R v North and East Devon Health Authority, Ex p Coughlan

A clear and lawful promise by a public authority may create a substantive legitimate expectation. Where the promise is made to an individual or small group and resembles a contractual commitment, the court determines whether frustrating it would be so unfair as to constitute an abuse of power. The authority must show an overriding public interest sufficient to justify departure.

Local authorities may provide nursing care under social-services legislation only where it is incidental or ancillary to accommodation and of a nature that a social-services authority may reasonably provide. Care exceeding either limit remains an NHS responsibility. Eligibility criteria must respect that statutory boundary. Consultation, once undertaken, must occur while proposals remain formative, disclose sufficient reasons, allow adequate time for an intelligent response and be conscientiously considered.

The Health Authority appealed against Hidden J's order quashing its decision to close Mardon House, an NHS facility in which Miss Coughlan, a severely disabled long-term patient, had been promised a home for life. Hidden J held that the promise could not be broken without an overriding public interest, that the closure process and eligibility criteria were unlawful, and that all nursing care remained the NHS's sole responsibility.

The Court of Appeal considered the statutory division between NHS and local-authority nursing care, the legality of the Health Authority's eligibility criteria, substantive legitimate expectation, Article 8, assessment and placement, and the adequacy of consultation. The central questions were whether Miss Coughlan's needs could lawfully be assigned to social services and whether closing her promised home was an abuse of power.

Appeal dismissed, with costs. Lord Woolf MR delivered the joint judgment of the Court, to which Mummery and Sedley LJJ contributed.

1. The NHS does not have sole responsibility for every form of nursing care. Reading sections 1 and 3 of the National Health Service Act 1977 with section 21 of the National Assistance Act 1948, a local authority may provide nursing services connected with accommodation where they are merely incidental or ancillary to that accommodation and are of a nature which a social-services authority may be expected to provide. Quantity and quality are both relevant. The Secretary of State may decline NHS provision only upon a tenable judgment, consistent with the duty to promote a comprehensive free health service, that the services need not be provided by the NHS. Miss Coughlan's needs were primarily health needs and exceeded the local authority's lawful responsibility.

2. The Health Authority's continuing-care eligibility criteria were unlawful. They treated absence of a need for hospital in-patient care and the distinction between general and specialist nursing as if they exhaustively determined NHS responsibility. A person living in a nursing home may still require NHS-funded care because of the scale of health needs, or may require additional NHS services beyond nursing care lawfully supplied by a local authority.

3. A public authority's representation may produce three forms of expectation: an expectation that a policy will be considered, a procedural expectation, or a substantive expectation of a benefit. For a substantive expectation, the court decides whether frustrating it would be so unfair as to amount to abuse of power. It weighs fairness against any overriding public interest while respecting the authority's policy judgment.

4. The promise that Mardon House would remain Miss Coughlan's home for as long as she chose was clear, unqualified, made to a small group for the authority's purposes, and relied upon. Funding care elsewhere was materially different from honouring that promise. No overriding public interest justified closure without reasonably equivalent accommodation. The decision was therefore unfair and an abuse of power. It would also amount to an unjustified interference with her home under Article 8.

5. Assessment and identification of alternative placement were not ordinarily legal preconditions to a closure decision. Here, however, assessments based on unlawful eligibility criteria could not support discharge or placement. The consultation attracted criticism but satisfied the applicable legal requirements.

1. Court of Appeal: dismissed the Health Authority's appeal and upheld the quashing of the closure decision, although it disagreed with Hidden J that all nursing care was necessarily the NHS's sole responsibility.
2. Queen's Bench Division: Hidden J granted certiorari quashing the decision to close Mardon House. He held that the promise of a home for life had been unlawfully broken, the decision-making and consultation were flawed, and all nursing care remained the NHS's responsibility.