RD & Ors, R (on the application of) v Worcestershire County Council

A public authority may create a legitimate expectation by making a clear, unambiguous and unqualified promise to a defined class. Knowledge of the promise, reliance and detriment are not invariably required. The court must assess whether frustrating the expectation would be unfair and objectively justifiable in the public interest.

Where a decision to withdraw a service is expressly premised on transitional arrangements, the authority must devise and implement those arrangements. A general signposting exercise is insufficient where the promise was to identify and meet needs previously addressed by the withdrawn service. The authority need not necessarily reinstate the service, but must lawfully identify unmet need and consider how it can be met.

Four disabled children challenged Worcestershire County Council’s withdrawal of Portage services from 1 October 2018. The Council had decided in August 2016 to close the dedicated service, but the decision was expressly premised on transitional arrangements which would mitigate the impact and secure access to alternative services meeting needs previously addressed by Portage.

The claim did not challenge the 2016 closure decision itself. It challenged the failure to devise and implement the promised transition arrangements. The issues included legitimate expectation, statutory duties concerning children with special educational needs and disabilities, equality duties, irrationality, delay, alternative remedy and the statutory restriction on relief where the outcome would probably have been substantially the same.

1. Target of challenge. The claim concerned the absence of transition planning, not an implied duty to reconsider the August 2016 decision. The Council had represented that it would devise and implement arrangements enabling affected families to access alternative services meeting needs previously addressed by Portage.
2. Legitimate expectation. A legitimate expectation may arise from an express promise or regular practice. The promise must be clear, unambiguous and without relevant qualification. The court applies the public law concepts of fairness and abuse of power; a private law analogy is unnecessary. The expectation may be procedural or substantive, and the distinction did not affect the result.
3. Reliance and detriment. Reliance and detriment are relevant considerations but are not required in every case. Nor is personal knowledge invariably required where the promise is made to a defined class or the public. To impose such requirements universally would disadvantage persons unable to act on the promise.
4. Application. The Council’s promise was clear, unqualified, directed to an identified class and integral to the closure decision. The Council did not devise or implement any genuine transition plan. Documents summarising case information, late meetings and a withdrawal letter offering general signposting did not identify unmet need or ensure access to suitable alternative provision.
5. Justification and relief. The Council offered no public-interest justification for frustrating the expectation. The claim was brought promptly once the absence of planning became apparent, and the suggested complaint procedures were not an effective alternative because the complaint concerned the failure to create the promised plan. It was impossible to conclude that the outcome would probably have been substantially the same under R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860. The claim succeeded and a declaration was granted. The Council was not required to reinstate Portage, but had to identify unmet need and consider whether its SEND provision was sufficient.