In a recent decision McCue v. Glasgow City Council [2020] CSIH 51 the Inner House of the Court of Session considered whether a complaint to the SPSO can be considered an alternative remedy to judicial review proceedings.

Background

The petitioner's son is entitled in law to community care services from the respondent, Glasgow City Council (the Council). Notwithstanding the petitioner's son is entitled to such services, section 87 of the Social Work (Scotland) Act 1968 ('the 1968 Act') provides the Council with the power to levy a charge for the services provided. If the Council is satisfied that a contribution to the services should be paid, it can then apply certain deductions to reduce the contribution (for example, disability related expenditure).

In a letter dated 14 August 2018, following a reassessment of the petitioners' sons care services, the Council advised certain items could not properly be considered as disability related expenditure. In May 2019 the petitioner raised judicial review proceedings which sought, amongst other things, reduction of the Council's decision of 14 August 2018.

The Lord Ordinary's decision

The Lord Ordinary held that the petitioner had an available alternative remedy for all grounds of challenge in the form of a complaint to the Scottish Public Services Ombudsman ('the SPSO'). This meant the court did not have jurisdiction to hear the petition and it was dismissed.

In making her decision the Lord Ordinary rejected a submission that section 7(8) of the Scottish Public Services Ombudsman Act ('the 2002 Act') prevented the SPSO from considering any matter where a complainer could otherwise bring proceedings for judicial review. Section 7(8) of the 2002 Act prevents the SPSO investigating any matter where the complainer has or had a right of appeal to a Minister of the Crown, Scottish Minister, tribunal or other remedy by way of proceedings in any court of law.

The petitioner appealed seeking review of the Lord Ordinary's decision.

The decision of the Inner House

The Inner House (the Court) held the Lord Ordinary erred in finding that the court did not have jurisdiction.

One of the questions the Inner House had to consider was whether reference to 'remedy by way of proceedings in any court of law' at section 7(8) of the 2002 Act included judicial review proceedings. The Court was clear that section 7(8) of the 2002 Act encompassed judicial review proceedings.

The Inner House observed that the jurisdiction of the SPSO will be 'ousted' when judicial review proceedings have been raised and there is a possibility of a successful remedy. However, where the complainer does not pursue judicial review proceedings, the SPSO will have discretion as to whether it investigates the complaint. In exercising this discretion, the Court highlighted that the SPSO will likely have consideration for the nature of the remedy sought and if the complaint raised issues more suited to be determined by a court of law. Likewise, the Court was of the view that it may be appropriate in some cases to dismiss a petition for judicial review where the SPSO would be better placed to deal with the issues raised in the complaint.

The Court accepted that determining whether a complaint should be made to the SPSO, or whether judicial review proceedings should be raised, was not a simple task. The Court suggested where the complaint involved fact specific/one off issues, the SPSO would be best placed to deal with the complaint. However, where the complaint related to a 'systematic failure across the board', judicial review proceedings may be more appropriate.

Commentary

This decision shows that the question of whether a complaint to the SPSO can be considered an alternative remedy to judicial review proceedings is not as black and white as it may initially seem. The decision suggests that the circumstances and nature of the complaint will be relevant factors in deciding whether a complaint is one which falls within the supervisory jurisdiction of the court or should be determined by the SPSO. What is clear, however, is that the availability of a complaint to the SPSO will not in itself always 'oust' the jurisdiction of the court.

However, there are potentially some difficulties with regards to the time limits for raising judicial review proceedings and making a complaint to the SPSO. In Scotland, judicial review proceedings must generally be raised within three months of the date of the relevant decision being complained about. The 2002 Act requires complaints to be made to the SPSO within 12 months of the date the complainer first had notice of the matter complained of. This means there is a clear risk that if someone decides to pursue a complaint to the SPSO, and it later transpires that the complaint raises issues more suited to be dealt with by the supervisory jurisdiction of the court, that person will be out with the time limit for raising such proceedings. Of course, the court may take this into account when considering any application to extend the time limit for raising judicial review proceedings. However, it will be best practice to consider at the earliest possible stage whether judicial review proceedings may be appropriate. By adopting this approach, even if the petition is dismissed by the court at the permission stage, the complainer will still be able to pursue a complaint to the SPSO.