But you promised!

The High Court has found that a council breached the substantive legitimate expecation of a 21-year old man who was statemented and to whom it provided support. Tom Cross looks at the reasons why.

A contention that a decision of a public authority is unlawful because it was taken in breach of the claimant’s legitimate expectation can be generally difficult to make out. R(C) v Westminster City Council (unreported), handed down in the last few days by the High Court, is a rare example of such an argument succeeding. More rarely still, the claimant established not that the council’s decision was in breach of a legitimate expectation that it would follow a particular process before being reached; but rather that it was in breach of his substantive legitimate expectation of a benefit, namely that the council would continue to fund his placement at a residential college for a further three years to allow for his completion of life skills courses and therapy.

The claimant was 21 and statemented. The local authority had confirmed that it would fund his three-year placement at an out-of-area residential college, at which he was to receive an academic course which normally lasted two years, as well as training towards independence, and speech and occupational therapy. The claimant successfully completed the course after two years but the other training and therapy which he was to receive remained outstanding. Upon the college’s requesting funding for a further two years, the authority decided to cease the placement and suggested that he attended a local college with a different support package.

The Court was unimpressed by the council’s change of position. It construed its initial confirmation of funding as being for three years providing the claimant progressed satisfactorily. The claimant had been the recipient of a clear promise to that effect. Although public authorities can seek to justify the frustration of a promise on the basis of an overriding interest, the council here did not seek to do so; it simply denied the existence of the expectation in the first place. So, the Court having found that the substantive legitimate expectation was, in fact, engendered, it followed that the claim succeeded.

Of some more general significance is the fact that the Court emphasised that the nature of the decision meant that it was subject to a greater degree of intrusive review by the court: few individuals were affected by it; it did not have any wide-ranging issues; the importance of what was promised was significant; and it only led to financial consequences for the local authority. This supports the view that the Courts may generally be more inclined to hold an authority to its promises in relation to the funding of special educational provision for an individual, than in other contexts.

The Court went on to find that, but for the breach of the claimant’s substantive legitimate expectation, it would otherwise have been lawful for the council to decide that the provision required by the claimant had changed. The problem for the authority was that the substantive legitimate expectation effectively precluded it from changing his support until the end of the period over which it had committed to provide it.

Fact-specific as this decision may have been, it provides a salutary warning to authorities about the importance of carefully expressing offers of provision, and encouragement to those who provision is withdrawn or changed in breach of an earlier commitment.

Tom Cross is a barrister at 11KBW. He can be contacted on 020 7632 8500 or This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared on the set’s Education Law Blog.