Legitimate Expectations

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The idea is that public bodies should act in ways that we might legitimately expect them to act

  • What is legitimate is determined by the court
  • E.g. we have a legitimate expectations our essays will be marked using the essay criteria

For example, if a public body makes you a promise about how it intends to decide the substantive matter (e.g. an application for social housing), would we not expect that public body to keep their promise?

  • Or, if a public body has treated individuals in a particular way for many years, would we not expect them to continue with that practice until notice is given of an intent to change?
  • Or, if a public body chooses to publish policy in respect of a matter within its discretion, would we not expect that public body to adhere to its own policy?

The law of legitimate expectations is concerned with all of these.

But it does not necessarily follow that a promise made, a practice established, or a policy published will always lead to its protection by the courts.

  • Occasionally the court recognises that the public body is entitled to change its mind to do something unpredictable or frustrates a legitimate expectations

Whether such an expectation is enforced is a question for the courts i.e. it is a legal question

R v IRC, ex parte MFK Underwriting [1990] 1 WLR 1545

The claimants (investors (and Lloyds of London underwriters)) sought assurances from the Inland Revenue (i.e. the tax man) on whether a particular type of security bond would be taxed as income or capital gain

  • The Inland Revenue (IR) made assurances that the financial product would be treated as capital gain for the purposes of taxation. IR later changed its mind and decided to tax the product as income.

The claimant said, in judicial review, that a change of practice by the IR was contrary to a legitimate expectation → the High Court dismissed this

  • General advice and guidance given by the IR on how financial products might be taxed in the future did not bind the IR to such advice.
  • In other words, the tax man could give general advice about how things might be taxed, but that does not bind them according to that process of those principles

The court found that to bind the IR to its own advice would be ‘unfair’(!)

  • This is odd because we usually associate fairness with fairness to the claimant, but here it is about the public body

Bingham LJ (as he then was) set out when a legitimate expectation would arise:

  • When the taxpayer has “put all his cards face upwards on the table;”
  • When “the ruling or statement relied upon [is] clear, unambiguous and devoid of relevant qualification.”
  • But also… “The doctrine of legitimate expectation is rooted in fairness. But fairness is not a one-way street. It imports the notion of equitableness, of fair and open dealing, to which the authority is as much entitled as the citizen.” → so it is FAIR for a public body to change their mind

R v IRC, ex parte Unilever [1996] STC 681

This case is about an established practice giving rise to legitimate expectations

For more than 20 years, the Inland Revenue accepted late claims for tax relief. Without giving notice, the Inland Revenue decided that it would no longer accept late claims. It was argued that the established practice of accepting late claims gave rise to an enforceable legitimate expectation, and the court agreed.

The claimant had good cause to expect an established practice to continue, because the repetition of the practice gave rise to a clear, unambiguous and unqualified expectation of a certain treatment

  • Notice must be given if they are going to suddenly change their mind
  • This is an important case demonstrating that legitimate expectation need not be just about specific promises or published policies, but can be about established practices

R (Bibi) v Newham LBC [2002] 1 WLR 237

The claimants were families who had arrived in the UK, and were provided with temporary accommodation by the local authority under the homeless provision. The local authority promised the families that they would be in secure, long-term accommodation within 18 months, because the local authority thought that they were obliged by law to make such an assurance (but they had made a mistake in the law).

  • It turned out that the local authority was under no such duty, and declined to treat the claimants more favourably than other families on housing waiting lists.

In judicial review, the High Court found for the claimants in requiring the local authority to be bound by its promise.

On appeal, the Court of Appeal allowed the council’s appeal in part: it would be unfair to require the council to be bound by a promise to provide accommodation where such a promise is on an erroneous understanding of the law. But the council should bear in mind that they had created a legitimate expectation in respect of these families when considering the allocation of available housing.

What would this mean in practice for Newham LBC?

  • The council will have to consider the fact that it once created a legitimate expectation of a secure tenancy within 18 months; this fact becomes a lawful consideration - one which the local authority must consider when allocating housing.
  • It is more likely, therefore, that the claimants will receive a secure tenancy sooner than would otherwise be the case.
  • But, regardless, the discretion to award housing to the family is still the local authority’s

The case also advances the point, discussed to a lesser extent in FK Underwriting, that reliance on a promise to the claimant’s detriment would be relevant in assessing the fairness one might attach to enforcing (or not) a legitimate expectation.

  • The family in the case had stayed in Newham relying on this promise expecting a house in 18 months, so they were acting according to this expectation and were acting to their detriment where this expectation was to be frustrated by the public body

R (Rashid) v Home Secretary [2005] EWCA Civ 744

The Home Office applied the wrong policy in rejecting a claim for asylum from an Iraqi Kurd. The correct policy applicable at the time of application explicitly excluded consideration of certain factors - factors which were cited as the reasons for the rejection of the asylum claim.

  • Even though the claimant was not aware of the relevant policy in place at the time, there was nevertheless an enforceable legitimate expectation that the Home Office would apply the correct policy.
  • In other words, the claimant has no knowledge of the policy so how can there be reliance? But, that doesn’t matter according to this case

It is perhaps uncontroversial to suggest that the Home Office is bound by its own policy-making in respect of immigration and asylum law—policy now freely and openly available on the website.

But the courts are also aware that asylum seekers and immigrants might not have access to relevant and good legal advice and information, so requiring the Home Office to apply their own policy correctly (even where the applicant himself is unaware of it) is acceptable to the court.

  • In other words, the court is mindful in this particular case that the disadvantage of the immigrant/asylum in respect to their access to legal knowledge should require the legitimate expectation to be enforced

Nadarajah v Home Secretary [2005] EWCA Civ 1363

This claim also involves asylum; however, this time two different Home Office policies applied and a conflict as to which of the two should be applied:

  • One policy required that claims from persons first entering the EU - into another member state - be assessed in that other member state only;
  • The other policy required that claims for asylum should be heard in the UK where there are existing family ties to the UK

In this case, the claimant arrived in the UK via Germany, yet argued that they had family ties to the UK. So should Nadarajah’s claim be hear in Germany or the UK?

  • The Home Office sought to rely on the first policy in seeking the claimant’s removal to Germany.
  • The claimant sought to rely on the second policy (which is about article 8 of the ECHR and a right to family life) in judicial review - that they had a legitimate expectation that the second policy would be enforced.

The claim failed, so the claimant was lawfully removed to Germany

  • For Laws LJ, the decisive point is whether the public body has, in frustrating the expectations of the claimant (i.e. in changing its mind), abused its power.
  • Laws LJ said that public law is quintessentially about what is fair and what is an abuse of power
  • Laws LJ: “Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so”

R v Education Secretary, ex parte Begbie [2000] 1 WLR 1115

The Government funded a number of places in private (fee-paying) schools, so that children who could not afford such schools had an opportunity to attend them.

  • The Labour manifesto of 1997 (i.e. Labour’s set of promises) sought to abolish this scheme of assisted places. However, assurances were made that children already receiving assistance would continue to receive assistance until the end of their schooling.
  • When Labour came to power, it enacted legislation abolishing the scheme. The claimant continued to receive assistance, but only until age 11 (the school educated students until age 18). The claimant brought judicial review proceedings on the basis that the pre-election commitment gave rise to an enforceable legitimate expectation of an assisted place until age 18.

The claim was rejected → there was no enforceable legitimate expectation arises where compliance with it would run counter to an Act of Parliament

  • Labour had acted almost immediately to abolish this assisted place scheme and any on-going assistance was really just a good will gesture (as it was not really authorised by law)
  • No pre-election promise can give rise to any legal effect - whether in legitimate expectations or otherwise

Wheeler v Office of the Prime Minister [2008] EWHC 1409 (Admin)

In 2004, Tony Blair signed the Constitutional Treaty (EU Constitution), and promised that a referendum will be held before ratification could take place. Following rejection in France and the Netherlands, the project to have an EU Constitution was abandoned. The Lisbon Treaty was later sought as a compromise (this gave effect to some aspects of the failed constitution)

When the Government refused to offer a referendum on ratification of the Lisbon treaty, Wheeler brought a claim in judicial review → the basis of the claim was a legitimate expectation that a referendum would be held in respect of the Lisbon Treaty

The claim failed:

  • To hold a referendum would be a political judgement (so is not suitable for court interference);
  • The law on ratification did not require a referendum;
  • And besides, the Lisbon Treaty was a different treaty to the EU Constitution.

Procedural or substantive benefit?

Perhaps all of the cases thus far could be read as giving effect (or not) to a procedural right:

  • It is a procedural right because certain policies would be operational (Rashid, Nadarajah)
  • That certain factors would be taken into account when deciding the substantive matter (MFK, Bibi, Begbie)
  • That a treaty would be ratified in a particular way (Wheeler)

But what if a promise is aimed at a substantive benefit, rather than merely a procedural benefit?

Perhaps the case of Bibi was an example of this: the promise of a secure tenancy within 18 months.

  • But did you see how the court preferred to deal with it? Not as substantive benefit, but as procedural benefit (that the promise should be taken into account when allocating future available housing)

Will the court ever enforce a legitimate expectation to a substantive benefit (in other words, a sum of money, housing etc.)?

  • Yes, but on a limited basis.
  • See, for example, the cases of Ex parte Coughlan and Rowland v Environment Agency

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R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213

The claimant was severely injured in a road traffic accident in 1971, and required care on an on-going basis. In 1993, she was asked to move to a new NHS facility, Mardon House, with a promise that Mardon House would be her home for life. In 1998, the health authority decided to close Mardon House on financial grounds.

In a claim for judicial review, the High Court quashed the decision to close Mardon House on the ground that Coughlan had been made a specific promise, and the defendant had not advanced an overriding public interest to break such a promise.

The health authority appealed, but the Court of Appeal rejected the appeal, affirming the High Court decision.

  • This is substantive because we are not talking about something that can be understood procedurally – she is seeking to live in Mardon House for the rest of her life i.e. a promise to provide accommodation for the rest of your life is a substantive benefit

For this substantive benefit of legitimate expectation to be enforced the usual requirements must be present:

  • The promise must be clear, unambiguous and unqualified promise (MFK);
  • Where the frustration of the promise would amount to an abuse of power (eg Nadarajah)
  • Where detrimental reliance would be present—although not strictly speaking necessary (Bibi, cf. Rashid)

But where the promise is for a substantive benefit, the promise must be:

  • Made to an individual or small class of persons;
  • Be really important to the claimant (a little vague, but something like proportionality is being invoked here); AND
    • On the first two point, the court remarked how the promise must be specific, and one for the benefit of a small set of known persons, such that the promise has the “character of a contract”
    • Telling Coughlan she can live in Mardon house for the rest of her life DOES appear to have the “character of a contract”
  • There must be no overriding interest to justify departure from the thing promised.
    • The court noted that the effect on the local authority by upholding this expectation are merely financial, so there is no overriding interest
    • The decision does not frustrate the health institution to decide its core policies, it just has some minor financial implications

Rowland v Environment Agency [2003] EWCA Civ 1885; [2005] Ch 1

This is another case where substantive benefits are being discussed

The claimant was an owner of an estate, through which the River Thames flowed. The claimant had thought that this stretch of the River Thames was private, with no rights of public navigation. The Environment Agency (and its predecessors) had, for many years, supported this view and facilitated the private use of this water. This was, however, an error.

When the Environment Agency realised its mistake, it sought to reopen the river for public use by taking down the claimant’s signs prohibiting public navigation. The claimant brought an action in the Chancery Division (not judicial review) seeking to assert his private right to the land. The Chancery Division affirmed the public rights of navigation over the water and issued a declaration to that effect. So the claimant lost

On appeal, the Court of Appeal varied the declaration.

  • Whilst the water was publicly navigable water, the Environment Agency should bear in mind that it once created a legitimate expectation (albeit erroneously) of private ownership.
  • In other words, by law the Thames IS public water, but the Environment Agency (being a public body) had once created the legitimate expectation it was a private stretch of the Thames

What does this mean?

  • The Court of Appeal’s judgement does not mean that the water is privately owned; it is still publically navigable as stipulated by law
  • But the Environment Agency, when carrying out statutory/public law duties in respect of this stretch of water, should bear in mind that it once created the impression of private ownership


Public bodies may, by their own actions, limit what they might lawfully do in the future by creating promises, practices or policies which give rise to enforceable legitimate expectations.

  • This is what is common in the cases looked at in these notes on legitimate expectation
  • We are looking at the situations where the court will give rise to a legitimate expectation because of the way a public body has acted

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