McCue v Glasgow City Council
| Jurisdiction | Scotland |
| Judge | Lady Wolffe |
| Judgment Date | 21 August 2020 |
| Neutral Citation | [2020] CSIH 51 |
| Docket Number | No 7 |
| Court | Court of Session (Inner House) |
| Date | 21 August 2020 |
[2020] CSIH 51
Second Division
Lady Wolffe
Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406; [2004] QB 1124; [2004] 2 WLR 603; [2004] 1 All ER 833; [2004] 1 FLR 8; [2003] 3 FCR 673; [2004] HRLR 1; [2004] UKHRR 1; 15 BHRC 526; [2004] HLR 22; [2004] BLGR 184; (2003) 6 CCL Rep 415; [2004] Fam Law 12; (2003) 100 (44) LSG 30; The Independent, 23 October 2003; The Times, 17 October 2003
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R (on the application of Umo) v Commissioner for Local Administration in England [2003] EWHC 3202; [2004] ELR 265
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European Commission for Democracy through Law (‘Venice Commission’), Principles on the Protection and Promotion of the Ombudsman Institution (‘Venice Principles’) (CDL-AD(2019)005) (Council of Europe, Strasbourg, 18 March 2019) (Online: www.venice.coe.int/webforms/documents/default.aspx?pdf=CDL-AD(2019)005-e&lang=EN (1 September 2020))
Administrative law — Judicial review — Jurisdiction — Challenge to lawfulness of local authority charging policy in respect of community care services — Whether policy unlawfully discriminated against disabled persons — Whether alternative remedy available by way of complaint to Scottish Public Services Ombudsman — Scottish Public Services Ombudsman Act 2002 (asp 11), sec 7(8)(c)
Terri McCue, as guardian of Andrew McCue, presented a petition under the judicial review procedure in the Court of Session which sought to review the local authority's calculation of charges for social care. On 20 December 2019, the Lord Ordinary (Wolffe) dismissed the petition ([2019] CSOH 109). The petitioner reclaimed.
The Scottish Public Services Ombudsman was given permission to intervene and to lodge a written submission in the reclaiming motion.
The Social Work (Scotland) Act 1968 (cap 49), sec 87(1), provides that a local authority may recover charges as it considers reasonable for community care services.
The Scottish Public Services Ombudsman Act 2002 (asp 11), sec 7(8), provides, “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 … remedy.”
The petitioner was the guardian of her son who was disabled within the meaning of sec 6 of the Equality Act 2010 (cap 15) and entitled to community care services from the local authority in terms of sec 12A of the 1968 Act and sec 5 of the Social Care (Self-directed Support) (Scotland) Act 2013 (asp 1). The petitioner applied to the local authority to have certain items of her son's regular expenditure classed as disability related expenditure (‘DRE’) and, thus, subject to deduction from the assessed contribution in terms of sec 87(1) of the 1968 Act. The local authority accepted that certain costs could be properly characterised as DRE but rejected the request in relation to other expenditure. The petitioner brought a petition for judicial review.
The petitioner argued that the local authority's charging policy was unlawful as it discriminated against disabled persons contrary to secs 15, 20 and 21 of the 2010 Act and proceeded on the basis of an unduly restrictive definition of DRE, which was concerned with extra living costs by reason of disability generally.
The local authority argued that an application to the supervisory jurisdiction was excluded due to the availability of an internal complaint mechanism, and review by the Ombudsman, under secs 5B and 7, respectively, of the 1968 Act.
The Ombudsman, intervening, argued that sec 7(8) of the 2002 Act created a statutory presumption that the Ombudsman would not investigate a complaint which might be resolved in other fora unless satisfied that it would not be reasonable to expect the complainer to resort to that remedy, and it was a matter for the Ombudsman's discretion whether to accept such a complaint for investigation in the particular circumstances. It was not conceivably the intention of Parliament to make recourse to the Ombudsman a necessary prerequisite to judicial review.
Held that: (1) a remedy by way of proceedings in any court of law was clearly apt to cover judicial review, which thereby ousted the jurisdiction of the Ombudsman, at least in so far as it related to any complaint that addressed the same matter as any judicial review, but where a complainer had elected not to pursue judicial review proceedings, the Ombudsman would have a discretion to determine whether to accept the complaint, and the Lord Ordinary had erred in upholding a plea of no jurisdiction (paras 44, 46); (2) the lawfulness of the local authority's charging policy was not amenable to judicial review on the alleged grounds of discrimination against disabled persons as this amounted to a claim for relief in respect of all sums claimed as disability related expenditure independently and regardless of the statutory obligations which the local authority was called upon to discharge (para 49); (3) the charging policy enabled the local authority to discharge the obligations imposed by the 2010 Act by seeking to ensure that a disabled person was not disadvantaged by the policy, and that reasonable adjustments were made, and by recognising that there may be some essential disability related expenditure associated with that person's needs which may have been overlooked (para 51); (4) the matter was amenable to the jurisdiction of the Ombudsman, as a decision taken in pursuance of a social work function, and it was open to the Ombudsman to consider a complaint in respect of the merits of any decision made in respect of community care provision, or the management thereof, notwithstanding that the decision involved a degree of professional judgment, and the local authority had complied with the relevant statutory duty (paras 54–57); and reclaiming motion refused.
The cause called before the Second Division, comprising the Lord Justice Clerk (Dorrian), Lord Glennie and Lord Pentland, for a hearing on the summar roll, on 23 July 2020.
At advising, on 21 August 2020, the opinion of the Court was delivered by the Lord Justice Clerk (Dorrian)—
Opinion of the Court—
[1] The reclaimer is the mother, carer and guardian of Andrew McCue. Andrew is 25 years of age, has Down's Syndrome and lives with his parents. He is disabled within the meaning of sec 6 of the Equality Act 2010 (cap 15) (‘the 2010 Act’). Accordingly he is entitled in law to community care services from the respondent in terms of sec 12A of the Social Work (Scotland) Act 1968 (cap 49) (‘the 1968 Act’) and sec 5 of the Social Care (Self-directed Support) (Scotland) Act 2013 (asp 1). The respondent has in place a ‘support plan’ which provides Andrew with non-personal care between 9.00 am and 3.00 pm during weekdays at certain locations. The reclaimer does not challenge the support plan, which it is accepted adequately meets Andrew's needs as a disabled person which the respondent is under a duty to meet. Given the nature of the issues in the case, the Scottish Public Services Ombudsman (‘SPSO’) was given permission to intervene and to lodge a written submission.
[2] Sections 87(1) and (1A) of the 1968 Act provide local authorities with a power to levy a charge for services they provide, so long as the charge is reasonable and the service user has the means to pay. The respondent does so in terms of a charging policy, under which an individual will only require to make any payment where his income is in excess of the ‘minimum income threshold’, a sum set by reference to the Convention of Scottish Local Authorities (‘COSLA’) guidance and linked to rates set by the UK Government Department for Work and Pensions. Income relating to the applicant's disability, such as Disability Living Allowance (‘DLA’), is left out of account. Andrew's income is above the threshold, hence he is asked to pay a contribution to the costs of services provided. These rates are used to assess the initial contribution level. The respondent may then apply certain deductions to reduce the contribution, such as deductions for disability related expenditure (‘DRE’). The respondent's decision to allow only certain deductions is, together with the validity of the charging policy, at the heart of this case.
[3] Paragraph 12.2 of the charging policy sets out certain principles which will be applied in the calculation of the relevant charges. These include that:
‘Consideration will be given to representations to take into account other specific costs of...
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