In The Petition Of Terri Mccue As Guardian Of Adult Son Andrew Mccue For Reduction Of Certain Decisions Of Glasgow City Council
| Jurisdiction | Scotland |
| Judge | Lord Jones |
| Neutral Citation | [2014] CSOH 124 |
| Docket Number | P229/14 |
| Date | 08 August 2014 |
| Court | Court of Session |
| Published date | 08 August 2014 |
OUTER HOUSE, COURT OF SESSION
[2014] CSOH 124
P229/14
OPINION OF LORD JONES
In the Petition
TERRI MCCUE, AS GUARDIAN OF HER ADULT SON ANDREW MCCUE (AP)
Petitioner;
for
Reduction of certain decisions of Glasgow City Council
Petitioner: Komorowski; Balfour + Manson LLP
Respondent: Poole QC; Glasgow City Council
8 August 2014
(i) In this application, the petitioner sought judicial review of a number of decisions made by the respondent in exercise of obligations imposed on it by the terms of the Social Work (Scotland) Act 1968. At a preliminary hearing, the respondent argued that the petition should be dismissed on the grounds that (i) it raises no live issue and (ii) an alternative remedy is available to the petitioner and has not been pursued.
(ii) I dismissed the petition as incompetent because there is available to the petitioner an alternative remedy which she has not pursued.
Introduction
[1] The petitioner (“Mrs McCue”) is the guardian of her adult son, Andrew McCue (“Mr McCue”). The respondent (“the Council”) is a local authority within the meaning of the Social Work (Scotland) Act 1968 (“the 1968 Act”). Mr McCue has Down syndrome, his capacity is impaired, and he is in need of community care services. Section 12A of the 1968 Act provides, in essence, that, where it appears to a local authority that any person for whom they are under a duty to provide community care services may be in need of such services, the authority must make an assessment of the needs of that person and then decide whether those needs call for the provision of such services.
[2] The Council has carried out an assessment of Mr McCue’s needs. Mrs McCue is dissatisfied with the outcome. In this application for judicial review, she takes issue with certain aspects of the assessment process and seeks to have certain of the Council’s decisions reduced. In its answers to the petition, the Council has tabled two preliminary pleas-in-law, the first being that the petition is academic, and the second that it is barred by Mrs McCue’s failure to exhaust alternative remedies. The Council pleads that, on either ground, the petition should be dismissed.
[3] The alternative remedies to which the Council refers are to be found in its complaints procedure and in the provisions of the Public Services Ombudsman Act 2002 (“the 2002 Act”).
[4] A preliminary hearing was held on 9 May 2014. With reference to the Council’s second plea-in-law, which was argued first, the parties are agreed that the existence of an alternative remedy can operate to bar recourse to the court’s supervisory jurisdiction. They are divided on three issues. It is argued on behalf of Mrs McCue that: (i) resort to judicial review is excluded only where the alternative remedy is provided by statute; (ii) the Council’s complaints procedure is not a statutory remedy; and (iii) no remedy is available to Mrs McCue under the provisions of the 2002 Act. The Council takes a contrary position in respect of each issue.
[5] In a Note of Argument that the Council had lodged in advance of the hearing, it submitted that the decisions which Mrs McCue sought to reduce had been superseded by later decisions which were not challenged. That submission was the foundation for the Council’s first plea-in-law. In response, those representing Mrs McCue adjusted the petition. The Council, however, did not depart from its first plea-in-law, which raises a fourth question: whether the petition should be dismissed on the ground that it raises no live issue.
[6] Before considering the issues, it is necessary to describe what the Council argues are the alternative remedies.
Alternative remedies
[7] At the preliminary hearing, Miss Poole QC opened the discussion on behalf of the Council. She said that two mechanisms exist whereby the Council’s decisions may be reviewed. The first arises under section 5B of the Act. That section is headed “Complaints procedure”, and provides that the Secretary of State may require local authorities to establish a procedure whereby certain persons may make representations (including complaints) in relation to the local authority’s discharge of its functions under certain statutes, including the 1968 Act. (Section 5B(1)) Mrs McCue and Mr McCue are such persons. In exercise of that power, and so far as is relevant to this case, the Secretary of State made the Social Work (Representations Procedure) (Scotland) Order 1990/2519 (“the Order”), which required every local authority to establish a procedure whereby a person may make representations, including complaints, about the authority's discharge of, or failure to discharge, any of their functions under the 1968 Act. Section 5B(6) provides that a local authority shall comply with any directions given by the Secretary of State as to the procedure to be adopted in considering representations and as to the taking of such action as may be necessary in consequence of such representation. Miss Poole submitted that the natural inference to be drawn from the terms of section 5B and the Order is that the complaints procedure was intended to be the primary route to be used to the resolution of disputes such as the one in this case.
[8] The Social Work (Representation Procedures) (Scotland) Directions 1996 (“the Directions”) were given to local authorities by the Secretary of State “in exercise of the powers conferred on him by section 5B(6)” and, being Directions, must be complied with by them. Local authorities have to ensure the following things:
(i) the complaints procedure is to conform to the requirements specified in the Directions, and otherwise is to be such as local authorities may determine (Direction 2);
(ii) the procedure is to include provision for the following:
(a) that a response in writing to the substance of any representations is to be issued to the complainer as soon as reasonably practicable and within 28 days after receipt of the representations;
(b) that if a complainer informs the local authority in writing that he is not satisfied with the response and wishes the matters to be referred to a review committee the matter will be referred “forthwith” to a review committee for review;
(c) that the review committee shall make recommendations in writing to the social work committee or other responsible committee as soon as is reasonably practicable and within 56 days after the complainer has requested reference to it;
(d) that the local authority shall as soon as is reasonably practicable within 42 days of receiving the review committee’s recommendations decide what action to take and notify the complainer in writing of that decision and, where a review committee recommendation has been disregarded, the reasons for doing so; and
(e) that where a local authority disregards a recommendation of the complaints review committee, the reasons for the decision are given to the complainer in writing accompanied with any relevant advice and also appear in full in the minutes of the relevant meeting of the responsible committee of the local authority and are made available for public scrutiny. (Direction 10)
[9] The expression “review committee” is defined as meaning any responsible committee of the local authority which is appointed for the purpose of reviewing any matter in accordance with the procedure. Such committee is to consist of three persons, the chairperson and two members, the chairperson having knowledge of social work matters and the conduct of proceedings before a review body or tribunal and each member having experience in at least one of these areas. The chairperson is to be an “independent person” as defined in the directions.
[10] Miss Poole said that the directions were issued by the Scottish Office, together with guidance, in the form of SWSG5/1996. The latter provides for three stages in the procedure as follows:
(i) an informal problem solving stage when every attempt will be made to resolve the complaint by the local authority involved;
(ii) unresolved complaints will normally be investigated by specially designated staff;
(iii) if the complaint remains unresolved a request can be made for “the formal Complaints Review Committee” (“CRC”) to consider it.
[11] The Council’s latest Social Work Services procedures and guidance notes for handling complaints were issued in July 2002. Section 1.2 is entitled “Statutory complaints procedures” and paragraph 1.2.3 provides that “statutory complaints” may be made in respect of a number of issues which include: failure to discharge social work services functions; delay in the discharge of such functions; failure properly to assess the needs of clients and their carers during the discharge of such functions; failure to give due consideration to the needs and wishes of individual clients and their carers when making decisions about service provision; and providing a service that quantitatively or qualitatively fails to meet the reasonable expectations of a client. In this case, Mrs McCue’s complaint is that the Council have failed properly to assess Mr McCue’s needs. (In section 1 of the document, entitled “The Framework: Definitions and Legislative Requirements”, the expression “statutory complaint” is defined as “one that falls within the definition outlined in the Social Work (Representations Procedure) (Scotland) Directions 1996”. There is no definition of “complaint” in the Directions, however, and the expression “statutory complaint” does not appear. “Representations” is defined to include complaints, “and means representations submitted in accordance with the procedure”. It is to be assumed that a “statutory complaint” is simply a complaint which the Council processes in accordance with its procedure.)
[12] To ensure that the needs and wishes of the complainant are being fairly considered and the complaints properly investigated, specific provision is made in respect of the CRC. (See section 1.7 of the Council’s procedures, which is...
To continue reading
Request your trial
-
Petroineos Manufacturing Scotland Limited Against Clydeport Operations Limited And Others
...been followed in a number of subsequent cases including McGeoch v Scottish Legal Aid Board 2013 SLT 183 and McCue v Glasgow City Council 2014 SLT 891. The remedy available under section 31 is wide enough to deal with the present complaint, since the procedure allows a decision to be made th......
-
Reclaiming Motion By Terri Mccue For Judicial Review Against A Decision Of Glasgow City Council
...which was a high test to overcome: Rule of Court 58.3.1. Tarmac Econowaste Ltd v Assessor for Lothian Region 1991 SLT 77 at 78L; McCue [2014] CSOH 124, paras 6, 35 and 61; McKenzie v Scottish Ministers 2004 SLT 1236 para 18; BBC, Petitioners 2020 SLT 345 para 36. There were two remedies ava......
-
Petition Of Frank William Fletcher As Guardian In Property And Financial Matters Of Lisa Joanne Smart For Judicial Review Of The Failure Of Fife Council To Carry Out Their Statutory Duty Under Section 12a Of The Social Work (scotland) Act 1968
...for judicial review is incompetent. In support of that submission, counsel referred to the decision in McCue v Glasgow City Council 2014 SLT 891 (“McCue”). [14] The detail of counsels’ respective submissions is set out in the following section of this opinion. Decision and reasons Competenc......
-
McCue v Glasgow City Council
...174; 2011 GWD 35-725 King v East Ayrshire Council 1998 SC 182; 1998 SLT 1287; The Times, 3 November 1997 McCue v Glasgow City Council [2014] CSOH 124; 2014 SLT 891; 2015 SCLR 186 McKenzie v Scottish Ministers 2004 SLT 1236 O'Neill v Scottish Ministers [2020] CSOH 28; 2020 GWD 10-148 Penman,......