The first factor is the nature of the policy. There is a spectrum of different kinds of policy. It ranges from the most formal to the most informal. The second factor is the deference that the Court ought to pay to the decision-maker in deciding whether uit had good reason to depart from its policy. Some level of weight should be attached to the judgment of a specialist experienced decision-maker. The required deference is also on a spectrum.

There is no bright line rule that good reasons can be reviewed only if they are irrational or unreasonable. In considering whether a decision-maker had good reason for departing from a policy one considers first where on the spectrum of policies the relevant one lies and where on the spectrum of appropriate deference the particular type of decision lies.

So held in R ( DUKE OF SUSSEX ) v SSHD ( 2025 ) EWCA Civ 548 at paras 62-69 inc.

In R (GRANTCHESTER PARISH COUNCIL) v GREATER CAMBRIDGE PARTNERSHIP and CAMBRIDGESHIRE COUNTY COUNCIL and others (2025) EWHC 923 (Admin) Lieven J states, at para 46, that the parameters of what statements can give rise to a legitimate expectation and in what circumstances are complex, with a large number of authorities on various different factual situations. She observes: “When considering these cases it is important to have regard to the precise factual legal context in which many of the judicial pronouncements were made”. At para 47, she identifies 3 key stages: (1) Was there a clear and unambiguous commitment? (2) Was it reasonable and legitimate for the promisee to rely upon it against the public authority? (3) Would it be inappropriate to allow the promisee to enforce the commitment? At para 49 she states that the burden of establishing a commitment which is clear, unambiguous and devoid of relevant qualification rests on the person asserting it; at para 50 that a distinction is drawn between what will be required in cases of substantive legitimate expectation rather than procedural expectation; and at para 56 that if the promise would interfere with the public authority’s statutory duty it cannot give rise to a legitimate expectation.

In R (AB) v BRISTOL CITY COUNCIL and ES and JX v DEVON COUNTY COUNCIL (2025) EWCC 1 a judicial review challenge failed to the entry by the Councils into “Safety Valve Agreements” with the Department of Education in relation to deficits in the Dedicated Schools Grant pursuant to Section 14 of the Education Act 2002.  The allegations included breach of the duty to consult under Section 27(3) of the Children and Families Act 2014 and of the PSED.  Linden J accepted (para 18) that there was a “powerful reason” for the Councils to take steps to address their deficits at the times when they decided to participate in the Safety Valve Programme and to enter into their SVA.

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