Legitimate Expectations Flashcards
What two types of legitimate expectations are there?
- Substantive
2. Procedural
Describe procedural legitimate expectations and give two examples.
The essence of procedural legitimate expectations is that the claimant seeks entitlement to some form of hearing before the public body deprives the claimant of a benefit. For example:
- A representation by the public body, giving rise to procedural legitimate expectation to a hearing that the claimant would not otherwise have been entitled to.
- The public body has established the criteria for the application of policy in a certain area, the claimant has relied on these criteria, and the public body then seeks to apply different criteria.
Describe substantive legitimate expectations and give two examples.
The claimant argues that an action by the public body created an expectation that justifies the claimant obtaining some form of substantive benefit (not just the benefit of a particular procedure). For example:
- A general norm or policy choice, which an individual has relied on, has been replaced by a different policy choice (for everyone).
- The public body has departed from a general norm or policy choice in the circumstances of a particular case.
- An individual representation has been relied on by a person, and the public body seeks to retreat from this representation in the light of a shift in general policy.
- An individualised representation that has been relied on. The administrative body then changes its mind and makes an individualised decision that is inconsistent with the original representation.
Explain the development of case law in procedural expectation cases.
- Schmidt v Home Office (1969): “an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.” “if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time. If his permit is revokedbeforethe time limit expires, he ought, I think, to be given an opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for the permitted time. Except in such a case, a foreign alien has no right - and, I would add, no legitimate expectation - of being allowed to stay. He can be refused without reasons given and without a hearing.”
- Attorney-General for Hong Kong v Ng Yuen Shiu (1983): Where a public authority charged with the duty of making a decision promised to follow a certain procedure before reaching that decision, good administration required that it should act by implementing the promise provided the implementation did not conflict with the authority’s statutory duty
- R v Home Secretary, ex p Khan (1984): The application was refused on the ground, inter alia, that the Secretary of State was “not satisfied that serious and compelling family or other considerations make exclusion [of the child from the United Kingdom] undesirable.” The applicant sought judicial review of the refusal. The Court of Appeal held that the Secretary of State had a duty to exercise his common law discretion fairly, but in reaching his decision on a ground not included in the specified criteria the Secretary of State acted unfairly and in disregard of the applicant’s legitimate expectations; and that, accordingly, the refusal of entry clearance would be quashed.
- R v Devon Health Authority, ex p Coughlan (2000): The Court distinguished three situations: 1. In the first situation, the court might decide that the public authority was only required to bear in mind its previous policy or other representation, giving it the weight it thought fit before deciding to change course. In such cases the court was confined to reviewing the decision on Wednesbury grounds. 2. The second situation was where the court decided that there was a legitimate expectation of being consulted before a decision was taken. In such cases the court would require there to be an opportunity for consultation, unless there was an overriding reason to resile from the undertaking. The court would judge for itself the adequacy of the reason for the change of policy. This situation was regarded as one where the court exercised “full review”, deciding for itself whether what happened was fair. The decision in Ng Yuen Shiu was cited as an example of this type of case. 3. The third situation was where the court considered that a lawful promise had induced a substantive legitimate expectation. The court would decide whether the frustration of the expectation was so unfair that to take a new and different course of action would amount to an abuse of power.
When the legitimacy of the expectation had been established, the court would weigh “the requirements of fairness against any overriding interest relied upon for the change of policy”. Most cases within this category were likely to be those where the expectation was confined to one person, or a few people. The present case was held to come within the third category.
What is the difference between the categories established in R v Devon Health Authority, ex p Coughlan (2000)?
The divide between the three types of case in Coughlan should be treated with caution.
The first category now confined to cases where the original promise was merely to consider taking action.
The second category is concerned primarily with procedural legitimate expectations.
The dividing line between the first and third categories cannot however be regarded as “hermetically sealed”.
“As it seems to me the first and third categories explained in the Coughlan case … are not hermetically sealed. The facts of the case, viewed always in their statutory context, will steer the court to a more or less intrusive quality of review.” Laws LJ in R v Department for Education and Employment, ex p. Begbie (2000)
What is the test for review when the public body seeks to depart from the legitimate expectation in the third situation? (Where the court considered that a lawful promise had induced a substantive legitimate expectation. The court would decide whether the frustration of the expectation was so unfair that to take a new and different course of action would amount to an abuse of power.)
Left unclear by Coughlan, where the court rejected a bare rationality test, and based intervention on abuse of power. This is however problematic, and the issue was clarified in R (on the Application of Nadarajah) v Home Minister (2005) - When a legitimate expectation exists, it is normally protected through ‘full review’ and ‘proportionality’. However deference as a modifier of the stringency of the proportionality test.
What two situations can make an expectation not legitimate?
- If the applicant could have foreseen that the subject matter of the representation was likely to alter, or that it would not be respected by the relevant agency.
- If the person claiming the benefit knew that the representer did not intend his statements to create an expectation then this will tell against the expectation being reasonable or legitimate.
What is the requirement for a substantive legitimate expectation? What cases does this come from?
R (Badger Trust) v Secretary of State for Environment, Food and Rural Affairs (2014): “The requirements for establishing asubstantive legitimate expectationare no longer controversial. There must be a representation or promise which is clear, unambiguous and devoid of relevant qualification (per Bingham LJ inR v IRC ex parte MFK Underwriting Agents Ltd[1990] 1 All ER 91, [1989] STC 873, [1990] 1 WLR 1545 at 1569, approved by Lord Hoffmann inR (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2). Laws LJ said inR (Bhatt Murphy) v Independent Assessorthat there must be a “specific undertaking”, directed at a particular individual or group, by which the relevant policy’s continuance is assured.”
Is detrimental reliance required to succeed in a substantive legitimate expectation claim?
Detrimental reliance is normally required in order for the claimant to show that it would be unlawful to go back on a specific representation. It is not necessary to show monetary loss or anything equivalent. There may be moral detriment flowing from disappointment when an expectation is not honoured, although disappointment will not suffice in this respect. Where a public body seeks to depart from an established policy in relation to a particular person, detrimental reliance should not be required. Consistency of treatment and equality are at stake in such cases, and these values should be protected irrespective of whether there has been any reliance as such.
Briefly discuss the problem of ultra vires representations in relation to substantive legitimate expectations.
Means that representations made by an agent who lacks authority, or representations leading to decisions which are ultra vires the public body itself, cannot be binding. An ultra vires representation will not normally create a legitimate expectation.
Give three ways of how judges justify legitimate expectations. Give three possible alternative justifications.
Judges: 1. not permitting unfairness 2. preventing the abuse of power 3. ensuring good administration Alternative: 1. Legal certainty 2. Rule of Law 3. Prevent losses created by public authorities when expectations that have been relied upon are disappointed.
What is the relationship between legitimate expectations, Wednesbury unreasonableness, and proportionality?
Legitimate Expectations and Wednesbury Unreasonableness: Both could occur in cases where a minister changes to a new policy and the claimant argues that the old policy should be followed because the new policy is unreasonable. Both tests are also context sensitive.
Legitimate Expectations and Proportionality: In R v Coughlan (2000) it was stated that the following should be considered in legitimate expectation cases: How many people were affected? Is it in favour of public interest? And don’t consider previous policy any more than necessary. These are similar to what should be considered during the proportionality test.
Summarise the Coughlan (2000) case. Analyse the decision.
The applicant, who was severely injured in a road accident in 1971, was tetraplegic, doubly incontinent, partially paralysed in the respiratory tract and suffered from recurrent headaches. In 1993 she and seven comparably disabled patients were moved with their agreement from a hospital which the health authority wished to close to Mardon House, a National Health Service facility for the long-term disabled, which the health authority assured them would be their home for life. In 1996 the health authority published its eligibility criteria for long-term NHS care, based on guidance issued by the Department of Health, which indicated that “specialist” nursing services should be provided by the NHS but that “general” nursing care should be purchased by local authorities. Subsequently, the health authority concluded that the applicant and other Mardon House residents did not meet those criteria. In 1998, following public consultation, the health authority decided to close Mardon House and to transfer the long-term general nursing care of the applicant to the local authority, although no alternative placement for her was identified.
On an application for judicial review of the closure decision, the judge quashed the decision to close Mardon House, holding that the applicant and other patients had been given a clear promise that Mardon House would be their home for life and the health authority had not established an overriding public interest which justified it in breaking that promise, that the closure decision was flawed because no alternative placement for the applicant had been identified, that all nursing care was the sole responsibility of the NHS and, therefore, it had not been open to the health authority to transfer responsibility for the applicant’s long-term general nursing care to the local authority and that the health authority’s eligibility criteria for long-term health care were correspondingly flawed.
For substantive legitimate expectation cases protection is only available in exception circumstances. The promise must only be made to a small group and the promise usually has to have the characteristics of a contract.
Criticisms of the decision are: The judges should issue judicial restraint. The powers have been given to ministers and therefore it is ultra vires for them to rule on this matter; How should a small group be identified? This is too broad and open to abuse; Out of the three outcomes (Wednesbury, procedural legitimate expectations and substantive legitimate expectations), the first and last are awfully similar and overlap. Is it necessary to have two closely related outcomes which want a similar objective?; and Judges do not have the required expertise to rule on such decisions.
Support towards the decision are: The judge followed previous judgments – such as ensuring the promise was clear and unambiguous, which in this case it obviously was; and It is hard to identify what overriding public interest there was – it appears to be purely financial.
Summarise the Re Loreto Grammar School’s Application (2012) case.
Facts: The School is a long established and successful grammar School in Omagh which, in common with many other schools in Northern Ireland, badly needed physical improvement. The previous Minister, Barry Gardiner, is alleged to have committed the Department for Education to provide £14.6 million to fund the construction of a new school building on the existing site of the School. However, the decision by the new Minister of Education Caitriona Ruanewas the refusal to honour what the School described as a pledge made by the previous Minister. The School argued that the Minister breached its substantive legitimate expectation that the Department would provide funding of £14.6m for the construction of a new school building on the existing site of the School. This expectation was alleged to be grounded on ten key documents or statements emanating from the Department.
The School also alleged a breach of a procedural legitimate expectation. The School had engaged with the Department in a formal process for capital funding since 1992. According to the School, it should have been properly consulted in advance of reaching the impugned decisions because of its legitimate expectation induced by the Department. It is further contended that the Department had acted for an improper purpose in that it was wrongly trying to compel the School to abandon its opposition to any transfer of the School to the site of the previous Lisanelly Barracks which had become surplus to Ministry of Defence requirements and was transferred free of cost to the Northern Ireland Executive.
On 25 March 2011, the Belfast High Court ruled that representations and actions by the DoE and the Minister of Education gave rise to a substantive legitimate expectation to Loreto Grammar School. The DoE’s commitment, which was not subject to any express or implied qualifications, was not fulfilled and the High Court held that the conduct of the Minister and the DoE was unfair and amounted to an abuse of power. The frustration of the school’s legitimate expectation could not be justified by any public interest and the Minister, when taking the decision not to provide the funding, failed to consider the school’s legitimate expectation. However, on appeal the Court of Appeal held that the DoE’s representations and actions did not give rise to a substantive legitimate expectation. It agreed with the DoE’s submission that the Minister’s 2004 pledge to provide the funding was an indication of the DoE’s plan or bona fide intention at the time. It could not be viewed as an unqualified pledge, with a pre-determined outcome, given the: Necessity for the school to satisfy the requirements of an acceptable economic assessment and plan; Execution of the project depended on the existence of funds; and the Project had to receive final approval before those funds would be released.
However, in Loreto, the Court of Appeal considered that the evidence fell short of establishing the type of clear unambiguous representations devoid of qualification that were required to give rise to a substantive legitimate expectation on the part of the school. It considered that the Luton decision, in which the High Court rejected the claimants’ arguments that they had a legitimate expectation that they would receive the necessary funding to deliver the disputed school building projects under the BSF programme, supported the DoE’s argument that no legitimate expectation could arise until the final approval of an application for funding. The Ministerial Statement in Loreto and the various statement and documents that emanated from the DoE fell short of giving rise to a promise and were subject to qualification. Therefore, the school had failed to establish it had a substantive legitimate expectation that was enforceable by legal redress.
Look at the following: Fairness v overriding interest? Here there appears to be an overriding interest; Small number of people affected? Arguably no – all the students in the school plus other schools due to receive funding; Is there a public interest not to frustrate?; and Other issues – financial. The annual budget changes, therefore they may no longer be able to provide that money.
