types of legitimate expectations
procedural - e.g. of a consultation
substantive - receiving a particular benefit / not losing a benefit / not suffering a detriment
what generates a legitimate expectation
promise / past practice / policy
promise
Liverpool Taxi Fleet - promise that Operator’s Association would be consulted when increasing number of taxi licences
ex parte Coughlan - ‘home for life’
past practice
GCHQ - past practice of consulting the unions
Unilever - twenty-year practice of allowing late claims for tax relied
policy
Khan - official guidance on policy on overseas adoption gave rise to legitimate expectations
Mandalia - public authorities required to comply with their policies in the absence of good reason not to do so - this is considered a free-standing ground separate from legitimate expectations
what kind of representation?
MFK - for legitimate expectations to arise, the representation needs to be ‘clear, unambiguous and devoid of relevant qualifications’
Bancoult - HOL held that the Secretary of State for Foreign & Commonwealth Affairs did not give clear and unambiguous representation
detrimental reliance
Geraldine Finucane - SC has clarified that despite earlier case law suggesting otherwise, it is not necessary that a claimant suffer some detriment for (procedural) LE
however, detrimental reliance is relevant in assessing whether departure from promise / practice / policy is justified
justifying departure from LE
Coughlan - “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 the change of opportunity”
Nadarajah - “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 proportionate measure in these circumstances”
factors
extent of the detrimental reliance
what is being promised
size of the affected group - the smaller the size of the group, the harder it is for the decision-maker to depart from its representations
the two stages applied - Finucane
had a LE arisen?
“the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so”
was the expectation unlawfully frustrated?
no - the decision was ‘macro-political’
legitimate expectations & relevant considerations - Bibi
the housing authority had assured the applicant that if would provide permanent housing in the mistaken belief that it was legally obliged to do so - the decision maker was taken account of the assurance given in making their decision on housing allocation
legitimate expectations & relevant considerations - Tesco Stores
however, matters of weight are left to the decision-maker subject to rationality review
