Nadarajah
Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363
Parties and outcome
- Claimant
- Nadarajah and Abdi (appellants in joined proceedings)
- Defendant
- Secretary of State for the Home Department
- Outcome
- The Secretary of State won both appeals: Abdi’s and Nadarajah’s appeals were dismissed.
Citations in this work
Wednesbury
Having cited Wednesbury [1948] 1 KB 223 he said (1352C-D) that by the circular letter the Secretary of State had "stated those matters which he regarded as relevant and would consider in reaching his decision", and held (1352E-F) that the Secretary of State's decision had been unreasonable and unfair: "an unfair action can seldom be a reasonable one".
Coughlan
50.This view was doubted or questioned by a number of distinguished academic lawyers, and the issue was squarely confronted in Ex p. Coughlan [2001] QB 213, described in Mr Underwood's skeleton argument as "[t]he high water mark for protection of substantive legitimate expectation". The applicant was a very seriously disabled lady who lived together with three fellow-patients in Mardon House, which was a purpose-built NHS facility where she and the others had been promised a "home for life" by the health authority. But in October 1998 the health authority decided to close Mardon House. This decision was challenged in judicial review proceedings. There were other points in the case but for our purposes the issue was whether the decision was unlawful because it involved a violation of an enforceable legitimate expectation enjoyed by the applicant to the effect that the promise of a home for life at Mardon House would be kept. The judge at first instance, Hidden J, quashed the closure decision. He held, among other things, that the health authority had shown no overriding public interest such as might justify its breaking its promise and the decision was in any event flawed by want of a proper assessment of the applicant and other matters.
Begbie
54.The next case is Ex p. Begbie [2000] 1 WLR 1115, decided on 20 August 1999, just over a month after judgment was given in Coughlan. The applicant was a child whose place at a private school was funded publicly through the Assisted Places Scheme which had been introduced by the previous government. After the general election on 1 May 1997 the new government introduced legislation (the Education (Schools) Act 1997) to change the policy, phasing out the benefits of the Assisted Places Scheme. The consequence for the applicant was that she would retain her assisted place only until the end of the year in which she completed her primary education, unless the Secretary of State extended it by the specific exercise of a statutory discretion in her favour. Her circumstances, unfortunately, were not within the policy considerations which had been announced as promoting a favourable exercise of the discretion in particular cases. However it was contended on her behalf, ultimately in judicial review proceedings, that (I summarise) assurances had been given by government to the effect that the applicant and other children in like position would enjoy their assisted places throughout their secondary education, and that these assurances gave rise to a legitimate expectation that they would be honoured. In fact, the policy of the government and the effect of the Act of 1997 had been incompetently misrepresented.
Bibi
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.'
Cited by
- Bancoult (No 2)
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
38. If the authority does not place material before the court to justify its frustration of the expectation, it runs the risk that the court will conclude that there is no sufficient public interest and that in consequence its conduct is so unfair as to amount to an abuse of power. The Board agrees with the observation of Laws LJ in Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363 at para 68: “The principle that good administration requir es public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances.” It is for the authority to prove that its failure or refusal to honour its promises was justified in the public interest. There is no burden on the applicant to prove th at the failure or refusal was not justified.
- Morris (2019)
38. If the authority does not pla ce material before the court to justify its frustration of the exp ectation, it runs the risk that the court will conclude that there is no sufficient public interest and that in consequence its conduct is so unfair as to amount to an abuse of power. The Board agrees with the observation of Laws LJ in Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363 at para 68 : “The principle that good administration requires public aut horities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances.” It is for the authority to prove that its failure or refusal to honour its promises was justified in the public interest. There is no burden on the applicant to prove that the failure or refusal was not justified. …