Legitimate Expectation and Consultation Obligations: Analysis of MP v Secretary of State for Health and Social Care [2020] EWCA Civ 1634

Introduction

In the landmark case MP v Secretary of State for Health and Social Care [2020] EWCA Civ 1634, the England and Wales Court of Appeal addressed significant issues surrounding the regulation of charges imposed by the National Health Service (NHS) on overseas visitors. The appellant, MP, faced the imposition of large sums for NHS treatment following a diagnosis of blood cancer and a refusal of indefinite leave to remain in the United Kingdom. MP challenged the National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017 on the grounds that these provisions were enacted without proper consultation, thereby violating principles of administrative law and creating an unjust financial burden.

Summary of the Judgment

The Court of Appeal dismissed MP’s appeal, upholding the decision of the First-tier Tribunal. The core of the judgment rested on two primary arguments presented by MP: (1) the Secretary of State failed to consult on the advance payment and recording of information provisions, and (2) there existed a legitimate expectation for consultation based on past practices. The court found that the 2017 Regulations, which amended the 2015 Regulations to extend NHS charging to community services and introduce advance payment and recording requirements, did not breach the statutory obligations for consultation. Additionally, the court concluded that no legitimate expectation for consultation existed, as past practices were inconsistent and did not establish a clear and uniform pattern warranting expectation.

Analysis

Precedents Cited

The judgment extensively referenced several key cases to underpin its reasoning on legitimate expectation and consultation obligations:

Council of Civil Service Unions v Minister for the Civil Service (CCSU) [1985] AC 374: Established that legitimate expectation arises either from express promises or consistent practices that stakeholders can reasonably expect to continue.
R v Inland Revenue Commissioners, Ex p MFK Underwriting Agents Ltd [1989] 1 WLR 1545: Clarified that representations creating legitimate expectations must be clear, unambiguous, and devoid of relevant qualifications.
R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139: Demonstrated that inconsistent consultation practices weaken claims of legitimate expectation.
R (on the application of Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213: Reinforced the necessity for clear and unambiguous representations to establish legitimate expectations.

These precedents collectively emphasize the stringent criteria required for establishing legitimate expectations and the limited circumstances under which a duty to consult arises.

Legal Reasoning

The Court of Appeal’s legal reasoning centered on two main facets: the scope of the consultation obligations and the threshold for establishing legitimate expectation.

Consultation Obligations: The court examined whether the Secretary of State was bound to include the advance payment and recording of information provisions within the scope of the 2015 consultation on NHS charging regulations. It determined that these provisions were discrete and self-contained, not sufficiently linked to the consulted proposals to necessitate inclusion in the consultation process. The court highlighted that unless there is a statutory obligation to consult on specific amendments, the initiation of consultation on certain proposals does not implicitly extend the duty to consult on unrelated or minor amendments.
Legitimate Expectation: The court evaluated whether MP could claim a legitimate expectation for consultation based on past practices. Drawing on established case law, it required that such expectations be founded on clear and unambiguous representations, either through explicit promises or well-established and consistent practices. The court found that the historical consultation practices related to NHS charging were inconsistent and did not establish a sufficiently uniform pattern to create a legitimate expectation for consultation on the 2017 amendments.

Consequently, the court held that the Secretary of State acted lawfully by amending the regulations without specific consultation on the advance payment and recording of information provisions and that MP had not demonstrated a legitimate expectation warranting such consultation.

Impact

This judgment has profound implications for administrative law and the formulation of public policies, particularly in areas involving statutory regulation and public consultation. Key impacts include:

Clarification of Consultation Obligations: The decision delineates the boundaries of consultation requirements, reaffirming that not all regulatory amendments necessitate public consultation, especially when changes are discrete and self-contained.
Refinement of Legitimate Expectation Doctrine: By emphasizing the need for clear, unambiguous, and consistent representations or practices, the judgment tightens the criteria for establishing legitimate expectations, thereby limiting frivolous claims and ensuring administrative flexibility.
Guidance for Policy Makers: Public authorities are provided with clearer guidelines on when consultation is legally required, allowing for more efficient policy implementation while respecting procedural fairness.

Future cases involving challenges to regulatory changes will likely reference this judgment, particularly regarding the necessity and extent of consultations and the rigorous standards for legitimate expectation claims.

Complex Concepts Simplified

Legitimate Expectation

Legitimate expectation is a principle in administrative law where individuals or groups have a reasonable expectation that a public authority will act in a certain way, based on promises, policies, or consistent past practices. There are two types:

Procedural Legitimate Expectation: Involves the expectation of a fair and transparent procedure, such as a duty to consult before making significant changes.
Substantive Legitimate Expectation: Involves expecting specific outcomes or benefits based on assurances or established practices.

For a legitimate expectation to be enforceable, the expectation must be clear, unambiguous, and arise from either explicit promises or highly consistent and established practices.

Consultation Obligations

When public authorities propose changes that affect stakeholders, they often engage in consultation to gather input and feedback. However, the legal obligation to consult is contingent upon statutory requirements, the nature of the proposals, and whether there exists a precedent or practice necessitating consultation. Not all regulatory changes require consultation, particularly if they are minor or unrelated to previously consulted matters.

Conclusion

The Court of Appeal's decision in MP v Secretary of State for Health and Social Care reinforces the high threshold required to establish legitimate expectations and clarifies the boundaries of consultation obligations for public authorities. By dismissing MP's appeal, the court underscored that regulatory amendments, particularly those that are discrete and self-contained, do not automatically demand public consultation unless explicitly mandated by law or established by clear, consistent practices. This judgment serves as a critical reference point for future administrative challenges, ensuring that while procedural fairness remains paramount, public authorities retain the necessary flexibility to implement regulatory changes efficiently.

Ultimately, this case highlights the delicate balance between safeguarding individual expectations and granting public bodies the autonomy to adapt and reform regulations in response to evolving societal and administrative needs.