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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Alansi, R (on the application of) v London Borough of Newham  EWHC 3722 (Admin) (27 November 2013)
Cite as:  WLR(D) 117,  EWHC 3722 (Admin),  PTSR 948
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of Alansi
|- and -
|London Borough of Newham
Christopher Baker (instructed by LB of Newham Legal Services Department ) for the Defendant
Hearing dates: 13 November 2013
Crown Copyright ©
Mr Justice Stuart-Smith:
Legitimate Expectation - the Applicable Principles
"Clear, unambiguous and devoid of relevant qualification"
"Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract."
The Categories of Legitimate Expectation
"18 The case law is replete with words such as "legitimate" and "fair", "abuse of power" and "inconsistent with good administration". When reading the judgments care needs to be taken to distinguish analytical tools from conclusions which encapsulate value judgments but do not give any indication of the route to those conclusions.
19 In all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or by promise, committed itself; the second question is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do. This formulation of the questions is we think a more helpful way of approaching the problems in this type of case than the fivefold question adopted during argument. …"
"I think it superficial to hold that for a legitimate expectation to bite there must be something more than failure to honour the promise in question, and then to list a range of possible additional factors which might make the difference. It is superficial because in truth it reveals no principle. Principle is not in my judgment supplied by the call to arms of abuse of power. Abuse of power is a name for any act of a public authority which is not legally justified. It is a useful name, for it catches the moral impetus of the rule of law. It may be, as I ventured to put in Begbie, "the root concept which governs and conditions our general principles of public law". But it goes no distance to tell you, case by case, what is lawful and what is not."
"It is first, I think, convenient to identify, at least in broad categories, various of the distinct senses in which the phrase 'legitimate expectation' is nowadays used.
(1) Sometimes the phrase is used to denote a substantive right: an entitlement that the claimant asserts cannot be denied him. It was used in this sense and the assertion upheld in cases such as R v Secretary of State for the Home Dept, ex p Khan  1 All ER 40,  1 WLR 1337 and R v Secretary of State for the Home Dept, ex p Ruddock  2 All ER 518,  1 WLR 1482. … These various authorities show that the claimant's right will only be found established when there is a clear and unambiguous representation upon which it is reasonable for him to rely. Then the administrator or other public body will be held bound in fairness by the representation made unless only its promise or undertaking as to how its power would be exercised is inconsistent with the statutory duty imposed upon it. The doctrine employed in this sense is akin to estoppel. In so far as the public body's representation is communicated by way of a stated policy, this type of legitimate expectation falls into two distinct sub-categories: cases in which the authority are held entitled to change their policy even so as to effect the claimant, and those in which they are not. …
(2) Perhaps more conventionally the concept of legitimate expectation is used to refer to the Claimant's interest in some ultimate benefit which he hopes to retain (or, some would argue, attain). Here, therefore, it is the interest itself rather than the benefit that is the substance of the expectation. In other words the expectation arises not because the claimant asserts any specific right to a benefit but rather because his interest in it is one that the law holds protected by the requirements of procedural fairness; the law recognises that the interest cannot properly be withdrawn (or denied) without the claimant being given an opportunity to comment and without the authority communicating rational grounds for any adverse decision. …
(4) The final category of legitimate expectation encompasses those cases in which it is held that a particular procedure not otherwise required by law in the protection of an interest, must be followed consequent upon some specific promise or practice. Fairness requires that the public authority be held to it. The authority is bound by its assurance, whether expressly given by way of a promise or implied by way of established practice."
The Test to be Applied
"(c) 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 an 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
In the case of the third, the court has when necessary to determine whether there is sufficient overriding interest to justify a departure from what has been previously promised …
Nevertheless, most cases of an enforceable expectation of a substantive benefit (the third category) are likely in the nature of things to be cases where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract."
"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. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public.
Accordingly a public body's promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body's legal duty or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the Judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances.
This approach makes no distinction between procedural and substantive expectations. Nor should it. The dichotomy between procedure and substance has nothing to say about the reach of the duty of good administration. Of course there will be cases where the public body in question justifiably concludes that its statutory duty (it will be statutory in nearly every case) requires it to override an expectation of substantive benefit which it has itself generated. So also there will be cases where a procedural benefit may justifiably be overridden. The difference between the two is not a difference of principle. Statutory duty may perhaps more often dictate the frustration of a substantive expectation. Otherwise the question in either case will be whether denial of the expectation in the circumstances proportionate to a legitimate aim pursued. Proportionality will be judged, as it is generally to be judged, by the respective force of the competing interests arising in the case. Thus where the representation relied on amounts to an unambiguous promise; where there is detrimental reliance; where the promise is made to an individual or specific group; these are instances where denial of the expectation is likely to be harder to justify as a proportionate measure. They are included in Mr Underwood's list of factors, all of which will be material, where they arise, to the assessment of proportionality. On the other hand where the government decision-maker is concerned to raise wide-ranging or "macro-political" issues of policy, the expectation's enforcement in the courts will encounter a steeper climb. All these considerations, whatever their direction, are pointers not rules. The balance between an individual's fair treatment in particular circumstances, and the vindication of other ends having a proper claim on the public interest (which is the essential dilemma posed by the law of legitimate expectation) is not precisely calculable, its measurement not exact."
"In some cases a change of tack by a public authority, though unfair from the applicant's stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker which they cannot wear….
As Wade and Forsyth observe (Administrative Law, 7th Ed. (1994), p. 404):
"Ministers' decisions on important matters of policy are not on that account sacrosanct against the unreasonableness doctrine, though the court must take special care, for constitutional cases, not to pass judgment on action which is essentially political"
In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players. Here, with respect, lies the importance of the fact in the Coughlan case  2 W.L.R 622 that few individuals were affected by the promise in question. The case's facts may be discrete and limited, having no implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes. In such a case the court's condemnation of what is done as an abuse of power, justifiable (or rather, falling to be relieved of its character as abusive) only if an overriding public interest is shown of which the court is the judge, offers no offence to the claims of democratic power."
"As Professor Craig makes clear in his perceptive discussion of this topic in Craig, Administrative Law, 4th Edition (1999), ch 19, it is important to recognise that there is often a tension between several values in these cases. A choice may need to be made as to which good we attain and which we forego. There are administrative and democratic gains in preserving for the authority the possibility in the future of coming to different conclusions as to the allocation of resources from those to which it is currently wedded. On the other hand there is a value in holding authorities to promises which they have made, thus upholding responsible public administration and allowing people to plan their lives sensibly. The task for the law in this area is to establish who makes the choice of priorities and what principles are to be followed."
"There is first an overall point to be made. It is that both these types of legitimate expectation are concerned with exceptional situations (see Lord Templeman in Preston at 864; compare ABCIFER  QB 1397 per Dyson LJ at paragraph 72). It is because their vindication is a long way distant from the archetype of public decision–making. Thus a public authority will not often be held bound by the law to maintain in being a policy which on reasonable grounds it has chosen to alter or abandon. Nor will the law often require such a body to involve a section of the public in its decision-making process by notice or consultation if there has been no promise or practice to that effect. There is an underlying reason for this. Public authorities typically, and central government par excellence, enjoy wide discretions which it is their duty to exercise in the public interest. They have to decide the content and the pace of change. Often they must balance different, indeed opposing, interests across a wide spectrum. Generally they must be the masters of procedure as well as substance; and as such are generally entitled to keep their own counsel. All this is involved in what Sedley LJ described (BAPIO  EWCA Civ 1139 paragraph 43) as the entitlement of central government to formulate and re-formulate policy. This entitlement - in truth, a duty - is ordinarily repugnant to any requirement to bow to another's will, albeit in the name of a substantive legitimate expectation. It is repugnant also to an enforced obligation, in the name of a procedural legitimate expectation, to take into account and respond to the views of particular persons whom the decision-maker has not chosen to consult."
"… it is not necessary for a person to have changed his position as a result of such representations for an obligation to fulfil a legitimate expectation to subsist; the principle of good administration prima facie requires adherence by public authorities to their promises. … I would however add a few words by way of comment … as in my judgment it would be wrong to understate the significance or reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation." [Emphasis added]
"In our judgment the significance of reliance and of consequent detriment is factual, not legal. In Begbie's case both aspects were in the event critical: there had been no true reliance on the misrepresentation of policy and therefore no detriment suffered specifically in consequence of it. In a strong case, no doubt, there will be both reliance and detriment; but it does not follow that reliance (that is, credence) without measurable detriment cannot render it unfair to thwart a legitimate expectation."
i) Where a person asserts a legitimate expectation to enforce what amounts to a substantive right based upon a promise or assurance by a public authority, the authority's statement must be clear, unambiguous and devoid of relevant qualification;
ii) Where a public authority has made statements to an individual that are said to give rise to a legitimate expectation, the Court should ascertain the meaning which the authority's statements would reasonably convey to that person in the light of all the background knowledge which he or she had in the situation in which he or she was at the time that the statements were made;
iii) Where a person is relying upon a promise or representation by a public authority as giving rise to a substantive right, the Court will not be limited to a Wednesbury irrationality test but will be required to consider whether the public authority has struck the correct balance between the public interest and the interests of the person relying on the promise or representation;
iv) The test to be applied is whether frustrating the Claimant's expectation is so unfair that to take a new and different course will amount to an abuse of power. Once the expectation has been established, the court must weigh the requirements of fairness against any overriding interest relied upon for the change of policy. Both procedural and substantive unfairness may be taken into account when applying this test;
v) Reliance and detriment are not essential pre-requisites to a finding of unlawful abuse of power but their presence (or absence) may be taken into account in deciding where the balance of fairness lies and whether the authority has acted unlawfully;
vi) The Court should give due weight to the proper role of public authorities as agents of change and as being responsible for the adoption and implementation of policies that are in the public interest even though they may conflict with the interest of private individuals, including those to whom assurances have been given;
vii) Being afforded priority under a housing allocation scheme is no guarantee of being awarded permanent accommodation either at all or within any particular timescale.
"Domestic housing policy has been a continuing subject of discussion and debate in Parliament over very many years, with the competing interests of landlords and tenants fully represented, as also the public interest in securing accommodation for the indigent, averting homelessness and making the best use of finite public resources. The outcome, changed from time to time, may truly be said to represent a considered democratic compromise."
Note 1 I.e. the third catgory i.e. category (c) referred to immediately above. [Back]
Note 1 I.e. the third catgory i.e. category (c) referred to immediately above. [Back]