It is rare for sheltered housing to hit the headlines, but the furore over the decision by many providers to remove resident wardens from existing schemes has made front page news.
As the recession forced providers to cut costs, wardens were an obvious target - especially when more cost effective options such as remote monitoring offered a cheaper and (in the service provider’s eyes) comparable alternative.
But for many elderly people, already feeling let down by society generally, the decision lit an unlikely touch paper of rebellion and many are fighting back.
Protests, marches and adverse publicity are headache enough, particularly when we are talking about the treatment in old age of the generation who, in many cases, fought in at least one world war for our freedom. But is there also a legal headache for service providers?
Assuming that service providers can establish that they are under no contractual obligation to provide a resident warden, they may think that they are in the clear legally, if not politically. But public authorities including local authorities as well as possibly housing associations, charities and others, should also consider whether their past conduct has given rise to a legally enforceable legitimate expectation that resident wardens will be provided.
The public law principle of legitimate expectation has developed rapidly in recent years in cases on subjects as diverse as immigration appeals and the government’s decision to give the green light to a new generation of nuclear power stations.
While it is a relatively new concept, it has already gained an important status, having been compared by at least one senior judge to such a basic legal principle as the right to a fair trial.
The principle has been defined by the courts as meaning that:
“Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so.”
A promise is usually easy to recognise and if a public authority has made a commitment in the past that a resident warden will be provided in a scheme then there is a clear risk of a legitimate expectation arising. The promise need not be in a formal legal document and could simply have been, for example, a statement given at a residents’ meeting. If the residents can establish that a promise was made in the past, they may well have a legally enforceable legitimate expectation.
An adopted practice is a little harder to recognise and is also the category that is likely to have the most potentially serious impacts for providers of sheltered housing. If residents can show that it has been the practice of a particular public provider of sheltered housing to provide a resident warden on a particular scheme, that may well give rise to a legally enforceable legitimate expectation that a resident warden will continue to be provided.
Overcoming a legitimate expectation
Even if a legitimate expectation does arise, it can be overcome in some circumstances.
If the public authority is under a statutory obligation to do (or stop doing) something that would constitute a breach of a legitimate expectation, then this is an absolute defence to any claim.
It is difficult to see that such a statutory obligation exists in the case of a decision to stop providing a resident warden, but if this could be demonstrated the public authority is out of the woods, at least as far as having to face a legitimate expectation claim is concerned.
In the absence of a statutory obligation to justify their actions, public bodies must demonstrate that any breach of a legitimate expectation is proportionate, taking account of the public interest. Every case will turn on its own facts, but it is conceivable that the need to balance the books could justify a decision to discontinue the provision of resident wardens.
Being a public law principle, legitimate expectation should not trouble private providers of sheltered housing - although they should be thinking about the private law equivalent, known as estoppel - but in the face of such public opposition and outcry at the decision to remove resident wardens, public authorities should make sure that the risk of a legally enforceable legitimate expectation arising is factored into the mix.
Trevor Ivory is an associate at Eversheds. www.eversheds.com