Be wary of creating ‘legitimate expectations’ in parents and others, warns Richard Bird, as failure to meet them could lead to unintended consequences.

Hopes and fears

"Our prospectus states that boys learn a foreign language. They may be taught it; but I am not sure they learn it. We may be open to legal action,” said the head of a distinguished independent school some years ago.

For private organisations – which, like independent schools, are not created by the state – relationships with clients are regulated by contract. So, in theory at least, the head was quite right.

And a contract does not just depend upon the words of the prospectus. There are those things (such as safeguarding) which are too obvious to write down. The law says an officious bystander might ask, “Why have you not written down in the contract X or Y?” If the answer would be, “That is so obvious that we both take it as read, or rather written” then that is assumed to be part of the contract.

For ‘public authorities’ a different branch of law applies but the effect is similar. The courts have taken the view that a public authority may be challenged if it has created a ‘legitimate expectation’ that something will happen and it does not.

Basis for action

If a public authority has suggested that a certain process will be followed before that decision is taken or implemented, then a legitimate expectation is created. So if the authority does not follow that procedure, there is a basis for legal action.

In addition, if a public authority does not grant a benefit but has given the person reason to believe that they will be granted it or that they will continue to receive a benefit and it is withdrawn, a legitimate expectation will have been created and the court can act.

This stops being academic when a staff member says to a parent, “Oh yes, people in Exton Road always get in to this school” and then applications to the school rise and the person doesn’t get in. The parent may have a legitimate expectation that their child will be admitted.

You didn’t say it but vicarious responsibility applies; the employer is answerable for the acts of staff . (The same would apply if the incautious person was a member of the local authority’s staff where the LA is the admission authority).

However, the expectation must be reasonable. A parent who relied on the word of a neighbour, who was a lunchtime supervisor two days a week, would be unlikely to persuade a court that the expectation was reasonable. If it was the head of lower school, the case would be clear.

Fortunately for public authorities, however, the courts will not interfere with policy decisions or with the right of a public authority to change its mind when circumstances change, as long as this change of mind is made clear to all. Unless, that is, the breach of reasonable expectations is unreasonable, unlawful, or results in ‘conspicuous unfairness.’

Legitimate expectations can arise between organisations which are both dependent on the state. The case of Grimsby Institute of Further and Higher Education v Learning and Skills Council (LSC) is a case in point.

The Leaning and Skills Council invited capital bids from colleges and approved bids in principle far in excess of its resources. Having received approval in principle, Grimsby College committed large amounts of its own money in preparation for the massive injection of funds it expected to get when it received approval in detail.

When it became clear it would never receive approval in detail because there was no money, the college took legal action on the grounds that its legitimate expectations – that one approval followed the other and that the LSC would be sufficiently funded – had been broken.

No evidence

The court did not accept that the expectations were legitimate. Although the college claimed that at a briefing it had been told that it was the “chance of a lifetime” there was no evidence apart from the uncertain memory of college staff that these words had ever been spoken.

Similarly, nothing in the Capital Handbook (which indicated the principles by which the LSC would proceed) suggested that approval in detail would automatically follow approval in principle.

The court also found evidence that the college had proceeded with an ‘active appreciation of the risk’ it was running.

Schools do need to know when they are creating ‘legitimate expectations’. A caveat that things may change is always useful and staff should be made aware that they should avoid making statements on policy unless they have checked that what they are saying is right.

• Richard Bird is ASCL’s legal consultant

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