Legitimate Expectation and Social Security Law Under the European Convention of Human Rights
| Author | Mel Cousins |
| DOI | 10.1177/1388262720961792 |
| Date | 01 March 2021 |
| Published date | 01 March 2021 |
| Subject Matter | Articles |
Article
Legitimate Expectation and
Social Security Law Under the
European Convention of
Human Rights
Mel Cousins
Trinity College, Dublin, Ireland
Abstract
The concept of ‘legitimate expectation’ is one which has developed to different degrees in the
domestic laws of contracting states of the Council of Europe. The European Court of Human
Rights tends to use the term is two related contexts. First, the Court refers to legitimate
expectation as a way of expanding the scope of ‘possessions’ within the meaning of Article 1 of
Protocol 1 (P1-1) of the European Convention of Human Rights in order to bring an issue within
the purview of the Court. Second, the Court uses the term to refer to a person’s expectations as
to the future peaceful enjoyment of their possessions. The failure by the Court to define clearly
what it means by the term ‘legitimate expectation’ and its use in two different (if related) ways has
led to significant confusion in the Court’s jurisprudence as it concerns social security.
Keywords
Social protection, European, Court, human, rights
‘The Court’s existing case-law on legitimate expectations is difficult to understand, due to lack of
precision and inconsistencies’.
1
Introduction
This article examines the how the concept of ‘legitimate expectation’ has been understood and
applied by the European Court of Human Rights in cases involving social security issues.
Corresponding author:
Mel Cousins, Trinity College, College Green, Dublin 2, Ireland.
E-mail: COUSINSM@tcd.ie
1. Judge Wojtyczek (concurring) in B´
el´
an´
e Nagy v Hungary, 53080/13, 13 December 2016 at [2].
European Journal of Social Security
2021, Vol. 23(1) 24–43
ªThe Author(s) 2020
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DOI: 10.1177/1388262720961792
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The concept of ‘legitimate expectation’ is one which has developed to different degrees in the
domestic laws of contracting states of the Council of Europe. The European Court of Human
Rights tends to use the term is two related contexts. First, the Court refers to legitimate expectation
as a way of expanding the scope of ‘possessions’ (or property) within the meaning of Article 1 of
Protocol 1 (P1 -1) of the European Convention of Human Rights (set out in full in section 1 of this
article) in order to bring an issue within the purview of the Court. Second, the Court uses the term
to refer to a person’s expectations as to the future peaceful enjoyment of their possessions. The
failure by the Court to define clearly what it means by the term ‘legitimate expectation’ and its use
in two different (if related) ways has led to significant confusion in the Court’s jurisprudence as it
concerns social security.
The confusion may have arisen from the f act that, as the Court pointed out in Kopecky v
Slovakia, the notion of legitimate expectation was first developed in Pine Valley v Ireland,
2
a
case concerning land purchased with outline planning permission. The purchaser had relied on this
official act (the grant of planning permission) in purchasing the land. The planning permission was
later nullified, and the value of the land was therefore much reduced. The Irish courts found that the
plaintiffs had no right to compensation but the ECtHR ruled that ‘the applicants had at least a
legitimate expectation of being able to carry out their proposed development and this has to be
regarded, for the purposes of Article 1 of Protocol No. 1 (P1 -1), as a component part of the
property in question’.
3
Thus in that case, the concept of legitimate expectation related both to the
scope of the property right and its future use.
4
InacasesuchasPine Valley, the legiti mate
expectation that planning permission was granted was separate to the ownership of the property
and had a significant impact on the pecuniary value of that property. In contrast, when the Court
refers to a legitimate expectation of continuing to receive disability benefits should a claimant’s
disability persist,
5
the situation is rather different. There is generally no separate legal act relating
to the future payment.
6
And the legitimate expectation may add nothing to the pecuniary value of
the benefits.
It is now trite law that almost all (if not all) social security benefits will be considered to fall
within the concept of ‘possessions’ for the purposes of Article 1 of Protocol 1 of the European
Convention on Human Rights (P1 -1).
7
In a potentially important ruling in December 2016, the
Grand Chamber of the Court (albeit closely divided) held in B´
el ´
an´
e Nagy that a Hungarian woman
who did not have a right to a disability pension under national law, nonetheless had a ‘legitimate
expectation’ in relation to the pension which fell within the scope of P1 -1 (and, on the facts of the
case, found a breach of the Convention).
8
In very general terms, a legitimate expectation in the context of social security law is a legal
interest that a person can invoke to require a social security agency or pension provider to act or
refrain from acting, although such behaviour is not otherwise required by statute law. However, the
2. 12742/87, 29 November 1991.
3. Pine Valley at [51].
4. A similar pattern can be seen in some subsequent cases such as Stretch v United Kingdom, 44277/98, 24 June 2003.
5. B´
el´
an´
e Nagy at [94].
6. Although the Court, in a number of cases, appears to interpret an award of benefits as implying an ongoing award of
benefits.
7. Stec v United Kingdom, 65731/01 and 65900/01, 6 July 2005, ECHR 2005-X, (2005) 41 EHRR SE 295.
8. B´
el´
an´
e Nagy v Hungary, 53080/13, 13 December 2016. See Rivi`ere (2017); Leijten (2019).
Cousins 25
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