Cases and Materials on Constitutional and Administrative Law

The doctrine of legitimate expectation has been substantially enforced due to the recent case of Coughlan, concerning the closure of a nursing home promised as a home for life to the claimant. This case clarified the role of the courts in legitimate expectation cases, as it had previously been suggested that the courts may only interfere if it could be shown that a public bodies decision was Wednesbury unreasonable and irrational, therefore they could not interfere on the basis of fairness. However, Coughlan identified three new possible roles the courts could play in the event of determining a legitimate expectation.

The first role allows the public body to merely bear in mind previous policies and enforce them to the extent they see fit. The second role allows the court to identify whether the representation initiated a legitimate expectation worthy of procedural benefit. Under this test Jocasta would be entitled to a review of her case by the courts who would ultimately decide whether the revocation of BERS was procedurally fair. The third role played by the courts would be to establish whether the representation initiated a legitimate expectation worthy of a substantive benefit.

Conclusively, it was found in Coughlan that the main role of the courts in cases concerning frustration of alleged legitimate expectation is to achieve a balance between preventing an abuse of power by the public body, at the same time as protecting the interests of the public. Whilst it remains up to the public body to make lawful policy amendments, it is for the courts to decide whether a violation of an individual's expectation can be deemed so unfair as to constitute an abuse of power.

A further area of uncertainty is the appropriateness of awarding procedural or substantive protection and in what situation each should arise. Whilst it has been recognised by the courts that an expectation of procedural protection should be fulfilled, the expectation of substantive protection in terms of the individual continuing to receive a benefit merely has to be considered and there is no obligation to award a substantive benefit. This principle is recognised as a substantive legitimate expectation.

This expectation may occur when "a favourable decision of one kind or another is expected, where the applicant seeks a particular benefit or commodity"11. This has been regarded as an ambiguous principle due to some courts refusing to believe that it exists. However, the case of Ruddock clearly demonstrated that substantive legitimate expectation exists as procedural protection was not appropriate. 12 There is also a clear acceptance of the doctrine in the third role of the courts, identified in Coughlan as stated above, that a legitimate expectation of a substantive benefit could possibly give rise to protection of the benefit.

Furthermore, the principle was again recognised in R v Ministry for Agriculture, Fisheries and Foods, ex p Hamble13 in which Sedley J held that "it is for the courts to decide whether there is an overriding reason for frustrating the legitimate expectation"14. However, it was held in the case of Hamble that the legitimate expectation the claimant had that he may complete the transfer process, could not be relied upon as the policy only applied to those persons who had already completed when the policy came into action.

This is what happened to Jocasta who is clearly eligible to benefit from BERS, but the policy was revoked before her application could be processed. Based upon the precedent of Hamble, Jocasta is unable to ask for her situation to be judicially reviewed. In addition, the Court of Appeal in Coughlan defines an enforceable substantive expectation as being "where the expectation is confined to one person or a few people, giving the promise or representation the characteristics of a contract"15, which cannot apply to Jocasta because the minister presented a policy, not a promise.

Therefore, it is inconclusive whether Jocasta is eligible to seek judicial review, however, the evidence does suggest that it would not be available to her. Whilst there is some evidence to prove that she could argue a legitimate expectation, it is debatable whether the courts would review it due to the representation being a policy rather than a promise. However, her case does have the potential to be given reasonable consideration. Finally, this area of administrative law has presented the courts with many conflicting ideas, principles and cases, and the approach taken towards them sometimes lacks consistency.The case of Coughlan has greatly improved the scope of the area but undoubtedly it will remain controversial.

BIBLIOGRAPHY

Books: 1. Allen, M and Thompson, B. (2003) Cases and Materials on Constitutional and Administrative Law. Oxford, 7th Edition 2. Marston, J and Ward, R. (1997) Cases and Commentary on Constitutional and Administrative Law. Pitman Publishing, 4th Edition 3. Jackson, P and Leopold, P. (2001) Constitutional and Administrative Law. Sweet and Maxwell, 8th Edition. 4. Barnett, H. (2004) Constitutional and Administrative Law. Cavendish, 5th Edition. (referenced only)