCOME- Refusal was unlawful. The applicant had a right to have his application determined according to policy. A public authority should follow its published policy unless it had good reasons not to do so
What happened in the case of R (Niazi) v Secretary of State for the Home Department?
FACTS- The applicants were solicitors who challeneged a decision to reduce the level of compensation for legal costs. The firm argued they had a procedural legitimate expectation on two grounds and a substantive on the basis of a wider transitional provision
OUTCOME- All three forms were rejected. SLE’s should only arise where the assurance is pressing and focused. Three classes of LE’s identified:
1. ‘Paradigm case’ PLE: Arises from a promise or practice of notice in the event of contemplated change, cannot make the change without notice or consultation
2. SLE: Arises from promise or practice of present and future substantive policy
3. ‘Secondary case’ PLE: Claimant has enjoyed a benefit in the past, not from representation or promise, gives the same right as paradigm cases
What happened in the case of R v Education Secretary, ex parte Begbie?
FACTS- The applicant was offered a place at a private school under a state assistance scheme. Labour sought to abolish the scheme but made promises that those already on it could stay. However when they gained power funding was limited only till the end of primary education but gave discretion to the SoS to extend funding
OUTCOME- The applicant did not have a legitimate expectation. Abuse of power is the root concept.
What happened in the case of R (Bibi) v London Borough of Newham?
FACTS- Applicants were given accom. for the homeless by the local authority which said it would provide them with security of tenure, wrongly believing it had to do so. Once they realised they did not, the promise was gone back on. The High Court ruled the applicants had a legitimate expecation
OUTCOME- Declaration of High Court was set aside, instead the local authority was ordered to reconsider decision with a duty to consider the applications on the basis they have a legitimate expectation. 3 questions arise:
1. What has the public authority committed itself to?
2. Have they acted or proposed to act unlawfully?
3. What order should the court make?
Detrimental reliance is not essential. If the case is in the macro-political field the court will likely be less intrusive and take the matter back to the decision maker
What happened in the case of Finucane, Re Application for Judicial Review (Northern Ireland)?
FACTS- The NI Secretary refused to hold a public inquiry into the murder of a solicitor by paramilitaries. The solicitors widow claimed she had a legitimate expectation given by the NI Secretary’s speech in the Commons
OUTCOME- Finucane did have a legitimate expectation since the decision whether to hold one lay in the public field. There is no requirement of detrimental reliance
