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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Borough Of Newham & Ors, R v [2001] EWCA Civ 607 (26 April 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/607.html Cite as: [2002] WLR 237, (2001) 33 HLR 84, [2002] 1 WLR 237, [2001] NPC 83, [2001] EWCA Civ 607

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE TURNER

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 26th April 2001

LORD JUSTICE SCHIEMANN :

This is the judgment of the Court

Overview

1. These appeals require the court to consider whether these applicants have a claim based on legitimate expectations engendered by an administrative authority.
2. Before us are two joined appeals by a Housing Authority, the London Borough of Newham, against a judgment given by Turner J. on applications for judicial review which had been brought by two families each of which had been found by the Authority to be unintentionally homeless and in priority need. They are the respondents to these appeals but it is convenient to call them the applicants, as did the judge below. They each have been provided by the authority with housing for the last 10 years or so but they have never had security of tenure. They each successfully brought applications for judicial review of the Authority's decisions that the duty to secure that accommodation became available to them had been discharged. The Judge declared that the Authority were "bound to treat the duties originally owed by them to both applicants under section 65 (2) Housing Act 1985 as not discharged until the applicants be provided by them with suitable accommodation on a secure tenancy". He gave the Authority permission to appeal.
3. The subsection to which the judge referred reads:

"Where a Housing Authority are satisfied that an applicant has priority need and are not satisfied that he is homeless intentionally, they shall .... secure that accommodation becomes available for his occupation."

4. It is common ground that the Housing Acts do not impose a duty upon the Authority to provide such security of tenure : section 65(2) makes no mention of it. However, in the erroneous (but at the time widely held) belief that the Housing Act 1985 did impose such a duty, the Authority in the early 1990s promised to each of them and to others in a similar position legally secure accommodation within 18 months. The Authority has not fulfilled its promise although many years have passed. The judge held that the applicants had a legitimate expectation that they would be provided with secure accommodation, that the Authority could not renege on its promise and that it was in principle bound to comply with it, although he set no time limits for that compliance.
5. The claims of the applicants have always been public law rather than private law claims. They submit, and the Authority accepts, that at the time the promises were made, the Authority was under a statutory duty to provide the applicants with accommodation and the Authority had statutory powers to provide them with permanent accommodation (that being the cant phrase for accommodation in relation to which applicants have security of tenure). The applicants do not submit that the Authority are under a statutory duty to provide them with permanent accommodation : such a submission, while it would have succeeded in this Court prior to the decision of the House of Lords in R -v-Brent L.B.C. ex parte Awua [1996] 1 A.C. 35, has become untenable since that decision. The applicants found solely on the promises lawfully made to them by the Authority.
6. The Authority accepts that it made the promise; state that it made it prior to the decision in Awua because it misunderstood the law and thought that it was obliged (as opposed to merely empowered) by statute to provide permanent accommodation; submit that the Judge developed the concept of legitimate expectation beyond its previously accepted limits in this developing field of law and submit that he was wrong to do so and that it acted lawfully in reneging on its promise.
7. In his careful skeleton argument, to which we express our indebtedness, Jan Luba Q.C., who appeared for the applicant Al-Nashed and whose submissions were adopted by Christopher Maynard who appeared for the applicant Manik Bibi, submitted that the most helpful conceptual approach to the problems involving legitimate expectation was for the Court to ask itself five questions.
8. Was there an expectation held by the beneficiary of the statutory duty as to the method by which the duty would be fulfilled? Was that expectation generated by a representation made by the statutory authority (or service provider)? Was the expectation "legitimate"? Would it be unfair to the beneficiary of the duty to allow the statutory authority to resile from its representation? If it would be unfair, is there an over-arching policy consideration which should prevail to enable the statutory authority to resile notwithstanding the consequent unfairness?
9. David Matthias, who appears for the Authority, is content to accept that conceptual framework. He accepts that the answer to the first two questions is in the affirmative. He submits however, that the expectation was not legitimate, that it would not be unfair for the Authority to resile from its promise and that, even if this would be unfair, there were policy considerations which entitled the Authority so to resile.
10. In the present cases it is common ground that the Authority committed itself to providing secure accommodation to each of the applicants. The root question is whether the Authority should be held to that promise. This involves a number of considerations – the legal powers and duties of the Authority, the decision making process within the Authority, the effect on the applicants of permitting the Authority to renege on its promise and the effect on others of insisting that the Authority keep its promises to these applicants.

The Statutory Background

11. The position here is complicated by the fact that the law has changed between the time when the promises were made and the present time. Housing Authorities have long had and still have the power under a succession of Housing Acts to provide accommodation. Since the coming into force of the Housing (Homeless Persons) Act 1977 there has been added to this power a duty to secure that suitable accommodation becomes available to certain classes of the homeless. It was widely thought, prior to the decision in Awua, that the duty to secure that suitable accommodation becomes available implied a duty to secure that permanent accommodation became available. This interpretation meant that in practice the homeless leaped to the front of the queue for local authority housing. This interpretation of the section was rejected in Awua.
12. The following are the most immediately relevant statutory provisions:-

The Housing Act 1985

s.22: "A local housing authority shall secure that in the selection of their tenants a reasonable preference is given to -

(a) persons occupying unsanitary or overcrowded houses,

(b) persons having large families,

(c) persons living under unsatisfactory housing conditions, and

(d) persons towards whom the authority are subject to a duty under section 65 or 68 (persons found to be homeless).

Part III of the Act re-enacted the provisions which had been contained in the 1977 Act in relation to the duties owed to the homeless.

S.65(2): "Where they [i.e. a local housing authority] are satisfied that [an applicant] has priority need and are not satisfied that he is homeless intentionally, they shall .... secure that accommodation becomes available for his occupation."

S 69(1): "A local housing authority may perform any duty under section 65 … to secure that accommodation becomes available for the occupation of a person -

a) by making available suitable accommodation held by them under Part II … or under any other enactment,

b) by securing that he obtains suitable accommodation from some other person, or

c) by giving him such advice and assistance as will secure that he obtains suitable accommodation from some other person."

The Housing Act 1996

13. In the Housing Act 1996 there were further changes.

Part III of the 1985 Act was repealed except in relation to an applicant (such as those with whom we are concerned) whose application for accommodation was made before 20 January 1997. Part VII contains the current homelessness provisions.

S193: "(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.

(2)... the authority..... shall secure that accommodation is available for occupation by the applicant.

(3) The authority are subject to the duty under this section for a period of two years ("the minimum period") ......

S.194: (1) Where a local housing authority have been subject to the duty under section 193 in relation to a person until the end of minimum period, they may continue to secure that accommodation is available for his occupation.

(2) They shall not do so unless they are satisfied on a review under this section that -

a) he has a priority need,

b) there is no other suitable accommodation available for occupation by him in their district, and

c) he wishes the authority to continue securing that accommodation is available for his occupation;

and they shall not continue to do so for more than two years at a time unless they are satisfied on a further review under this section as to those matters."

Those provisions came into force on 20 January 1997.

14. Part VI of the 1996 Act, starting with section 159, deals in general terms with the allocation of housing accommodation. Citing Hansard, the commentary in Halsbury's Statutes to section 159 states:

"Under the existing legislation, and the way it has been applied until now, a person who is owed a duty under the homelessness legislation has generally been re-housed in long term accommodation in a little over half the time in which someone who is on the housing list had to wait. The purpose of the reforms is to ensure that the claims of every person who is seeking social housing are given proper consideration on a comparable basis…"

S.159(1): "A local housing authority shall comply with the provisions of this Part in allocating housing accommodation".

S.161(1): "A local housing authority shall allocate housing accommodation only to persons ("qualifying persons") who are qualified to be allocated housing accommodation by that authority".

S.162(1): "Every local housing authority shall establish and maintain a register of qualifying persons (their "housing register").

S. 163(1): "A persons shall be put on a local housing authority's housing register if he applies to be put on and it appears to the authority that he is a qualifying person".

S.167(1): "(1) Every local housing authority shall have a scheme (their "allocation scheme") for determining priorities, and as to the procedure to be followed, in allocating housing accommodation.

(2) As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to -

(a) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions,

(b) persons occupying housing accommodation which is temporary or occupied on insecure terms,

(c) families with dependant children,

(d) households consisting of or including someone who is expecting a child,

(e) households consisting of or including someone with a particular need for settled accommodation on medical or welfare grounds, and

(f) households whose social or economic circumstances are such that they have difficulty in securing settled accommodation."

(3) The Secretary of State may by regulations -

(a) specify further descriptions of people to whom preference is to be given as mentioned in sub- section (2)"

(8) "A local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme".

Those sections broadly speaking came into force on 1 April 1997.

15. The Allocation of Housing (Reasonable and Additional Preference) Regulations 1997 which came into force on 1st November 1997 specified as a further description of people to whom reasonable preference is to be given in the allocation scheme of a local housing authority persons owed a duty by that authority as homeless persons.
16. It can be seen that in very broad terms, the result of the decision in Awua and the legislative changes is that, when it comes to entitlement to the provision of permanent accommodation, the homeless have been placed in much the same situation as anyone else likely to get a council house. We put it that way because there is no likelihood that anyone not falling into the categories of those who are to be given reasonable preference in accordance with section 167(1) will be allocated a council house.

Legitimate expectation

17. We gratefully adopt what was said of the phrase "legitimate expectation" by Lord Fraser of Tullybelton in A-G of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 at page 636:

"It is many ways an apt one to express the underlying principle, though it is somewhat lacking in precision. In Salemi v MacKellar (No. 2) (1977) 137 C.L.R. 396, 404, Barwick C.J. construed the word "legitimate" in that phrase as expressing the concept of "entitlement or recognition by law". So understood, the expression (as Barwick C.J. rightly observed) "adds little, if anything, to the concept of a right". With great respect to Barwick C.J., their Lordships consider that the word "legitimate" in that expression falls to be read as meaning "reasonable". Accordingly "legitimate expectations" in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis: see Reg. -v- Criminal Injuries Compensation Board ex parte Lain [1967] 2 Q.B. 864."

18. The case law is replete with words such as "legitimate" and "fair", "abuse of power" and "inconsistent with good administration". When reading the judgments care needs to be taken to distinguish analytical tools from conclusions which encapsulate value judgments but do not give any indication of the route to those conclusions.
19. In all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or by promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do. This formulation of the questions is we think a more helpful way of approaching the problems in this type of case than the fivefold question adopted during argument.

To what has the authority committed itself?

20. The answer to the first is a question of analysing the evidence - it poses no jurisprudential problems.
21. Sometimes, as in the first category of outcome analysed in Ex parte Coughlan [2000] 2 WLR 622 (para. 57) the answer to this first question is dispositive of the case. It seems to us that the present authorities in that group of cases (in particular In re Findlay [1985] AC 318, 338) make it generally appropriate to allocate the issue of legitimacy to this initial question. In other words, if the public body has done nothing and said nothing which can legitimately have generated the expectation that is advanced to the court, the case ends there. It seems likely that a representation made without lawful power will be in this class. In the present case the answer to the first question is not in dispute and is in favour of the applicants.

The interrelation of the second and third questions

22. Two problems face a court in answering these questions. The first is to find one or more measuring rods by which it can be objectively determined whether a certain action or inaction is an abuse of power. The second is what order to make once an abuse of power has been discerned – can the court come to a substantive decision itself or should it send the matter back to the decision taker to decide afresh according to law?
23. To a degree the answer to the second depends on the approach one takes to the first. As Laws L.J. pointed out in R v Secretary of State for Education and Employment ex parte Begbie [2000] 1 WLR 1115 at page 1131C "The more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the court's supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy."

Has the authority acted unlawfully? Introduction

24. As Professor Craig makes clear in his perceptive discussion of this topic in chapter 19 of the fourth edition of his "Administrative Law", it is important to recognise that there is often a tension between several values in these cases. A choice may need to be made as to which good we attain and which we forego. There are administrative and democratic gains in preserving for the authority the possibility in the future of coming to different conclusions as to the allocation of resources from those to which it is currently wedded. On the other hand there is value in holding authorities to promises which they have made, thus upholding responsible public administration and allowing people to plan their lives sensibly. The task for the law in this area is to establish who makes the choice of priorities and what principles are to be followed.
25. Several attempts have been made to find a formulation which will provide a test for all cases. However, history shows that wide-ranging formulations, while capable of producing a just result in the individual case, are seen later to have needlessly constricted the development of the law. Thus it was the view of this court in Coughlan that a principle, apparently earlier embraced by this court in R v Secretary of State for the Home Department, ex parte Hargreaves [1997] 1 WLR 906, to the effect that the court would only enforce expectations as to procedure as opposed to expectations of a substantive benefit, was wrongly framed.

Has the authority acted unlawfully? The relevance of reliance on the promise.

26. Mr Matthias submits that, in cases where the expectation which has been generated is of a substantive as opposed to a procedural benefit, authority limits the court to enforcing it only if (a) the motive for resiling from it was improper, or (b) there has been detrimental reliance on it. Only then, he submits, can the departure be said to amount, as it must, to an abuse of power. Founding on the distinction between procedural and substantive expectations identified in Coughlan para. 57, on the reasoning in Ex parte Preston [1985] AC 835, 866-7 and on the cases reported to date, he argues that (absent bad faith) a substantive legitimate expectation can only arise where a situation analogous to a private law wrong, and therefore involving detrimental reliance, exists.
27. We would not accept this formulation. As Sir Thomas Bingham MR observed in R v Inland Revenue Commissioners, ex p. Unilever plc [1996] STC p.681 at page 690f:

"The categories of unfairness are not closed, and precedent should act as a guide and not as a cage".

28. As indicated in R v Secretary of State for Education and Employment, ex parte Begbie 2000 1 WLR 1115 reliance, though potentially relevant in most cases, is not essential. In that case a letter sent to the parents of one child affected by legislative and policy changes concerning assisted school places came to the knowledge of another child's parent, who relied on it in judicial review proceedings. Peter Gibson LJ, giving the leading judgment, said at page 1123H:

"Mr. Beloff submits ... (v) it is not necessary for a person to have changed his position as a result of such representations for an obligation to fulfil a legitimate expectation to subsist; the principle of good administration prima facie requires adherence by public authorities to their promises. He cites authority in support of all these submissions and for my part I am prepared to accept them as correct, so far as they go. I would however add a few words by way of comment on his fifth proposition, as in my judgment it would be wrong to understate the significance of reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation".

29. In the light of this, we respectfully adopt what Professor Craig has proposed in this regard in his Administrative Law at p. 619:

"Detrimental reliance will normally be required in order for the claimant to show that it would be unlawful to go back on a representation. This is in accord with policy, since if the individual has suffered no hardship there is no reason based on legal certainty to hold the agency to its representation. It should not, however, be necessary to show any monetary loss, or anything equivalent thereto."

30. But he gives the following instance of a case where reliance is not essential -

"Where an agency seeks to depart from an established policy in relation to a particular person detrimental reliance should not be required. Consistency of treatment and equality are at stake in such cases, and these values should be protected irrespective of whether there has been any reliance as such".

31. In our judgment the significance of reliance and of consequent detriment is factual, not legal. In Begbie both aspects were in the event critical: there had been no true reliance on the misrepresentation of policy and therefore no detriment suffered specifically in consequence of it. In a strong case, no doubt, there will be both reliance and detriment; but it does not follow that reliance (that is, credence) without measurable detriment cannot render it unfair to thwart a legitimate expectation.
32. Since we reserved judgment this court on 12.03.2001 (Lord Phillips MR, Kennedy and Dyson LJJ) delivered judgment in R (On the application of Zeqiri) v Secretary of State for the Home Department [2001] All ER (D) 121 (Mar). It was an immigration case which had been stood out pending a final decision in a test case which was destined for the House of Lords. The issue in the test case was identical to that in Zeqiri, namely, whether the applicant's claim for asylum should be decided in this country or in Germany. It was assumed all round that if it was held in the test case that the claim should be decided in this country then the same result would follow in Zeqiri. In the test case it was so decided. The Secretary of State submitted, however, that, by reason of a change of circumstances in Germany, it was open to him to proceed on the basis that Zeqiri's claim for asylum should be determined in Germany. This court held that to be unfair in the circumstances of that case. Not having heard submissions on the point we do not express a concluded view but it certainly seems as though the court proceeded on the basis that Zeqiri had a legitimate expectation that, in the events as they had turned out in relation to the test case, his application for asylum would be determined in this country and concluded that change of position or reliance on the part of Zequiri did not need to be shown. In paragraph 68 of the judgment the Master of the Rolls delivering the only substantive judgment said:

"Mr Gill submitted that the period that the appellant spent "in limbo", awaiting the progression of [the test case] to the House of Lords has involved further hardship. The prolonged period of uncertainty as to his fate will have caused him mental stress and he will have been forced to subsist without the benefits of those whose claim to asylum has been recognised. ... I consider that this hardship is material to the question of whether it would now be fair for the Secretary of State to remove the appellant to Germany on the basis that the decision for which he has been waiting is of no relevance to his case. It is unfair for the Secretary of State to change tack at this late stage."

Has the authority acted unlawfully? "So unfair as to amount to an abuse of power".

33. The traditional view has been that the Wednesbury categories were exhaustive of what was an abuse of power. However in Coughlan the court preferred "to regard the Wednesbury categories as the major instances (not necessarily the sole ones ...), of how public power may be misused" (para.81).
34. In Coughlan the court followed R v Inland Revenue Commissioners ex parte Unilever [1996] S.T.C.681, in asking itself whether the reneging by an authority on its promise was "so unfair as to amount to an abuse of power" (para.78). It concluded that it was. However, without refinement, the question whether the reneging on a promise would be so unfair as to amount to an abuse of power is an uncertain guide.
35. Where one is dealing with a promise made by an authority a major part of the problem is that it is often not adequate to look at the situation purely from the point of view of the disappointed promisee who comes to the court with a perfectly natural grievance.
36. Sometimes many promises have been made to many different persons each of which has induced a reasonable expectation of a substantive benefit for that person but all of which promises cannot be fulfilled. This situation is not uncommon in central and local Government. Decision takers promise and find themselves unable to deliver that which they have promised. As Bacon, perhaps cynically, remarked 400 years ago "it is a certain sign of wise government and proceeding that it can hold men's hearts by hopes when it can not by satisfaction". Seen from the point of view of administrators focusing on the problem immediately before their eyes a promise seems reasonable or will at least reduce the need to worry further in the immediate future about the promisee. But when they, or their superiors, focus on a wider background it appears that the making of the promise was unwise or that, in any event, its fulfilment seems too difficult.
37. Thus in cases such as those before the court, the family with the highest points on the Authority's scale can be regarded as having a legitimate expectation that the next five bedroom flat would go to them. So can the applicant who was promised a five bedroom flat within 18 months which have elapsed. So can all the other persons who have been promised suitable accommodation within 18 months. Yet the Authority does not possess enough housing for them all.
38. The suggestion was made in argument that this problem can be avoided by the authority which is short of housing giving every family enough money to provide its own housing. But this is not always an escape from the problem because the money can often not be found without depriving others of money which they expected to retain or of benefits which they expected to receive.
39. But on any view, if an authority, without even considering the fact that it is in breach of a promise which has given rise to a legitimate expectation that it will be honoured, makes a decision to adopt a course of action at variance with that promise then the authority is abusing its powers.

The role of the court

40. The court has two functions - assessing the legality of actions by administrators and, if it finds unlawfulness on the administrators' part, deciding what relief it should give. It is in our judgment a mistake to isolate from the rest of administrative law cases those which turn on representations made by authorities. The same constitutional principles apply to the exercise by the court of each of these two functions.
41. The court, even where it finds that the applicant has a legitimate expectation of some benefit, will not order the authority to honour its promise where to do so would be to assume the powers of the executive. Once the court has established such an abuse it may ask the decision taker to take the legitimate expectation properly into account in the decision making process.
42. Only part of the relevant material upon consideration of which any decision must be made is before the court. Because of the need to bear in mind more than the interests of the individual before the court, relevant facts are always changing. As Lord Bingham said in R v Cambridge Health Authority, ex parte B [1995] 2 All ER 129:

"…it would be totally unrealistic to require the authority to come to the court with its accounts and seek to demonstrate that if this treatment were provided for B then there would be a patient, C, who would have to go without treatment. No major authority could run its financial affairs in a way which would permit such a demonstration."

43. While in some cases there can be only one lawful ultimate answer to the question whether the authority should honour its promise, at any rate in cases involving a legitimate expectation of a substantive benefit, this will not invariably be the case.

The present case

The facts

44. In very broad terms what has happened to each of the applicants is this. At a time when the Authority had the power but also erroneously thought that it was obliged under the law to provide secure accommodation to the applicants suitable for their families it promised to do so within 18 months. The letter sent out was, we understand, in standard form and regularly sent out at that time to those unintentionally homeless,
45. Thereafter the statutory allocation regime changed. The Authority, pursuant to statute, devised an allocation scheme (which determined priorities and awarded a certain number of points in accordance with those priorities), set up a housing register and placed each of the applicants on it. Both applicants have been high on the list of applicants for accommodation of the type that they require for some time and indeed have headed it but then lost their place to someone else. This must have been bitterly disappointing for them. However the allocation scheme clearly envisages that this may happen. A needy applicant may have to yield his place in the queue to people who have moved to the Borough more recently than he but whose housing need is even more acute than his; other families on the housing register may grow thus increasing their housing need; someone may become disabled in some way and thus become more disadvantaged than an applicant, and so on. No doubt the applicants had themselves also in the past overleaped someone who was already in the queue. Because this happens and gives rise to huge resentments the operation of the housing register is a challenging and difficult task involving many judgments.

To what has the authority committed itself?

46. We accept Mr Luba's submission that Newham's letter and subsequent conduct will have generated an expectation in each applicant, as in others in their situation, that Newham would be providing them with secure housing in the relatively near future. We agree too that such an expectation was legitimate, both in the sense that it was entirely reasonable for the applicants to entertain it and in the sense – which, as Mr Matthias submits, is equally fundamental to legitimacy – that it lay within the powers of the local authority both to make the representation and to fulfil it.
47. The case has throughout been argued on the basis that the Authority acted lawfully in making the representations. No argument was advanced by Mr Matthias that the making of the representations was beyond the powers of the Authority, perhaps because it is always embarrassing for an authority to resist an application for judicial review by relying on its own illegalities. It would not be right for us to decide the case on the basis of such a possible argument and we do not do so.
48. We proceed therefore on the basis that the Authority has lawfully committed itself to providing the applicants with suitable accommodation with secure tenure.

Has the authority acted unlawfully?

49. Whereas in Coughlan it was common ground that the authority had given consideration to the promises it had made, in the present cases that is not so. The Authority in its decision making process has simply not acknowledged that the promises were a relevant consideration in coming to a conclusion as to whether they should be honoured and if not what, if anything, should be done to assuage the disappointed expectations. In our judgment that is an error of law.
50. The Authority should when considering the position of the applicants have borne in mind that a promise was made to each of them that they would be given secure tenancies and that these promises have to this day, many years after they were made, not been fulfilled. There is no indication that the Authority has ever come to a judgment as to what weight should be given to the fact that the promises were made. There is no reason why the applicants should be disadvantaged by the fact that the promises were made as a result of the Authority's misunderstanding of the law.
51. The law requires that any legitimate expectation be properly taken into account in the decision making process. It has not been in the present case and therefore the Authority has acted unlawfully.
52. It was submitted that neither applicant has changed his or her position on the strength of the expectation and therefore no weight ought to be given to the fact that the promises have not been fulfilled. We have already said that this factor does not rank as a legal inhibition on giving effect to the legitimate expectation. But what weight ought to be given to the lack of change of position?
53. The fact that someone has not changed his position after a promise has been made to him does not mean that he has not relied on the promise. An actor in a play where another actor points a gun at him may refrain from changing his position just because he has been given a promise that the gun only contains blanks.
54. A refugee such as Mr Al-Nashed might, had he been told the true situation, have gone to one of the bodies which assist refugees for advice as to where in England and Wales he might have better prospects; or have tried to find the deposit on an assured tenancy, with the possibility thereafter of housing benefit to help with the rent.
55. The present case is one of reliance without concrete detriment. We use this phrase because there is moral detriment, which should not be dismissed lightly, in the prolonged disappointment which has ensued; and potential detriment in the deflection of the possibility, for a refugee family, of seeking at the start to settle somewhere in the United Kingdom where secure housing was less hard to come by. In our view these things matter in public law, even though they might not found an estoppel or actionable misrepresentation in private law, because they go to fairness and through fairness to possible abuse of power. To disregard the legitimate expectation because no concrete detriment can be shown would be to place the weakest in society at a particular disadvantage. It would mean that those who have a choice and the means to exercise it in reliance on some official practice or promise would gain a legal toehold inaccessible to those who, lacking any means of escape, are compelled simply to place their trust in what has been represented to them.
56. A further element for the Authority to bear in mind is the possibility of monetary compensation or assistance. As this court indicated in Coughlan (ante) para 82, a legitimate expectation may in some cases be appropriately taken into account by such a payment.
57. An element which may tell against giving effect to the legitimate expectation is the effect on others on the housing list of giving the present applicants special preference. Mr Matthias understandably relies on this both as a reason why Newham's stance is not unfair and, in the alternative, as an overriding policy reason why effect should not be given to the representation. Ostensibly powerful as this is it faces the obstacle, as Mr Luba has argued, that nothing unlawful would necessarily be involved in allocating secure housing to the applicants. For example, the Authority could change the allocation scheme to give weight to its representation to the applicants and the 115 others in their situation. Changing the scheme might not in truth be so simple – but it does not seem to have been considered by the Authority.
58. When considering the legitimate expectations which it has created, the Authority is entitled to take into account the current statutory framework, the allocation scheme, the legitimate expectations of other people, its assets both in terms of what housing it has at its disposal and in terms of what assets it has or could have available. It should consider whether, if it considers it inappropriate to grant the applicants secure tenancies of a council house, it should adopt any other way of helping the applicants to obtain secure housing whether by cash or other aid or by amending the allocation scheme so as to give some weight to legitimate expectations in cases similar to the present, of which we understand there to be a number.
59. But when the Authority looks at the matter again it must take into account the legitimate expectations. Unless there are reasons recognised by law for not giving effect to those legitimate expectations then effect should be given to them. In circumstances such as the present where the conduct of the Authority has given rise to a legitimate expectation then fairness requires that, if the Authority decides not to give effect to that expectation, the Authority articulate its reasons so that their propriety may be tested by the court if that is what the disappointed person requires.

What should the court do?

60. Coughlan emphasised the importance of considering these questions in their statutory context which is why we have set this out earlier in this judgment. We have drawn attention to the changing Parliamentary perceptions of priorities and to the changed understanding of the law.
61. In the context of housing Lord Brightman said of the Act of 1977 in R v Hillingdon L.B.C., ex parte Puhlhofer [1986] A.C.484, p.517,

"It is an Act to assist persons who are homeless, not an act to provide them with homes … It is intended to provide for the homeless a lifeline of last resort; not to enable them to make inroads into the local authority's waiting list of applicants for housing. Some inroads there are probably bound to be, but in the end the local authority will have to balance the priority needs of the homeless on the one hand and the legitimate aspirations of those on their housing waiting list on the other hand."

62. In Awua Lord Hoffmann, who delivered the only reasoned speech, said at page 71 after quoting these words:

"Those remarks seem to me still as true and perceptive as they were in 1986."

63. The present case illustrates a potential conflict between the "legitimate aspirations" of those who have been told where they are on the housing waiting list and what the Authority's allocation scheme is on the one hand and the "legitimate expectations" of those to whom promises have been made by the Authority the fulfilment of which conflicts with the priorities contained in the allocation scheme on the other.
64. In an area such as the provision of housing at public expense where decisions are informed by social and political value judgments as to priorities of expenditure the court will start with a recognition that such invidious choices are essentially political rather than judicial. In our judgment the appropriate body to make that choice in the context of the present case is the authority. However, it must do so in the light of the legitimate expectations of the respondents.
65. Turner J declared that the Authority were "bound to treat the duties originally owed by them to both applicants under section 65(2) as not discharged until the applicants be provided by them with suitable accommodation on a secure tenancy". Rightly, he did not direct that they be given priority over everyone else who was on the housing register and was seeking the same type of accommodation. The applicants' counsel have not suggested that he should have so directed. They wish merely to hold the declaration which was made.
66. The Judge accepted that the applicants each have a legitimate expectation that they would be provided with suitable accommodation on a secure tenancy. We agree. However, we consider that the Judge went too far in the form of declaration which he made since it seems implicit in his declaration that there can not be factors which inhibit the fulfilment of the legitimate expectations, even where the Authority has never so concluded.
67. We consider that it would be better simply to declare that the Authority is under a duty to consider the applicants' applications for suitable housing on the basis that they have a legitimate expectation that they will be provided by the Authority with suitable accommodation on a secure tenancy.
68. The applicant Bibi placed before the court a respondent's notice which we gave permission to serve out of time. This respondent's notice sought to uphold the order of Turner J on additional grounds. It did not seek a different order. Since the effect of this judgment is that the Authority will have to apply its mind to the position of each of the applicants again in the light of their legitimate expectations we need say no more about the additional grounds.
69. We propose therefore to allow this appeal in part, to set aside the declaration made by Turner J in paragraph 2 of the order and to substitute a declaration that the Authority is under a duty to consider the applicants' applications for suitable housing on the basis that they have a legitimate expectation that they will be provided by the Authority with suitable accommodation on a secure tenancy.
70. Order: Appeal allowed in part; no order for costs in this count; costs in lower count to stand. Claimants costs assessed in accordance with community legal services; permission to appeal to House of Lords refused.