R v North and East Devon HA ex p Coughlan

Facts

Pamela Coughlan was left severely disabled by a road accident in the early 1970s. In 1993 she and other seriously disabled patients moved from a hospital to Mardon House, a National Health Service facility in Devon, after the health authority promised that it would be their home for life. In 1998 the authority decided to close Mardon House and to transfer the residents to the responsibility of the local social services authority, citing the cost of running it. Coughlan challenged that decision by judicial review.

History

Hidden J granted the application and quashed the authority's decision. The health authority appealed to the Court of Appeal.

Issue

Whether and when a court can enforce a substantive legitimate expectation created by a promise made by a public authority; whether the closure was justified by an overriding public interest; and whether the nursing care Coughlan needed could lawfully be left to a local authority social services department rather than provided by the health service.

Held

The authority's appeal was dismissed. The promise gave rise to a legitimate expectation of a home for life; breaking it in the circumstances was so unfair as to amount to an abuse of power, since the authority had not shown an overriding public interest justifying it. The closure decision was quashed.

Ratio

• Where a public authority has made a clear promise of a substantive benefit to a small number of identifiable persons, the court decides for itself whether frustrating the expectation would be so unfair as to be an abuse of power, balancing the expectation against any overriding public interest relied on by the authority; the test is not confined to rationality.
• Cases fall into three kinds: where the authority need only have regard to its earlier policy or practice, so that review is for rationality; where the expectation is of a procedural benefit such as consultation, which the court protects by requiring the procedure; and where the expectation is of a substantive benefit, in which the court weighs fairness against the public interest relied on.
• A social services authority can lawfully provide only nursing care which is incidental or ancillary to the accommodation it provides and of a kind it can reasonably be expected to supply; care beyond that falls to the health authority.

Key reasoning

• The promise was made to a very small group, was clear and specific, was of a home for life, and was relied on by the residents in moving to Mardon House, so the case fell in the category where the court weighs the expectation against the overriding interest itself.
• The authority had not shown that financial pressures justified the closure so as to outweigh the promise; it had not given the promise proper weight, and the decision was a failure to honour it that was not justified by an overriding interest.
• The nursing care which Coughlan needed was more than a social services authority could provide, so the authority's plan to transfer responsibility could not simply be assumed to be lawful.

Obiter

• The court indicated that, had the Human Rights Act 1998 been in force, the closure would also have breached the right to respect for the home and private life in Article 8 of the Convention, since it had not been justified as necessary.

Where it fits in the module

On the FHS Administrative Law list under substantive protection for legitimate expectations. Coughlan is the pivot of the debate: it moved the courts beyond purely procedural protection and rationality review, departing from the narrower approach in R v Secretary of State for the Home Department, ex p Hargreaves [1997] 1 WLR 906, and framed the test as abuse of power. Candidates should link it to later developments, including R (Bibi) v Newham LBC [2001] EWCA Civ 607, R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 on proportionality and expectation, Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32, and R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25, and ask whether the categories stand up and how the courts weigh promises against policy.

Criticisms

• The three-category structure is unstable: the line between a policy change affecting many and a promise to a few depends on a judgment of how many people are affected and how specific the promise is, and the court's weighing of the public interest looks like review of the merits.
• Treating frustration of a promise as an abuse of power which the court assesses for itself resembles proportionality and sits uneasily with the orthodox view that courts review discretion only for rationality.
• Protecting a promise can fetter the future exercise of a statutory discretion, and the rule favours small, identifiable groups over the many, which can seem arbitrary.