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
Citing:
Appeal from – Regina 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 . .
Cited – Western 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 . .
Cited – Regina 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:
Cited – Bloggs 61, Regina (on the Application of) v Secretary of State for the Home Department CA 18-Jun-2003
The applicant sought review of a decision to remove him from a witness protection scheme within the prison. He claimed that having been promised protection, he had a legitimate expectation of protection, having been told he would receive protection . .
Cited – Sporting Options Plc, Regina (on the Application Of) v Horserace Betting Levy Board Admn 31-Jul-2003
The claimant sought judicial review of the rate of levy set by the respondent, saying that they operated a new kind of system which was treated unfairly.
Held: The procedure followed in settling the levy was unsatisfactory. The claimant would . .
Cited – I-CD Publishing Ltd v The Secretary of State, The Information Commissioner (Interested Party) Admn 21-Jul-2003
The claimant sought judicial review challenging the restrictions on the sale of electoral registers to registered credit reference agencies. Following Robertson (1) the new regulations created two registers, and the claimant sought to be able to . .
Cited – Watts, Regina (on the Application of) v Bedford Primary Care Trust and others Admn 1-Oct-2003
The claimant sought hip-replacement treatment. She was first told that she would have to wait a year. As her lawyers pressed the respondent, she looked at obtaining treatment in France. As she decided to take the treatment, the respondent reduced . .
Cited – North West Lancashire Health Authority v A D and G CA 29-Jul-1999
A decision not to fund gender re-assignment surgery was operated as a blanket policy without proper regard for individual cases and so was unlawful as an effective fetter on the discretion which the Health Authority was obliged to exercise. A lawful . .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – Rowland v The Environment Agency CA 19-Dec-2003
The claimant owned a house by the river Thames at Hedsor Water. Public rights of navigation existed over the Thames from time immemorial, and its management lay with the respondent. Landowners at Hedsor had sought to assert that that stretch was now . .
Cited – Mullen, Regina (on the Application of) v Secretary of State for the Home Department HL 29-Apr-2004
The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely . .
Cited – Capenhurst and Others, Regina (on the Application Of) v Leicester City Council Admn 15-Sep-2004
The applicants, representatives of voluntary organisations, challenged decisions of the local authority to withdraw their funding, saying the decision making process had been unfair.
Held: Even if it was not bound to consult, if the authority . .
Cited – Rashid, Regina (on the Application Of) v Secretary of State for Home Department Admn 22-Oct-2004
The claimant sought asylum, being an Iraqi Kurd. He was not told by the defendant of its policy not to require internal relocation within the Kurdish autonomous zone. The policy had been applied for the benefit of others, as was revealed only in . .
Cited – Regina 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 . .
Cited – Rashid, 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 . .
Cited – Regina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
Cited – Grogan, Regina (on the Application of) v Bexley NHS Care Trust and others Admn 25-Jan-2006
The claimant was elderly and in need of care in a nursing home. She claimed that her care needs had been assessed by an unlawful protocol applied by the health authority. She said that she qualified under the criteria for Continuing Health Care.
Cited – Rogers, 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 . .
Cited – Lindley, 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 . .
Cited – Eisai Ltd, Regina (on the Application of) v National Institute for Health and Clinical Excellence (NICE) and Shire Pharmaceuticals Limited and Association of the British Pharmaceutical Industry (Interveners) CA 1-May-2008
The applicant pharmaceutical companies challenged the decision of the National Institute for Clinical Excellence (NICE) to to list certain drugs saying that the procedure adopted was unfair. NICE had revealed that results of calculations it had made . .
Cited – Edwards, Regina (on the application of) v Environment Agency HL 16-Apr-2008
The applicants sought to challenge the grant of a permit by the defendant to a company to operate a cement works, saying that the environmental impact assessment was inadequate.
Held: The Agency had been justified in allowing the application . .
Cited – Green, Regina (on the Application of) v South West Strategic Health Authority Admn 28-Oct-2008
The claimant said that whilst resident in a care home, her care should have been paid for as health care under ‘Continuing Health Care.’ She said that the decision maker had failed to comply with the Health Authorities guidelines.
Held: In . .
Cited – Oxfam v Revenue and Customs ChD 27-Nov-2009
The charity appealed against refusal to allow it to reclaim input VAT. It also sought judicial review of the decision of the Tribunal not to allow it to raise an argument of legitimate expectation. The charity had various subsidiaries conducting . .
Cited – Grimsby Institute of Further and Higher Education, Regina (on The Application of) v Learning and Skills Council Admn 12-Aug-2010
The applicant had applied to the respondent for funding for new buildings. The application was approved, but the application was rejected when the respondent ran out of funds. The claimant said that a legitimate expectation had been created, and . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – London Borough of Lewisham and Others), Regina (on The Application of) v Assessment and Qualifications Alliance and Others Admn 13-Feb-2013
Judicial review was sought of the changes to the marking systems for GCSE English in 2012.
Held: The claim failed. Though properly brought, the failure was in the underlying structue of the qualification, and not in the respondent’s attempts . .
Cited – Save Our Surgery Ltd, Regina (on The Application of) v Joint Committee of Primary Care Trusts Admn 7-Mar-2013
The claimants sought judicial review of the report prepared by the defendants under which departments providing childrens’ heart surgery at their regional hospital would close. They complained that the consultation had been inadequate and flawed. . .
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
Cited – Badger Trust, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs Admn 29-Aug-2014
The respondent had carried out the first round of a badger cull, subject to supervision and reporting by an independent expert panel. Promoises were made, the claimant said, that the panel’s role would be maintained for any subsequent round. The . .
Cited – Birks, Regina (On the Application of) v Commissioner of Police of the Metropolis Admn 25-Sep-2014
The claimant police officer sought judicial review of a decision to continue his suspension. He had been investigated and cleared after a death in custody. He sought to join the Church of England Ministry and was offered a post. He was re-assured . .
Cited – Moseley, Regina (on The Application of) v London Borough of Haringey SC 29-Oct-2014
Consultation requirements
The claimant challenged a decision of the respondent reducing the benefits under the Council Tax Reduction Scheme reducing Council Tax for those in need, saying that the Council’s consultation had been inadequate.
Held: The consultation was . .
Cited – A and B, Regina (on The Application of) v Secretary of State for Health SC 14-Jun-2017
The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled . .
Cited – Forge Care Homes Ltd and Others, Regina (on The Application of) v Cardiff and Vale University Health Board and Others SC 2-Aug-2017
The court was asked who is legally responsible for paying for the work done by registered nurses in social rather than health care settings. Is the National Health Service responsible for all the work they do or are the social care funders . .
Cited – Gallaher Group Ltd and Others, Regina (on The Application of) v The Competition and Markets Authority SC 16-May-2018
No Administrative Duty of Equal Treatment
Extent and consequences of duties of ‘equal treatment’ or ‘fairness’, said to have been owed by the Office of Fair Trading to those subject to investigation under the Competition Act 1998. The respondent had entered negotiations with several parties . .
Cited – Finucane, Re Application for Judicial Review SC 27-Feb-2019
(Northern Ireland) The deceased solicitor was murdered in his home in 1989, allegedly by loyalists. They had never been identified, though collusion between security forces and a loyalist paramilitary was established. The ECHR and a judge led . .
Lists of cited by and citing cases may be incomplete.
Health, Local Government, Administrative
Leading Case
Updated: 16 January 2022; Ref: scu.146786