Breach of legitimate expectation: an unambiguous promise
Sioned Wyn Roberts and Toby Vanhegan comment on the role of legitimate expectation in a successful judicial review involvng a domestic violence survivor and her child
Using an under-deployed legal argument that a local housing authority was in breach of legitimate expectation, we recently successfully represented a client in a claim for judicial review on behalf of a domestic abuse victim.
In The Queen (on the application of C) v London Borough of Waltham Forest, it was argued that not only was the authority in breach of legitimate expectation, but it also contravened its allocations policy and the statutory duty to promote the best interest and welfare of a child pursuant to section 11 of the Children Act 2004.
Facts in brief
The claimant (C) is a lone parent and was fleeing severe domestic violence from a one-bedroom property where she held a secure tenancy that had been granted to her when she was pregnant. The domestic violence continued and she was forced to flee to a refuge.
C did not wish to lose her secure tenancy but was considered by a multi-agency risk assessment conference (MARAC) “at risk of homicide” by remaining at home with her child.
She sought an emergency transfer and the housing authority referred her case to its panel for a decision, in accordance with its housing allocations and transfer policy. That policy also stipulated that C ought to be awarded a two-bedroom property, based on the current number of people in her household.
Evidence was put before the panel from domestic violence advocates to support the emergency transfer; and further evidence was provided by a child psychologist to support the argument that C’s child required her own bedroom as the housing-related stress was causing her to self-harm.
The panel, which included a social worker, made a decision and notified her in writing that she would receive an emergency management transfer to a “two-bedroom like for like” property. This decision was also notified to Hodge Jones & Allen as her solicitors. The decision carried an internal right to review should C be dissatisfied with this decision. No review was sought as C was happy with this decision.
A U-turn or an error?
However, Waltham Forest later made C an offer of a one-bedroom property. The offer warned C that were she to refuse this then she would lose her entitlement to an emergency transfer.
C maintained that the decision of the panel was to offer her a two-bedroom property. We argued in pre-action correspondence that she had a legitimate expectation that the authority would comply with both its decision and the housing allocations policy.
In response, the authority argued that the inclusion of the wording “two-bedroom” in the decision was a mistake and a mere ‘typo’ and that it was clear the wording “like for like” referred to bedroom size and ought to have read “one-bedroom”. The authority refused to withdraw that offer and instead offered to accept a late review of the panel decision by means of an alternative remedy.
C did not wish to seek a review of the panel decision because she agreed with it. Accordingly, this action would not provide her with the remedy she sought.
C maintained that the wording of the unambiguous decision, specifically the inclusion of “two-bedroom like for like” clearly meant that she would be offered a two-bedroom property.
A claim for judicial review was brought on the following grounds:
1. That the offer of the one-bedroom property was unlawful as it was in breach of her legitimate expectation that she would be offered a two-bedroom property in accordance with the panel decision.
2. The offer of the one-bedroom property was unlawful and was made in breach of the authority’s own allocations policy that stipulated she ought to receive an offer of a two-bedroom property.
3. The offer of the one-bedroom property was in breach of the child’s best interests pursuant to section 11 of the Children Act 2004, based on the evidence that was before the panel relating to the child’s need for their own bedroom.
Following the issue of the claim, the local authority agreed to withdraw the offer of the one-bedroom property and offer a suitable two-bedroom home. The claim was settled on this basis.
The doctrine of legitimate expectation has been developed as a ground of judicial review in administrative law to protect a procedural or substantive interest in the event a public body rescinds from a representation made to a person. It is based on the principles of natural justice and fairness and seeks to prevent public bodies from abusing their power.
For a legitimate expectation to arise, the public body's statement must be clear, unambiguous and without qualification.
When utilising the breach of legitimate expectation as a ground for judicial review, many housing lawyers often overlook this in favour of the traditional Wednesbury grounds. However, this case highlights that where a local housing authority make a promise of a benefit, then takes the benefit away, this is an abuse of power.
We have shown that it can and should be used in instances within our community, such as this one, which would have had a huge impact on the mental wellbeing of the family and their quality of life.
A simplistic approach
We identified the doctrine of legitimate expectation as a potential ground from the outset of C’s case during a call to discuss how to best approach the challenge to the offer of the one-bedroom property C had received.
As housing and public lawyers, we took a fairly simplistic view that C arguably has a legitimate expectation that she would be made a direct offer of a two-bedroom property because:
• A public body had made a decision in writing as to how they would comply with its statutory obligations to allocate social housing.
• That decision in respect of the bedroom award was clear and there could be no ambiguity as to this aspect of the decision. Two bedrooms meant two bedrooms.
• C had no reason to believe that the decision letter meant anything other than what it said. There was no suggestion of any clerical or administrative error in the letter.
• C relied upon the two-bedroom statement because she did not request a review. She did not want a review. She was happy with the two-bedroom award.
• The award of two bedrooms was consistent with the authority’s housing allocation scheme.
• It was procedurally unfair and an abuse of power for the authority to offer a one-bedroom flat instead.
Clear and unambiguous
However, while we considered that the wording of the decision “two-bedroom like for like property” was clear and unambiguous, the authority took a different view.
It argued that the wording “like for like” was ambiguous and that C could not have a legitimate expectation that the authority would offer her a two-bedroom property when the decision was unclear. While we had taken the view that “like for like” in this context had meant the tenancy status (ie a secure tenancy for a secure tenancy), the local authority argued that it meant one-bedroom for one-bedroom.
We considered that any such defence to the claim would be unsuccessful as is it ignores the words "two-bedroom" before the phrase "like for like property". By including the bedroom size before the words “like for like”, it meant that the phrase "like for like property" was not referring to the bedroom size of the current property, because otherwise those words would have been unnecessary.
The phrase "like for like property" must, therefore, be referring to something other than the bedroom size, such as the security of tenure, the type of accommodation (for instance, house or flat) or the floor level.
We sought to overcome the claim being defended on this basis by explaining in the grounds for the claim for judicial review, that the use of the phrase “like for like” does not make it clear C would receive an offer of a one-bedroom – especially in light of the fact that the decision is clear about two-bedrooms and that this is consistent with the authority’s allocation scheme.
We also sought to overcome the claim being defended on the basis that the inclusion of the wording “two-bedroom” was a typographical or administrative error, by arguing that C was unaware that it was; and that an award of a one-bedroom property cannot be a typographical error for an award of a two-bedroom property.
In order for grounds of legitimate expectation to arise in a claim, the promise relied upon must be made without qualification. In this case, C relied on a promise which had been notified to her by a formal written decision.
There was no issue in this case that the promise was made without qualification.
In the case of a breach of legitimate expectation, the court may quash a decision made in breach of the legitimate expectation and grant injunctive relief against breaching the legitimate expectation
From a practical point of view, if you are seeking a quashing order, it is sensible to also consider seeking a mandatory order that the authority must then comply with its promise/decision.
Where a claim might fail
Finally, as a general reminder for practitioners, the threshold for the court to interfere with the decisions and powers of a public body is high. So, a claim may fail where:
• The promise is not clear and is, in fact, ambiguous.
• If the claimant is relying upon something that is qualified, for example guidance that is subject to change and is not binding on the public body.
• If there is an overriding public interest in allowing the public authority to go back on a promise.
• If the promise is made by a person on behalf of the public body with no authority to give that promise.
Sioned Wyn Roberts is an associate at Hodge Jones & Allen hja.net
Toby Vanhegan is a barrister at 4-5 Gray’s Inn Square 4-5.co.uk