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Judge Further Clarifies When Care Decisions Can Be Subject to Judicial Review

A claimant cannot bring a decision under judicial review unless they have exhausted all alternative remedies – even if these remedies are non-statutory says Court of Session Judge.

Terri McCue submitted a petition for judicial review of a decision of Glasgow City Council in relation to an assessment of her son’s care needs under the Social Work (Scotland) Act 1968.

Lord Jones dismissed her petition, on the grounds that she had not pursued the counsil’s complaints procedure. It was argued on behalf of Ms McCue that even though an alternative remedy exisited, in order to rule out judicial review the remedy had to be;

(1) created by statute, and

(2) the terms of the statute, explicitly or by necessary implication, excluded the supervisory jurisdiction.

Lord Jones considered that the preceding case law did not support the argument put forward that there had to be statutory exclusion of the supervisory jurisdiction of the court.

The case West v Secretary of State for Scotland (1992) in which it was held that the essential feature of the jurisdiction was the conferring, by statute or private contract, of a decision-making power or duty on a third party was relied upon. Thus it was concluded that tt was irrelevant whether the power was conferred by statute or not. Lord Jones said;

“If such injustice is capable of being remedied by means available to the aggrieved party other than by application to the court, there is no reason in principle or logic why the aggrieved party should not be required to resort to it, simply because the remedy does not lie in statute.”

Lord Jones continued to outline that in fact, the complaints procedure could be deemed to constitute a statutory remedy because it was established in order to comply with a statutory order by the Secretary of State. However, it would not have been possible at this point to take a complaint to the Scottish Public Services Ombudsman, as a result of the existence of the complaints procedure.

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