R (Bibi) v Newham London Borough Council (R (Al-Nashed) v Newham London Borough Council)

A public authority which has lawfully promised a substantive benefit may create a legitimate expectation even though the benefit is not required by statute. The authority must identify and give proper weight to that expectation when deciding whether to honour it.

Detrimental reliance will normally be relevant to fairness, but it is not an absolute legal condition. Reliance without measurable financial loss may still make it unfair to defeat an expectation.

Where the decision entails allocating scarce public resources, the court will not itself make the political choice. It will require the authority to reconsider lawfully, taking account of the expectation, competing claims, the statutory framework and possible alternative means of mitigating disappointment.

Two families, each found unintentionally homeless and in priority need, had been accommodated by the London Borough of Newham for many years without security of tenure. In the early 1990s, when the authority mistakenly believed that housing legislation required permanent accommodation, it promised each family secure accommodation within 18 months.

Turner J allowed their judicial review claims. He declared that the authority’s duty under section 65(2) of the Housing Act 1985 remained undischarged until suitable secure-tenancy accommodation was provided. Newham appealed.

The common issue was whether the promises created enforceable legitimate expectations and, if so, whether the court should require their fulfilment despite the later statutory allocation regime and competing housing needs.

1. The appeals were allowed in part. The court agreed that Newham’s letters and later conduct created legitimate expectations that each applicant would receive suitable accommodation with secure tenure. The expectations were reasonable and were within the authority’s powers to create and fulfil.

2. The fact that the statutory homelessness duty did not itself require secure tenure, following R v Brent LBC, ex parte Awua [1996] 1 AC 35, did not prevent a lawful promise from founding a public-law expectation. The claims rested on the promises, not on a statutory entitlement to permanent housing.

3. The court identified three practical questions: what the authority committed itself to; whether its proposed conduct in relation to that commitment was unlawful; and what relief should follow. Reliance and consequent detriment are factual considerations bearing on fairness. They normally matter, but concrete or monetary detriment is not indispensable. The applicants had relied on the promises, and their prolonged disappointment and lost opportunities were relevant to fairness.

4. Newham had acted unlawfully because it had not treated the unfulfilled promises as a relevant consideration when applying its allocation arrangements. It had to reconsider the applicants’ cases while taking account of their legitimate expectations, the current statutory scheme, the expectations of others, available housing and resources, and possible alternative assistance or compensation. If it decided not to give effect to the expectations, it had to articulate legally sufficient reasons.

5. The court would not itself direct the allocation of secure tenancies. Decisions on scarce publicly funded housing involved social and political choices for the authority, subject to lawful consideration of the expectations. Turner J’s declaration went too far because it treated fulfilment as inevitable. It was replaced by a declaration requiring lawful reconsideration on the stated basis.

• Court of Appeal (Civil Division) — appeals allowed in part; Turner J’s declaration was set aside and replaced with a declaration requiring lawful consideration of the applicants’ legitimate expectations: [2001] EWCA Civ 607.
• High Court (Turner J) — judicial review applications allowed. The judge declared that the authority’s duties under section 65(2) of the Housing Act 1985 were not discharged until suitable secure-tenancy accommodation was provided.