Regina v North and East Devon Health Authority ex parte Coughlan and Secretary of State for Health Intervenor and Royal College of Nursing Intervenor: CA 16 Jul 1999

Consultation to be Early and Real Listening

The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were in need of only ‘general’ rather than ‘specialist’ nursing services and that these should be purchased by the local authority rather than provided by the NHS. So the health authority decided to close the home and transfer their long-term care to the local authority.
The need for nursing care for a chronically sick person might be primarily a health or a social services need, and either a health authority or a social service authority might be responsible for the care provision, and if the local authority is responsible, then a charge might be made. However where the need of a patient was primarily for health care as such, it was wrong for the health authority to seek to transfer responsibility to the local authority.
The court set out three categories of legitimate expectation, including substantive entitlement, and procedural unfairness.
Lord Woolf MR said: ‘To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken . . It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this.’
Lord Woolf discussed the doctrine of legitimate expectation, saying: ‘the doctrine of legitimate expectation has emerged as a distinct application of the doctrine of abuse of power’, and ‘Legitimate expectation may play different parts in different aspects of public law. The limits to its role have yet to be finally determined by the courts . . And without injury to the Wednesbury doctrine it may furnish a proper basis for the application of the now established concept of abuse of power . . Once it is recognised that conduct which is an abuse of power is contrary to law its existence must be for the court to determine.’ and ‘it is for the court to say whether the consequent frustration of the individual’s expectation is so unfair as to be a misuse of the authority’s power.’
and ‘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 . . 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 the 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.’

Lord Woolf MR
Times 20-Jul-1999, Gazette 11-Aug-1999, [1999] EWCA Civ 1870, [1999] EWCA Civ 1871, [2001] 1 QB 213, [1999] Lloyds LR 305, (2000) 51 BMLR 1, (1999) 2 CCL Rep 285, [2000] 3 All ER 850, (2000) 2 LGLR 1, [1999] BLGR 703, [2000] 2 WLR 622, [1999] Lloyd’s Rep Med 306
Bailii, Bailii
National Health Service Act 1977
England and Wales
Appeal fromRegina v North and East Devon Health Authority ex parte Coughlan Admn 11-Dec-1998
There had been no transfer to Social Service Authorities of the Health Services’ statutory duty to provide specialist nursing and related care to the elderly, and having made a promise to provide a home for life, the Health Authority would be held . .
CitedWestern Fish Products Ltd v Penwith District Council and Another CA 22-May-1978
Estoppel Cannot Oust Statutory Discretion
The plaintiff had been refused planning permission for a factory. The refusals were followed by the issue of Enforcement Notices and Stop Notices. The plaintiff said that they had been given re-assurances upon which they had relied.
Held: The . .
CitedRegina v Brent London Borough Council ex parte Gunning 1985
The demands of fair consultation procedures will vary from case to case and will depend on the factors involved. The requirements are: ‘First, that consultation must be at a time when proposals are still at a formative stage. Second, that the . .

Cited by:
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CitedNorth West Lancashire Health Authority v A D and G CA 29-Jul-1999
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CitedRegina v Secretary of State for the Home Department, Ex Parte Hindley HL 30-Mar-2000
The prisoner, sentenced to life imprisonment with a whole life tariff for the murders of children, now appealed against the imposition of the whole life tarriff.
Held: The appeal failed. It was possible for a Home Secretary to set a whole life . .
CitedRashid, Regina (on the Application of) v Secretary of State for the Home Department CA 16-Jun-2005
The Home Secretary appealed against a grant of a judicial review to the respondent who had applied for asylum. The court had found that two other asylum applicants had been granted leave to remain on similar facts and on the appellants, and that it . .
CitedRegina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
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CitedRogers, Regina (on the Application of) v Secretary of State for Health Admn 15-Feb-2006
The claimant suffered breast cancer. She sought treatment from the defendant with a drug called Herceptin, and now sought judicial review of the refusal of such treatment. Various stages in the licensing of the drug were yet to be completed. It was . .
CitedLindley, Regina (on the Application of) v Tameside Metropolitan Borough Council Admn 21-Sep-2006
The claimant, aged 69 suffered from cerebral palsy. The council had provided his care but he said they had represented to him that care would be provided in a new facility, and claimed a legitimate expectation. The defendant said that its changed . .
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CitedLumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
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CitedLondon Borough of Lewisham and Others), Regina (on The Application of) v Assessment and Qualifications Alliance and Others Admn 13-Feb-2013
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Health, Local Government, Administrative

Leading Case

Updated: 16 January 2022; Ref: scu.146786