Introduction

The case RECLAIMING MOTION BY TERRI McCUE for JUDICIAL REVIEW AGAINST A DECISION OF GLASGOW CITY COUNCIL ([2020] CSIH 51) addresses critical issues surrounding the interplay between judicial review and Ombudsman remedies within Scottish administrative law. Terri McCUE, acting as guardian for her son Andrew McCUE, who has Down's Syndrome, challenged Glasgow City Council's decision regarding the calculation of disability-related expenditures (DRE) under social care charging policies. This case not only scrutinizes the council's methodology but also examines whether the available Ombudsman (Scottish Public Services Ombudsman - SPSO) alternatives impede direct judicial review.

Summary of the Judgment

The Scottish Court of Session upheld the claimant's challenge, determining that the existence of SPSO remedies does not categorically exclude the possibility of pursuing judicial review. The initial decision by the Lord Ordinary dismissed McCUE's petition based on the availability of an alternative remedy via the SPSO. However, upon appeal, the court clarified the legislative interpretation of "alternative remedy" within Section 7(8) of the Scottish Public Services Ombudsman Act 2002, affirming the court's supervisory jurisdiction remains intact. Additionally, the court scrutinized the definition and application of DRE, concluding that Glasgow City Council's charging policy did not unlawfully discriminate against Andrew McCUE.

Analysis

Precedents Cited

The judgment references several key cases that influenced its determination. Notably:

• McKenzie v The Scottish Ministers highlighted the importance of understanding alternative remedies in judicial contexts.
• O'Neill v The Scottish Ministers emphasized the distinctive roles of Ombudsman institutions in relation to court jurisdictions.
• R (on the application of Hardy) v Sandwell MBC [2015] EWHC 890 exemplified the principles of non-discrimination in policy applications.

Legal Reasoning

The core legal interpretation revolved around Section 7(8) of the Scottish Public Services Ombudsman Act 2002, which delineates the circumstances under which the Ombudsman may decline to investigate a matter if alternative remedies exist, such as judicial review. The Lord Ordinary's initial interpretation was deemed overly restrictive, positing that SPSO remedies exhaustively preclude judicial review. The appellate court clarified that "a remedy by way of proceedings in any court of law" encompasses judicial review, but does not inherently mandate its exclusive reliance. This ensures that parties retain the right to seek judicial oversight without being compelled to exhaust Ombudsman channels first, preserving the court's supervisory jurisdiction.

Furthermore, the judgment delved into the definition of DRE, rejecting the Lord Ordinary's narrow interpretation. The court emphasized that DRE should encompass all additional expenditures arising directly from the disability, aligning with the obligations under the Equality Act 2010. The council's charging policy was scrutinized for compliance with non-discrimination mandates, ultimately finding no unlawful discrimination.

Impact

This judgment reinforces the independent nature of judicial review within Scottish administrative law, ensuring that access to courts remains available even when Ombudsman remedies are in place. It delineates clearer boundaries between Ombudsman institutions and judicial bodies, preventing the former from inadvertently supplanting court jurisdiction. This decision sets a precedent for future cases where individuals may argue for direct judicial intervention despite existing administrative complaint mechanisms, thereby safeguarding the principle of judicial oversight.

Complex Concepts Simplified

Judicial Review

Judicial review is a legal process where courts examine the actions of public bodies to ensure they comply with the law. It does not involve re-evaluating the facts of a case but focuses on the legality, reasonableness, and procedural correctness of decisions.

Scottish Public Services Ombudsman (SPSO)

The SPSO is an independent body that investigates complaints about maladministration in public services. It provides an alternative route for individuals to seek redress without immediately resorting to judicial review.

Disability Related Expenditure (DRE)

DRE refers to additional costs incurred by individuals due to their disability. In the context of social care charging, DRE can be deducted from an individual's assessed contribution towards care services, provided these expenses directly relate to the disability.

Equality Act 2010

This Act consolidates and strengthens previous anti-discrimination laws, ensuring that individuals with disabilities are treated fairly and without discrimination in various aspects of public life, including access to services and support.

Conclusion

The RECLAIMING MOTION BY TERRI McCUE [2020] CSIH 51 judgment underscores the sustained importance of judicial review as a distinct and accessible remedy within Scottish administrative law. By clarifying that Ombudsman remedies do not inherently eliminate the possibility of court intervention, the ruling preserves the balance between administrative oversight and judicial scrutiny. Additionally, the case reinforces the necessity for local authorities to comply with non-discrimination principles, particularly regarding the provision and calculation of disability-related expenditures. This comprehensive analysis highlights the court's role in maintaining legal safeguards against administrative overreach, ensuring that individuals retain robust avenues for challenging unfair or unlawful public body decisions.