Legitimate Expectations Cases

Legit Expectations Cases R v North and East Devon health Authority, ex p Coughlan Key: C, a tetraplegic, moved to hospital and told this could be her permanent home. Then wanted to move again. She sought JR. She won. (1) her nursing care had to be provided free by the NHS and could not be provided by the local authority on a means tested basis where appropriate, and (2) NEDHA was in breach of its promise by closing MH. NEDHA appealed. Held, dismissing the appeal, that (2) furthermore, with regard to the impending Human Rights Act 1998, the closure of MH was in breach of the European Convention on Human Rights 1950 Art.8 and also of a legitimate expectation brought about by NEDHA's own promise. The closure decision was unfair and could not be justified by an overriding public interest. [55-82] Legitimate expectation---the court's role 55 ...In the past it would have been argued that the promise was to be ignored since it could not have any effect on how the public body exercised its judgment in what it thought was the public interest. Today such an argument would have no prospect of success... 56 ... Here the starting point has to be to ask what in the circumstances the member of the public could legitimately expect. In the words of Lord Scarman in In re Findlay [1985] AC 318 , 338, "But what was their legitimate expectation?" Where there is a dispute as to this, the dispute has to be determined by the court, as happened in In re Findlay . 57 There are at least three possible outcomes. * * * 1. The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more - here the court is confined to reviewing the decision on Wednesbury grounds. 2. court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 ) 3. Where the court considers that a lawful promise induced a legitimate expectation of a benefit which is substantive . 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. 59... In many cases the difficult task will be to decide into which category the decision should be allotted... 60 ... facts of this case as coming into the third category. Our reasons are as follows. First, the importance of what was promised to Miss Coughlan (as we will explain later, this is a matter underlined by the Human Rights Act 1998); second, the fact that promise was limited to a few individuals, and the fact that the consequences to the health authority of requiring it to honour its promise are likely to be financial only. The authorities 62 ..But in relation to a legitimate expectation of a substantive benefit (such as a promise of a home for life) doubt has been cast upon whether the same standard of review applies. Instead it is suggested that the proper standard is the so-called Wednesbury standard which is applied to the generality of executive decisions. This touches the intrinsic quality of the decision, as opposed to the means by which it has been reached, only where the decision is irrational or (per Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 , 410) immoral. 63 This is not a live issue in the common law of the European Union, where a uniform standard of full review for fairness is well established: see Schwarze, European Administrative Law (1992), pp 1134-1135 and the European Court of Justice cases reviewed in R v Ministry of Agriculture, Fisheries and Food, Ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714 , 726-728. It is, however, something on which the Human Rights Act 1998, when it comes into force, may have a bearing. 65 The court's task in all these cases is not to impede executive activity but to reconcile its continuing need to initiate or respond to change with the legitimate interests or expectations of citizens or strangers who have relied, and have been justified in relying, on a current policy or an extant promise. The critical question is by what standard the court is to resolve such conflicts. 66 In the ordinary case there is no space for intervention on grounds of abuse of power once a rational decision directed to a proper purpose has been reached by lawful process. The present class of case is visibly different. It involves not one but two lawful exercises of power (the promise and the policy change) by the same public authority, with consequences for individuals trapped between the two. The policy decision may well, and often does, make as many exceptions as are proper and feasible to protect individual expectations. The departmental decision in Ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714 is a good example. If it does not, as in Ex p Unilever plc [1996] STC 681 , the court is there to ensure that the power to make and alter policy has not been abused by unfairly *245 frustrating legitimate individual expectations. 67 

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