News & Insights

The need to understand legitimate expectation

For for those working in public consultation there are increasingly demanding standards of community and stakeholder involvement, and failure to observe best practice can prejudice the effective management of such changes as well as exposing public bodies to legal challenges.

There are many statutory requirements for consultation, but the truth is that ALL significant changes to long-standing services need consultation.

Modern management assumes that before decisions are taken, “stakeholders” are involved. Thirty years ago, that term was unknown, and autocratic managers just took decisions first and discussed or defended them second. Today, the picture is totally different. The Courts provide their own incentive to engage. It’s called the ‘doctrine of legitimate expectation’.

If the public has a sound basis for expecting to be consulted, then failure to do so can lead to losing a Judicial Review. And Judges have ruled that if people have been accustomed to the benefit of a service, then its withdrawal without consultation can in many circumstances, be unlawful.

In the case of R (ex parte LH) v Shropshire County Council in 2014, the Council lost a Judicial Review of its decision to close a day centre. It established the principle that if a local authority (or any other public body for that matter) wishes to close a facility, it must consult on that specific closure proposal. It will not suffice just to consult on an overall strategy of closures. This is because the public has a legitimate expectation that its views would be sought – and this particularly applies to service users.

Increasingly, we are seeing legitimate expectation as an area of challenge for those who work in public consultation and engagement. In some cases it may be difficult to determine whether you need to consult or engage, and getting it right can have a positive effect on your consultor/consultee relationship. But getting it wrong, may result in long-lasting damaging effects to your credibility and future consultations. If you’re unsure of legitimate expectation, call us to find out more. We are here to help.

 

To find out more about legitimate expectation and the Law of Consultation, call on 01767 318350 or email rebeccaw@consultationinstitute.org

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