Long term patients of health trust agreed to be moved to a new building because they were told they could stay there till they died and wouldn’t have to move again. The health trust decided to close the building later on because it was too expensive to run, and the patients applied for substantive protection of their LE under judicial review, which the court granted. CA said that if a public body exercising a statutory function made a promise as to how it would behave in the future which induced a legitimate expectation of a benefit which was substantive, rather than merely procedural, to frustrate that expectation could be so unfair that it would amount to an abuse of power; that, in such circumstances, the court had to determine whether there was a sufficient overriding interest to justify a departure from what had previously been promise. This is the balancing exercise of Sedley J in a new form.
Lord Woolf MR: There are 3 possible outcomes in assessing how much protection to give to LEs: (1) The courts may require the PA simply to bear in mind previous representations, so as to avoid Wednesbury unreasonable decisions, giving the representation such weight as they think fit- see ex p Hargreaves; (2) The courts may find merely LEs that the parties concerned would be consulted/ allowed to make representations, which will be enforced unless there is some overwhelming policy consideration that merits overriding this, taking into account the demands of fairness; or (3) “Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive , not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”
NB the narrow interpretation of Hargreaves so as to avoid a direct clash- this creates a new problem of deciding whether a case falls into category one or three. Also, rather than introduce a new standard of judicial review-overriding public interest-why not simply use proportionality to achieve a higher degree of protection for substantive expectations.