Promises, promises

In the first in a two-part series David Sykes analyses recent developments in relation to substantive legitimate expectations.

‘Where a local 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.' [1]

Abstract

This article is the first of a two part series. This article deals with promises made by public bodies’ with specific reference to local authorities and the emerging doctrine of substantive legitimate expectations. It explores the essential ingredients of a substantive legitimate expectation as arising from judicial judgments and academic studies [2]. In doing so contributions, not only from these sources in England and Wales, but other jurisdictions, including Ireland and Commonwealth countries, are considered. [To download a pdf of the the article click on the symbol above]

The second follow on article to be published in a few weeks deals with how the courts approach substantial legitimate expectation challenges made against local authorities, including questions of deference and decision making involving macro political and economic issues. The overhaul purpose of paper two is to look at notions of fairness in public law in the context of substantive legitimate expectation challenges specifically in a local government context - how can they be defeated? The nature of the public interest and polycentric decision-making by local authorities is explored. The second article will conclude with practical steps to avoid or diminish the likelihood of successful substantive legitimate expectation claims, including due diligence in document vetting, standing orders and the extent exculpatory clauses can be used.

Substantive legitimate expectations [3]

Legitimate expectations may arise both in a procedural or substantive sense or be a combination of both. A local authority may have committed itself to complying with a particular procedure before deciding a matter, such as consultation, but later reneges from that assurance. It is true to say that legitimate expectations triggered by procedural rights are well settled and are encompassed to a large extent by inclusion of the rules of natural justice and public law rules. Legitimate expectations where substantive concrete benefits arise is not so settled; it is an area that is developing, but courts and academics alike find difficulty in establishing a coherent framework. This difficulty it will be evident is caused by the inherent structure itself, being a public law concept that resembles in many ways the private law of promissory estoppel. Throughout both articles the term promisor will be used for local authorities as the institution making the promise and promisee for the person or group to whom the promise is made.

Before proceeding further it is necessary to dispense with a few, but necessary matters that arise when dealing with substantive legitimate expectations. Firstly, only legitimate expectations are covered: this inevitable means that only lawful representations will be covered and not those of an ultra vires nature. [4] This qualification can obviously cause problems to the promisee, since they may have no knowledge that the source of the representation had no such lawful power, as would be the case where a council official makes a promise that is outside his authority: private law agency rules of ostensible authority do not save the representation from failing. In addition local authorities cannot bind themselves to do that for which they have no statutory authority. The justification for this approach is that to hold otherwise would amount to allowing the decision-maker to unconstitutionally expand the limits of their statutory powers ]5] Secondly, it is vital to understand that legitimate expectation is not a legal entitlement - it is not an enforceable right. In this way it is fundamentally different from the rights bestowed under the promissory estoppel doctrine.

It goes without saying that promises are valuable in a number of ways, including personal and business relations, including the relationship between citizens and organs of government, such as local authorities. The value of promises is that they produce trust - by doing so they facilitate social co-ordination and co-operation. Citizens in a locality are more likely to observe rules made by their local authority, if they know that its local democratic body does not, without valid reason, renege on promises made, whether individual assurances or those forming part of a policy. It is therefore vital to know what a local authority has committed itself i.e. the nature of the promise and to whom made. The specificity of the expectation is now explored.

Specificity of the promise

The nature of the representation may be expressly or implied communicated and can be made orally or in writing (letters, e-mails and circulars). The mode of communication is not central, but case law illustrates that the breadth of persons/groups affected is important. Allowing group interests to challenge a local authority’s decision raises its own particular challenge of identifying the class of persons affected. The proximity of the relationship to the promisor is important, e.g. whether by a direct promise (oral/correspondence), policy circular or implied by longstanding practice). R (on the application of Alansi) v Newham LBC, which is discussed below, is authority for the fact that assurances given in standard documents that stood outside the formal terms of the council’s policy made no difference when considering whether a defendant local authority’s change of position amounts to an unlawful abuse of power. [6] In everyday contact between local authorities and their service users, such as service delivery areas of planning, [7] housing and social welfare many promises may be given and the vital question for local authorities is to be able to identify when such a promise is of a sufficient nature to trigger an actionable cause and how to prevent it.

‘Almost Contract like’

The courts have clothed the promise/expectation with the ‘character of a contract’ (Lord Woolf in Coughlan [8]); there must be a commitment which can be characterised as a ‘promise.' [9] The inevitable consequence of adopting a contractual-like framework opens the door to potential use of exclusion clauses: this is discussed in article two. Reference to contract law may be misleading, but nevertheless judicial language has used such phrases. Clearly, we are not talking about contract law elements of offer and acceptance, supported by consideration and capacity. However, as substantive legitimate expectation deals with obligations there is a sense of reciprocal consideration. We shall meet later the seminal case of Coughlan, where there was clear reciprocal consideration displayed by Miss Coughlan. For example, in relying on the health authority that she would have a ‘home for life’ she agreed to their proposals. The same may be attributed to a housing client who has relied upon an express promise by a local authority housing officer that after a certain defined period that applicant would move up the housing list or into a more preferential category. In such circumstances, the disappointed promisee has displayed consideration, not in monetary terms, but emotional stress. The need for reliance and detriment is discussed below.

It is acknowledged that not every expectation can be met in legal terms and fairness by the public body, if one recognises the amount and levels of administrative decisions local authorities have to take each day - this factor dictates that some boundaries to the doctrine must apply. One such delineation is that the law will only protect those expectations which have arisen through administrative conduct, and not those which have arisen as a result of an individual’s subjective hopes. As Professor Kuklin states:

they are to be distinguished from conative inclinations such as desire, hope, want and wish. [10] Administrative law ‘is concerned with upholding trust in the administration, rather than protecting expectations which the individual has decided to entertain at his own risk [11]

A pious hope, even leading to a moral obligation, cannot amount to a legitimate expectation. Conceptualising ‘lawful’ promises is therefore essential. The courts have therefore decided that a representation must have a ‘character of a contract’ about it. What do the Courts mean by this expression? i.e. The expectation must be legitimate. And therefore ultra vires representations are not covered.

If consideration is required clearly none was provided in Coughlan, unless one includes suffering detriment, under that term, although in this respect Lord Woolf writing extra judicially with Jeffrey Jowell [12] have argued that substantive unfairness doctrine does not require proof of detriment, but rather its presence proves additional evidence as to the nature of the representation. Stuart-Smith J in a recent case [13] quoting Lord Hoffman in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No: 2) [14] confirmed what now seems to be the accepted position of the necessity of a contractual type representation:

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 [15]

In Zequiri v Secretary of State [16] Lord Hoffman articulated that a representation's clarity must be considered in the context in which it is made. The author considers this to be a much fairer approach than insisting upon a very rigid formalistic approach that requires a neatly packaged contractual law framework. Zequiri illustrated a move away from this rigid requirement suggested in R v Board of Inland Revenue ex p MFK Underwriting Agencies Ltd (‘MFK’) [17] that an expectation based on an individual promise must originate in a clear and unambiguous way, although one may confine this to the context of a tax case. Lord Hoffman said:

The question is not whether it would have founded an estoppel in private law, but the broader question of whether …….a public authority acting contrary to the representation would be acting with conspicuous unfairness and in that sense be abusing power

Munby J in R (Charlton) v Secretary of State [18] made the same point that a representation for the purposes of a legitimate expectation claim need not be of the same ‘high degree’ of clarity contemplated by Bingham LJ in MFK. [19] Justice Munby’s remarks may however be considered obiter, since the court held that there was no clear or unequivocal statement that the relevant policy (about adopting children from Cambodia) would not be suspended.

An unlawful representation in public law will not bind the local authority. [20] Unlike private estoppel law there is no room to save the representation on the basis of an agency argument of actual, implied or ostensible authority. Promises or assurances are of course very much part of a contractual set up. Charles Fried, [21]argued that a promisor was morally bound to keep his promise and by extension his contract because he has ‘intentionally invoked a convention whose function is to give grounds-moral grounds-for another to expect the promised performance.’

For a substantive legitimate expectation to be triggered there must be some form of promise or undertaking. The promise may take different forms, [22] but it must contain a clear and unequivocal statement. This is an area of great uncertainty. Court judgments place emphasise on the need to look at the whole of the communication, whether a letter, circular [23] or internal guidance memos in construing the assurance. [24] Guidance may be from an internal or external source. Construing promises in internal guidance also illustrates a similar lack of uniformity in judicial approach, as illustrated by two cases in 2011. In The Queen (on the application of Elayathamb) v The Secretary of State for the Home Department [25] Sales J construed a Home office circular as giving general guidance as to how the system works, rather than creating specific expectations. Compare R (Jackson) v DEFRA. [26] As Daniel Kolinsky states ‘The relevant issue may be whether the guidance contains a prescriptive instruction as opposed to a general explanation. But much will depend on how the judge in question characterises the statement.' [27]

Often the recipient of a ‘promise’ by local authorities falls within a socially deprived class and involves, for example, welfare and housing benefits. This type of beneficiary is vulnerable to excessive state power and we shall observe that the doctrine of substantive legitimate expectation can offer protection to such deprived sections of a community, with the acknowledged caveat that the judging of social rights is often a contentious exercise. For local authorities, therefore what they say in their communications is of paramount importance, if litigation is to be avoided on the grounds of the promise of a substantive benefit. Information to service users must be presented in a clear and unambiguous way. [28] Dissemination of information must be done in such a way that the widest service user audience is reached, including those who may suffer some form of disability, which presents them receiving such knowledge: for example, blind, illiterate or simply those persons whose mother tongue is not English.

The courts insistence on a ‘clear and unambiguous representation’ has received scholarly criticism by Jack Watson. The motive of the representor is not a material factor - what counts is the reaction of the promisee. Jack Watson [29] argues that the underlying principle is the voluntary assumption of responsibility that comes from analysing a promise as a social convention, presumably, on the basis that keeping ones promises is good for society in general and not just on a personal level. Whilst promises and their construction are important they are not the end of the matter in a substantive legitimate expectation challenge for it is clear that the size of the beneficiary class to whom the assurance is directed is also of major importance.

Size of the beneficiary class

Case law indicates that in the context of decision making in public law the size of class/beneficiary numbers is an extremely important indicia. It raises the question in our context of whether a statement contained in council literature could ever be relied upon by a group class of council tax payers/service users or will the class be considered too large? On strict moral grounds it is hard to see why there should be any such distinction, if the core of the concept of legitimate expectation is considered to be trust and protection of persons from public bodies reneging on their promises. More to the point from a legal aspect the breadth of the class affected by a decision, arguably, is not necessarily correlated to the question whether the public body has abused its powers when making the decision. Indeed, if the courts are concerned with abuse of public power then surely the wider the class adversely affected the more serious is the abuse. Managing large numbers of people under generalised rules is a concern for the immigration and tax authorities, and arguably more so in the context of local government service delivery, with the vast range of services and players involved. Coughlan however indicated that the class size is a highly relevant factor in English law, where substantive legitimate expectation challenges are made.

Coughlin is such a seminal case in the development of substantive legitimate expectation that it behoves us to look at that case from the question being considered of class size. Miss Pamela Coughlan had been rendered tetraplegic by a severe road accident. She lived in a care facility operated by the NHS acting through the Exeter Health authority. She and a small group (a significant factor as we shall see latter in substantive challenges) had agreed to move from their current home in Newcourt Hospital, Exeter (where she had lived for 21 years) to Mardon House, which was a purpose built facility for disabled persons on the basis of a number of direct specific representations by senior officials of the local health authority that they could live at Mardon House ‘for as long as they chose.’ The health authority eventually decided to close Mardon House for practical, clinical and financial reasons and sell it and to move the patients into community care facilities. The decisions were made against the backdrop of a new care policy that preferred to move patients away from institutional care and into community care. She sought a review of the decision to close Mardon House and succeeded. The Court of Appeal in a unanimous judgment to which all members contributed, [30] upheld Miss Coughlan’s challenge.

The court noted that the health authority had failed to appreciate the essence of the expectation Miss Coughlan had relied upon, which was not the continuing funding aspect, but rather to be able to stay at Mardon House, as a home for life. The authority had commissioned a report which acknowledged the existence of the assurances given and thus this promise factor was weighed by them in their decision-making process, alongside their other legitimate considerations.

Hidden J, at first instance based his decision on the fact that the health authority had treated its undertaking merely as a promise to provide care, whereas he construed it as a specific promise to provide care specifically at Mardon House. Coughlan illustrates both the importance of the precise terms of the ‘promise’, to whom it is made and the context within which it is made. These elements are of paramount significance:-

i. the importance of the content of the promise to Miss Coughlan

ii. the particular promise was limited to a few people only

iii. keeping to their promise only involved the health authority in fiscal aspects. Professor Christopher Forsyth considers this ground suspect. [31]

The essence of the judgment was that the local health authority had not established an overriding public interest to justify thwarting the promise. Their failure to do so constituted unfairness amounting to an abuse of power. The counter public interest argument being that an assurance to a small number of residents should not be allowed to inhibit sensible and lawful adjustments to welfare provision, if new service ideas or financial stringency made that necessary. This is a powerful argument as regards local authority service delivery and questions of resource allocation, especially today where alternative business models are formulated to alleviate serious cuts to services and reductions in funding revenue.

The Court of Appeal, in Coughlan gave a clear signal that it was judicially permissible to weigh public and private interests in a way which could open up illegitimate infringement of the separation of powers principle. This case undoubtedly pushed the boundaries of the substantive legitimate expectation concept, because it drew the court directly toward the final stage of decision-making and therefore its substance. Deciding the degree or level of unfairness and a tipping point is a difficult exercise. Once the claimant establishes the legality of the expectation a local authority must identify any overriding interests on which it can rely to frustrate that expectation. The court will then weigh the requirements of fairness against the overriding interest(s) and demand objective justification that the measures used were proportionate in the circumstances. Counsel, Robert Gordon structured his argument on the basis that fairness is not merely aspirational, but operates as a clear limit on executive action. The court will show deference where the local authority provides evidence that its refusal or failure to honour the expectation was justified in the public interest and that it had carefully considered both the substance of the issue and fairness concerns as high relevant factors in its decision-making process.

Laws LJ said in Niazi, a case involving a local authority that: [32]

the number of beneficiaries of a promise for the purpose of such an expectation, in reality it is likely to be small, if the court is to make the expectation good

Laws LJ continued the same theme in R (on the application of Nadarajah) v Secretary of State for the Home Department [33] and stated:

‘The case’s facts may be discrete and limited having no implications for an innominate class of persons’

Why this limitation applies from an equitable perspective is difficult to understand outside of line drawing by the courts. Whilst this statement may be correct in a large number of actions, there is precedent for class numbers to be significantly high. [34] In AG of Hong Kong v Ng Yuen Shui’  [35] the size of the group affected played a role (discussed by scholars) [36] where the Privy Council acknowledged that a statement which is published can enable the benefit to be claimed by the class of people specifically affected by the statement, albeit large in number. The Courts do seem to view class size as a form of concept boundary control in their adjudication process. It appears you are less likely to win your case if the class size is too large, despite there being some contrary precedents. [37] This enables the court to draw a distinction between traditional public law approach and a right’s based one. In a recent case R (C) v Westminster City Council [38] substantive legitimate expectation was found where-

• few individuals were affected by it;
• it did not have any wide ranging issues;
• the importance of what was promised was significant; and
• it only led to financial consequences for the local authority.

This case, notwithstanding being unreported and arguable fact-specific is still of importance, because it sends out a salutary warning to local authorities about the crucial importance of carefully expressing offers of provision.

That size of class matters seems to indicate that the distinction is not about fairness as such, otherwise the bigger the class the greater the unfairness. On an equitable rationale, if unconscionability is the core of legitimate expectation doctrine then the extent of the number of persons affected should not be a consideration, unless line drawing and public interest factors demand attention. Further, concentrating on the number of individuals affected by the expectation is in the author’s opinion a very uncertain yardstick.

An additional factor is the constitutional position of the courts, who must comply with the boundaries between the roles of the legislature, executive and judiciary. This overlap was recognised in R (Bibi) v Newham LBC [39] where Lord Justice Schiemann stated:

‘The court, even where it finds that the applicant has a legitimate expectation of some benefit, will not order the authority to honour its promise where to do so would be to assume the powers of the executive. Once the court has established….an abuse of power in the sense of a failure to consider a legitimate expectation it may ask the decision maker to take the legitimate expectation properly into account in the decision making process‘

It is this aspect of deference, the courts not assuming the powers of the executive that has received increasing disapproval. Bibi is difficult to reconcile with precedent and an approach based on the balancing test, because it implies that all that is required by a local authority is to consider the expectation before deciding to frustrate it. [40] The defendant council had promised the claimants (who were refugees and accepted by the council as unintentionally homeless in respect of their statutory housing obligations and had been provided with temporary accommodation) permanent housing within eighteen months, which did not materialise. Newham mistakenly thought that they had a statutory duty, but in fact enjoyed a decision-making discretion. The Court of Appeal held that the law requires that any legitimate expectations be properly taken into account in the decision making process and that it had not been in the present case and therefore Newham BC had acted unlawfully. The appropriate remedy was to remit the matter back to the local authority upon a duty imposed on it to take into account the application for housing put forward by the applicants on this basis.

‘Estoppel like’-relationship with private law doctrine of estoppel

I consider that there is a third underlying rationale for the legitimate expectation doctrine, namely unconscionability. Are there links with equitable concepts? Robert Thomas [41] remarks:

Lord Templeman has stated that unfairness by a public authority would amount to an abuse of power if it were equivalent to a breach of contract or a breach of representation’, [42] while Stuart-Smith LJ has remarked that the principle of legitimate expectations has many similarities with the private law principle of estoppel. [43]

I argue that the essence of legitimate expectation is the notion of unconscionability - not keeping one's promises. Fifteenth century equity enforced promise keeping, so far as this accorded with ‘reason and conscience.’ [44] Both common law and equity have developed estoppel doctrines to give effect to not keeping a promise. Estoppel is an equitable concept that emphasises equity’s core nature of concentrating on conscience. The public law doctrine of legitimate expectations undoubtedly has correlations with the private law doctrine of estoppel. I consider that a different language of description does not alter the basic root of both doctrines, which is to prevent unconscionability. An unfair or abusive promise has no legitimacy and therefore is not to be respected.

The origin of legitimate expectation in English Law may appear to be unclear, but it may assist in helping to understand the true essence of the legitimate expectation doctrine to briefly explore the origins of the doctrine. Many have attributed the concept of legitimate expectation in English jurisprudence, particularly to Lord Denning, whereas Forsyth refers to the German concept of Vertrauenschutz [45] and its emphasis on the protection of trust and felt that its use in English administrative law was a good example of cross fertilisation between different legal systems. The doctrine of legitimate expectation can be seen as the outcome of synthesis between the administrative principles of administrative fairness (a component of the principles of natural justice) and the rule of estoppel. It has paved the way for the development of a broader and more flexible doctrine of fairness. Attribution to Lord Denning is disputed by some. [46] However, whether the origins of the concept of legitimate expectation came from the fertile legal mind of Lord Denning in Schmidt [47] or a continental source, what is important is that the concept is rooted in principles of trust, and has great potential to protect the rights of vulnerable citizens, especially in the field of public law, which touches many aspects of human rights and social law.

There are of course major limitations of applying private law estoppel reasoning in public law litigation acknowledged by the fact that an estoppel could not be raised to hinder the performance of a statutory duty. [48] Estoppels were said by Professor Margaret Allars to offend the rule against fettering discretion. [49] This rule goes back to an 1883 English case [50] that established that an administrator cannot enter into an agreement or give an undertaking that fetters the future exercise of a discretionary power or the performance of a statutory duty. I term this the ‘traditional’ approach, whereby local authorities must exercise a statutory power for the public’s benefit and not an individual’s benefit. To do so would force a public body by estoppel to exercise a power for the benefit of the person asserting the estoppel, rather than the general public, and this is impermissible. [51] The ambit of this traditional approach is seen in Southend-on-Sea Corporation v Hodgson (Wickford) Ltd. [52] I agree with Joshua Thomson who states:

If the traditional rule is given full credit, then it suffocates all estoppel by representation in public law. However, such authority as exists seems to indicate that public law estoppel extends upon or is analogous to private law estoppel [53]

In Capital Care Services UK Ltd v The Secretary of State for the Home Department [54] the appellants, as part of their argument referred to the doctrines of estoppel by representation and estoppel by convention, to which Laws LJ replied:

whatever the scope of application of these doctrines to the exercise of public functions by public authorities, they cannot confer any greater rights on the appellants than they might enjoy by force of the public law principles of legitimate expectation [55]

There has however been no attempt (thus far) to draw out a general principle from the various forms of private law estoppel that can itself be applied directly and independently in public law. My view is that promissory estoppel and not proprietary estoppel [56] claims are more frequent in public law challenges. Lord Denning [57] spoke of the estoppel doctrine, as one with many rooms and that ‘each room is used differently from the others’. My opinion is that there is a clear link however between estoppel and legitimate expectation on the basis that the bedrock of the principle is that it would be unconscionable or inequitable for the representor to go back on his word and deny what he has represented or agreed. Whether it is a private law or public law action it is basically unfair to break promises, albeit that unfairness may be justified by strict proof of public interest considerations; this is a feature examined in article two. Under English law estoppel can be used as a basis for a cause of action, provided the factors found by Michael Spence [58] are present. Those determinates differ little from what is required to launch a challenge based on substantive legitimate expectation.

It is argued that there is nothing inherent in the nature of estoppel that should tie it exclusively to a private law function, and that public law estoppel must be based on analogous private law principles and not on some unique public law doctrine. In fact private law estoppel by representation is based on considerations of justice and fairness; such considerations are as equally valid in public law, unless as we shall see public policy or the interest of the public necessitates adjustment. The basic purpose of private law estoppel is to prevent a person unconsciously departing from a representation upon which another had relied, where departure from this representation would cause detriment to the other party. It is however acknowledged that the focus in private law is on protecting the individual from unconscionable conduct, whereas in public law it is, after a judicial balancing exercise, ultimately to protect the public interest.

A ‘balancing view’ of estoppel balances the harm to the public in general against the specific harm to the individual. It has been suggested [59] that estoppel can be allowed to fetter the exercise of a ‘public’ power, where to do so would occasion little harm to the public interest, and not to allow estoppel would cause greater detriment to the individual. This approach obviously has potential problems as highlighted by Thomson:

the balancing view involves the court engaging in policy judgments. The court would have to weigh the harm caused to an individual if estoppel were not allowed, against the public detriment if it were allowed. A court is ill equipped to do this. It would have to make a decision without being aware of the full extent of the injustice estoppel would cause to the public; because the public would not, and probably could not, be heard by the court. This is a practical reason against the balancing approach [60]

I understand the merit of this argument but, do not consider producing evidence of the effect on the public insurmountable, especially where individual rights are concerned. It may be that it is incorrect to weigh a private expectation against the public interest in legal certainty, in the overall pursuit of fairness. Paul Reynolds states:

‘We are balancing the representee’s trust against legal certainty, and we will be aware that deciding against substantive protection may mean that trust gets damaged.' [61]

However, it is acknowledged that its application in public law suffered a severe blow in the Reprotech case, [62] where there was a clear recognition that acting in the wider public interest is not unconscionable or unfair. In planning applications to a local authority there are often multi layered interests involved and replies (oral and written) given by planning officers' in the course of the planning process may constitute a substantive legitimate expectation arising: this area has generated a lot of litigation against local authorities. [63]

We might now legitimately ask whether we have arrived at a conclusion, where, as Steele puts it:

this concocted legitimate expectation expands the doctrines boundaries to the point where it simply collapses into an unrestricted principle of fairness: the doctrine ceases to add anything in its own right - it is denuded…of any utility [64]

In other words the continuum is distorted. Does the court’s adjudication in some substantive legitimate expectation (including human rights) claims mean that we are moving towards a merits review approach, leaving the decision-maker no (or little) margin of appreciation or discretion on matters of fact or public policy? The answer is in general no; Judges are not free to second-guess administrators on the merits of their policies. The respective roles of judges and administrators in a democratic society, and their competences are fundamentally distinct. Stricter scrutiny and the suggested abandonment of the Wednesbury principle need not mean that the courts will be entitled to ignore the limitations in competence of their own constitutional role.

Reliance and Detriment

To what extent are these factors considered judicially relevant when promises made in the context of local government? Bibi referred to above is authority for the court’s approach in this area. Reliance was considered present but without concrete detriment. Laws L J stated:

‘We use the phrase because there is moral detriment, which should not be dismissed lightly, in the prolonged disappointment which has ensued; and potential detriment in the deflection of the possibility for a refugee family, of seeking at the start to settle somewhere in the United Kingdom where secure housing was less hard to come by. In our view these things matter in public law, even though they may not found an estoppel or actionable representation in private law, because they go to fairness and through fairness to possible abuse of power. To disregard the legitimate expectation because no concrete detriment can be shown would be to place the weakest in society at a particular risk. [65]

While detrimental reliance (though not monetary loss or anything equivalent) will normally be required, I consider the approach of Laws L J to be correct when he states:

There is no hard and fast rule about reliance’, which is ‘in principle no more than a factor to be considered in weighting the question whether denial of the expectation is justified' [66] reliance was however, identified by Peter Gibson L J as being an important factor when a substantive legitimate expectation claim is made. [67]

It is important to understand that this is a contentious area and there are much conflicting judicial dicta. For example in R (Rashid) v Home Secretary [68] involving an Iraqi kurd asylum seeker, although the claimant was unaware of the policy overlooked by the Home Office (of not relying on internal relocation in such cases) it was found to be ‘conspicuous unfairness’ amounting to an abuse of power and the challenge succeeded. Pill L J significantly stated:

Whether the claimant knows of the policy is not in the present context relevant. It would be grossly unfair if the court’s ability to intervene depended at all upon whether the particular claimant had or had not heard of a policy especially one unknown to relevant Home Office officials' [69]

It may be that the sensible and practical approach is to adopt the approach of Professor Christopher Forsyth who states:

After all where no trust has been reposed in the promise or undertaking of the official there is no reason why any subsequently discovered ‘expectation’ should be protected. [70]

The paradigm case [71]

• A clear and unambiguous lawful promise;
• relating to a defined and limited subject matter;
• directed to a limited and identifiable class of persons;
• who are directly and peculiarly affected by the subject matter of that promise;
• Have relied upon that promise to their detriment.

David Sykes is a former local government solicitor who is studying for a PhD at the University of Essex. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..