Bibi

R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607

BAILII judgment

Locate in the network

Parties and outcome

Claimant

Manik Bibi and Ataya Al-Nashed (respondents)

Defendant

London Borough of Newham (appellant)

Outcome

Mixed result: Newham’s appeal was allowed in part. The original declaration was replaced with a duty to reconsider the housing applications on the basis of the applicants’ legitimate expectations of secure accommodation.

Citations in this work

Cited by

• Nadarajah

  Paragraph 56

  56.In Bibi v Newham LBC [2002] 1 WLR 237 the applicants were refugees who had been accepted by the respondent council as unintentionally homeless for the purposes of its obligations under the housing legislation and been provided with temporary accommodation. They sought to rely on a promise which the council had made to provide secure accommodation within 18 months. The promise had been given under a misapprehension as to the authority's statutory function: they believed they owed a duty, but in fact enjoyed a discretion. In judicial review proceedings the applicants complained of the council's failure or refusal to abide by its promise. They succeeded at first instance but the council's appeal was allowed in part. Giving the judgment of the court, Schiemann LJ as he then was said this: "19 In all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or by promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do. … 29 [After citing part of Peter Gibson LJ's judgment in Begbie including the passage on reliance which I have set out] In the light of this, we respectfully adopt what Professor Craig has proposed in this regard in Craig, Administrative Law, 4th ed, at p 619 [Mr Husain told us that this passage is replicated in the 5th edition, page 652 sub-paragraph 6]: 'Detrimental reliance will normally be required in order for the claimant to show that it would be unlawful to go back on a representation. This is in accord with policy, since if the individual has suffered no hardship there is no reason based on legal certainty to hold the agency to its representation. It should not, however, be necessary to show any monetary loss, or anything equivalent thereto.'

• Bancoult (No 2)

  Paragraph 135

  135.The basis of the jurisdiction is abuse of power and unfairness to the citizen on the part of a public authority: see Coughlan, para 82. On this basis it has been held that two factors, both present in the case before the House, tend to show that there has not been an abuse of power. The first is when the authority changes its policy on sufficient public grounds. If there is an overriding public interest behind its change of policy, it will not be an abuse of power: Coughlan, para 57; R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR 1115, 1130-1131. The second factor is whether the claimant has relied on the promise or representation, in particular whether he has thereby suffered any detriment. The Court of Appeal has affirmed the necessity for this. In Begbie Peter Gibson LJ said at 1123-1124 that it would be "wrong to understate the significance of reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation." Cf also R (Bibi) v Newham London Borough Council [2002] 1 WLR 237, 246, where the court adopted at para 29 the statement in Craig, Administrative Law, 4th ed, p 619 that "detrimental reliance will normally be required." If it could be said, contrary to my opinion, that the press statement of 3 November 2000 did contain a sufficiently clear and unambiguous promise or representation, these factors would militate against affording a remedy to the Chagossians.

  Paragraph 178

  178.The approach in Coughlan has been applied and considered in subsequent Court of Appeal authorities, particularly R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR 1115, R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607; [2002] 1 WLR 237 and R (Nadarajah and Abdi) v Secretary of State for the Home Department [2005] EWCA Civ 1363. The judgments in all of these authorities are helpful in illuminating the issues. In Ex p Begbie Laws LJ (drawing on para 60 of Lord Woolf's judgment in Coughlan) underlined the importance that may attach to whether the decisions in question affect only a few individuals or involve wide-ranging questions of general policy, moving into the "macro-political" field, where judges may well be in no position to adjudicate save at most on a bare Wednesbury basis (pp 1130A-1131D).

• Paponette

  Paragraph 42

  42. It follows that, unless an authority pr ovides evidence to explain why it has acted in breach of a representation or promise made to an applicant, it is unlikely to be able to establish any overridi ng public interest to defe at the applicant’s legitimate expectation. Without evidence, the court is unlikely to be willing to draw an inference in favour of the authority. This is no mere technical point. The breach of a representation or promise on which an a pplicant has relied often, though not necessarily, to his detriment is a serious matter. Fairness, as well as the principle of good administration, demands that it needs to be justified. Often, it is only the authority that knows why it has gone back on its promise. At the very least, the authority will always be better placed than the applicant to give the reasons for its change of position. If it wishes to justify its act by reference to some overriding public interest, it must provide the ma terial on which it relies. In particular, it must give details of the public interest so that the co urt can decide how to strike the balance of fairness between the interest of the applican t and the overriding interest relied on by the authority. As Schiemann LJ put it in R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607, [2002] 1 WLR 237, at para 59, where an authority decides not to give effect to a legitimate expectation, it must “articulate its reasons so that their propriety may be tested by the court”.

• Morris (2019)

  Paragraph 42

  42. It follows that, unless an au thority provides evidence to explain why it has acted in breach of a representation or promise made to an applicant, it is unlik ely to be able to establish any overriding public interest to defeat the applicant's legitimate expectation. Without evidence, the court is unlikely to be willing to draw an inference in favour of the authority. This is no mere technical point. The breach of a representation or promise on which an applicant has relied often, though not necessarily, to his detriment is a serious matter. Fairness, as well as the principle of good administration, demands th at it needs to be justified. Often, it is only the authority th at knows why it has gone back on its promise. At the very least, the authority will always be better placed than the applicant to give the reasons for its change of position. If it wishes to justif y its act by reference to some overriding public interest, it must provide the material on which it relies. In particular, it must gi ve details of the public interest so that the court can decide how to strike the balance of fairness between the interest of the applicant and the overriding interest relied on by the authority. As Schiemann LJ put it in R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607 , [2002] 1 WLR 237, at para 59, where an authority decides not to give effect to a legitimate expectation, it must “articulate its reasons so that their propriety may be tested by the court”. …