UK: Legitimate Expectation

Hillingdon Case (R (London Borough of Hillingdon) v Secretary of State for Education and Skills [2007] EWHC 514 - 15 March 2007 - Forbes J)

Take Hillingdon. Here the Authority owed a duty (amongst other things) under section 23C(1) of the Children Act 1989 to provide after-care services to any person who has been 'looked after' by the Authority over a prescribed period of time before their 18th birthday. Before the decision of Sullivan J in R (Behre) v Hillingdon (2003) EWHC 2075 (judgment 29 August 2003) it had been thought that these provisions didn't apply to former unaccompanied asylum seeking children (UASC) who had received services from the Authority as children in need under section 17 of the 1989 Act (general local authority duty to safeguard and promote as prescribed the welfare of children in need in their area). However, following the Behre decision it became clear that all relevant local authorities must also provide after-care services to eligible former UASCs under the provisions of the 1989 Act. This essentially comprises a comprehensive after-care service for former relevant children to ease their passage into adulthood and the authority is obliged to provide this until the relevant child reaches 21 - and also beyond this where applicable.

Hillingdon's legitimate expectation argument arose in relation to a marked reduction in the grant paid by the Secretary of State for Education and Skills to mitigate the effects of the Behre decision. The grant was made under section 31 of the Local Government Act 2003 which enables a minister of the Crown to pay grant to a local authority in England towards actual or prospective expenditure. However, the amount of grant and the manner of its payment 'are to be such as the person paying it may determine'. So it's for the Secretary of State to call the shots, subject to the usual public law principles.

The Council submitted that the Secretary of State's decision to reduce the grant had calamitous effects upon it. In particular this caused a funding shortfall of £3.7m for 2005/2006 which resulted in dramatic cut backs in key services. Hillingdon was particularly vulnerable to the UASC issue since it has Heathrow Airport in its area. Consequently the Council argued that the decision of the Secretary of State was unlawful (amongst other things) in that in breached the Council's legitimate expectation that the grant in question would provide the Council with a level of funding support comparable to that in the preceding financial year.

Principles of Legitimate Expectation

Forbes J noted that the doctrine of legitimate expectation provides that where a public authority has made a promise or adopted a practice that represents how it proposes to act in a given area, fairness requires that the promise or practice should be honoured unless there is a good (i.e. an overriding) reason not to do so. In order to found a legitimate expectation, (per Bingham LJ in R v IRC ex parte MFK Underwriting (1990) 1 WLR 1545)) the conduct or representation must be 'clear, unambiguous and devoid of relevant qualification'. And (as highlighted in material previously circulated by me) Laws LJ set out the relevant principles in Nadarajah v Secretary of State for the Home Department (2005) EWCA Civ 1363 which Forbes J indicated were to the following effect:

1. 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;
2. a public body's promise or practice as to future conduct may only be denied in circumstances where to do so is the public body's legal duty or is otherwise a proportionate response, having regard to a legitimate aim pursued by the public body in the public interest; and
3. this approach makes no distinction between procedural and substantive expectations, though statutory duty may more often dictate the frustration of a substantive expectation.

The Court in the instant case therefore pointed out in the light of Nadarajah that where a public authority's promise or conduct has given rise to a legitimate expectation, the public authority may refuse to fulfil that expectation only either:

1. where it is subject to a legal duty to so; or
2. where the departure constitutes an objectively proportionate means to achieve a legitimate aim.

However, the Council failed in its claim since in all the circumstances the Court considered that the Authority had: '. . .no proper basis. . . for believing that the funding formula adopted for the 2004-05 UASC leaving care grant would remain unchanged for 2005-06 by reference to any promise (express or implied) or adopted practice of the Secretary of State or to any clearly stated policy to that effect.'

Consequently, Forbes J was satisfied that there was 'no express or implied promise or adopted practice on the part of the Secretary of State during the relevant period that is capable of giving rise to the legitimate expectation upon which Hillingdon relies'.

At one time you could be had up for breach of promise of marriage. That was until section 1 of the Law Reform (Miscellaneous Provisions) Act 1970 came harrumphing along to put a stop to all that sort of thing. And in any event a simple promise isn't usually actionable: have some consideration! But a promise given by a public body can give rise to public law implications. For the doctrine of fairness may require the promise to be honoured unless there's a jolly good (for which read legally sustainable) reason not to do so. So, as they're wont to say in the highest circles: 'Watch your mouth!' For if you don't you could find yourself concreted into the foundations of an expensive legal action.

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