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Alternative remedies and judicial review

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Alternative remedies and judicial review


19 August 2014

Lord Jones recently dismissed a petition brought against  Glasgow City Council challenging a decision about what services they would provide in respect of a boy with Down Syndrome (McCue, Petr [2014] CSOH 124).  He did so on grounds that have repercussions for all judicial reviews brought against local authorities in respect of their social services functions.  As a general rule, people wishing to complain about social services decisions must use the Council’s statutory complaints procedure first (under the Social Work (Scotland) Act 1968)  before resorting to judicial review.  This may entail also going on to the Public Services Ombudsman if the Council’s complaints procedure does not resolve the case satisfactorily.

The decision is of interest for a number of reasons but here are two.  First, it is in keeping with the thrust of the current court reform that disputes should be resolved at the appropriate level.  The real underlying dispute was whether the Council should pay for 20 additional nights of respite care a year which, while important to the petitioner, was not a high monetary value dispute.  The law requires Councils to set up complaints procedures for the airing of these types of disputes.  In Glasgow these are three tiered systems, the final stage of which is a decision by an independent 3-person review committee with social work and tribunal experience in its members.  There seems much common sense in scarce public funds not being used to fund expensive court actions unless absolutely necessary, where there is already a statutory means of resolving disputes, the sums at  stake are not large, and public funds may therefore be conserved to provide frontline services.   Second, Lord Jones considers the law of alternative remedies as it operates in judicial review more widely.  He finds (albeit obiter) that non-statutory avenues of recourse can also be alternative remedies barring judicial review, after considering the nature and origins of the supervisory jurisdiction.

Anna Poole QC of Axiom Advocates acted on behalf of Glasgow City Council.

http://www.scotcourts.gov.uk/search-judgments/judgment?id=0e579fa6-8980-69d2-b500-ff0000d74aa7