A decision of Western Isles Council has been set aside by the Court of Session in a judicial review. The judgement serves as a helpful reminder to local authorities and other decision makers of the concept of alternative remedies as a defence in judicial review and on the duty to provide reasons.
Facts
CA brought the judicial review on behalf of his uncle, AM, for whom he was financial and welfare attorney. The judicial review challenged two decisions of Westerns Isle Council ("the Council") on 7 March 2024 and 21 May 2024 following assessments of AM's needs for community care services under the Social Work (Scotland) Act 1968 ("the 1968 Act").
CA challenged both of these decisions and sought that the decisions be set aside and for a declarator that AM's needs called for the provision of residential care in terms of the Council's duties under the 1968 Act. CA argued that:
- the Council was under a duty to provide reasons for the conclusions reached in its assessments of AM's needs;
- the Council's decisions were irrational;
- the Council's decisions were inadequately reasoned; and
- the ability to refer the Council's decisions to the Scottish Public Services Ombudsman ("the SPSO") did not provide an effective alternative remedy.
In this case, the Court had to consider whether the availability of raising a concern with the SPSO was an alternative remedy which prevented CA from bringing a judicial review.
Judgment
The Court provides a useful and succinct summary of the duty to provide reasons and where the duty will arise even if the power of a decision maker is silent on the duty to provide reasons. We recently considered these issues in a recent post as part of this series on judicial review.
The judgment also provides a useful summary of the law relating to alternative remedies as a defence for decision makers in judicial review. The Court held that the general rule is that judicial review is a remedy of last resort and that it will be inappropriate where an alternative remedy is available to the aggrieved person, and they have not used or exhausted it.
The Council argued that CA ought to have challenged the Council's decision by reference to the SPSO and that in a fact specific case such as the present one that was the appropriate remedy meaning that the judicial review should not proceed. The Council argued that the Inner House (Scotland's highest appeal court) had decided in the case of McCue that it was open to the Court to dismiss the judicial review if it considered that the matter was one more properly directed to the SPSO as opposed to the Court.
The Court rejected that argument. In relation to the Council's decisions, the Court considered the powers of the SPSO under section 7(8) of the Scottish Public Services Ombudsman Act 2002 Act 2002 ("the 2002 Act"):
"The Ombudsman must not investigate any matter in respect of which the person aggrieved has or had—
c) a remedy by way of proceedings in any court of law, unless the Ombudsman is satisfied that, in the particular circumstances, it is not reasonable to expect the person aggrieved to resort or have resorted to the right or remedy"
The Court decided that the effect of the decision of the Inner House in McCue was that section 7(8) did not prevent the SPSO accepting a complaint for investigation where judicial review proceedings had been dismissed on the basis that the complaint raised was a complaint which was not within the scope of judicial review. In other words, if judicial review was not open to an aggrieved person and it was incompetent, the SPSO could investigate.
In CA's case, there was no suggestion that judicial review was incompetent and simply that the SPSO was a suitable alternative remedy. The Court rejected that argument and found that in CA's case judicial review should be viewed as an avenue of last resort which should not be entertained until an alternative remedy was exhausted. The Court found that there was nothing in the 2002 Act or case law that required an individual to go to the SPSO before bringing a judicial review. The fact that section 7(8) of the 2002 Act excluded the SPSO from considering cases where a judicial review could be brought pointed towards there being no obligation to go to the SPSO if a judicial review was competent.
The effect of this is that where an SPSO complaint is possible, the aggrieved party can choose between a judicial review and the SPSO. There is no requirement to go to the SPSO. Conversely, if the aggrieved party brings a judicial review, they can no longer go to the SPSO because of section 7(8) of the 2002 Act. Once the SPSO is no longer able to consider matters, because a judicial review is live, it is inappropriate to consider the SPSO as an alternative remedy.
Comment
The concept of "alternative remedy" is a useful one for decision-makers and it can require persons aggrieved by public sector decision making to exhaust all remedies open to them prior to bringing a judicial review. For example, if there was a statutory appeal route for challenging the Council's decision making, a judicial review would be incompetent because there would be an alternative remedy which had not been exhausted.
However, this case serves as a useful reminder to decision makers that the ability to make complaints to the SPSO does not necessarily mean a judicial review is incompetent. A public sector decision-maker could receive a complaint but also be subject to judicial review. The aggrieved person, in relevant cases, has a choice between complaining and bringing a legal challenge by judicial review.
In cases where there are no formal appeal routes available, public sector decision makers should be alive to the risk of judicial review. They should be aware that complaints procedures do not oust the Court's ability to consider judicial reviews and that legal input should be sought in cases where complaints may turn into legal challenge by judicial review.
In other words, public authorities should not rely too heavily on the availability of a complaints procedure and should be aware that final decisions may be judicially reviewed even if a complaints process has not been followed in certain circumstances.
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