Petition by CM (attorney to AM) for Judicial Review (Court of Session)

Factual and Procedural Background

The petitioner, acting as financial and welfare attorney for his uncle ("AM"), challenged the decision of the local authority ("Western Isles Council") to refuse residential care for AM following assessments conducted in February and May 2024. AM, an 89-year-old man with multiple age-related health issues and recent diagnosis of suspected cancer, had been living alone after his brother moved to a nursing home and subsequently passed away. The local authority assessed AM's needs as "critical" initially, then downgraded to "substantial" upon review, maintaining a care package at home rather than providing residential care. The petitioner argued that these assessments were irrational and inadequately reasoned, seeking judicial review to compel the provision of residential care or, alternatively, a fresh assessment. The respondent contended that the decisions were lawful, rational, and adequately reasoned, and that an alternative remedy existed through the Scottish Public Services Ombudsman ("SPSO").

Legal Issues Presented

1. Is the respondent under a duty to provide reasons for its decisions reached in determining the needs of AM, and if so the basis and nature of that duty;
2. Whether the respondent’s decision in this case was irrational;
3. Whether, in the alternative, the decisions were inadequately reasoned;
4. Does the potential for review of the decision by the Scottish Public Services Ombudsman amount to an effective alternative remedy such that this Court should decline to provide a remedy.

Arguments of the Parties

Appellant's Arguments

• The local authority has a statutory duty under the Social Work (Scotland) Act 1968 to assess needs and decide what community care services are required, which includes a duty to provide reasons for decisions, arising from common law fairness and the statutory obligation to consider the views of the person assessed.
• The decisions made were irrational and inadequately reasoned, particularly because they failed to explain why AM’s expressed wish for residential care was not acceded to despite his critical needs and unsustainable informal care arrangements.
• The absence of adequate reasoning left AM and the petitioner in the dark as to why certain needs were unmet and why residential care was denied.
• The Scottish Public Services Ombudsman’s powers do not constitute an effective alternative remedy because the SPSO cannot reduce decisions or issue enforceable orders, and the petitioner is entitled to choose judicial review without being precluded by the SPSO’s jurisdiction.
• If the court does not find irrationality, it should at least declare the decisions inadequately reasoned and require a fresh, reasoned assessment.

Respondent's Arguments

• The local authority has a broad discretion under the 1968 Act to determine which services meet assessed needs, and no statutory duty to provide reasons exists; any duty to give reasons is limited and context-dependent.
• The decisions were rational and lawful; the care package provided met AM’s needs, and improvements in AM’s condition demonstrated the appropriateness of the approach.
• The views of AM were taken into account and recorded; the decision to provide home care rather than residential placement was a professional judgment within the authority’s discretion.
• The SPSO provides an effective alternative remedy with broad investigatory powers and mechanisms to address complaints, including the ability to make special reports to Parliament, which is more suitable than judicial review.
• The petitioner’s disagreement with the decision does not equate to illegality or irrationality, and the court should respect the statutory discretion of the local authority without substituting its own view.
• Even if irrationality were found, an order mandating residential placement would likely be inappropriate due to the historic nature of the decisions and the need for up-to-date assessment.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the absence of a statutory duty to provide reasons under section 12A of the Social Work (Scotland) Act 1968 but held that a common law duty to give reasons nevertheless arises, particularly where the views of the individual assessed are taken into account but not acceded to. The statutory language requiring the local authority to consider the wishes of the person being assessed implies that reasons must be given when those wishes are overridden, as a matter of fairness and openness.

The court found that the respondent’s decisions lacked adequate reasoning, particularly in failing to explain why AM’s expressed wish for residential care was not met despite the identified critical and substantial needs and the unsustainability of informal care arrangements. The documentation’s language suggested that the individual’s wishes were to be given effect where possible, and where not, reasons should be provided. The absence of such explanation rendered the decisions inadequately reasoned and unlawful.

Regarding irrationality, the court applied the high threshold set by Wednesbury unreasonableness and concluded that the respondent’s discretion in providing a care package at home rather than residential care was within the range of reasonable responses. The fact that some needs were unmet did not render the decision irrational.

On the issue of alternative remedies, the court distinguished this case from prior authority where internal complaints procedures precluded judicial review. It found that the SPSO’s powers, while broad, did not amount to an effective alternative remedy capable of providing enforceable decisions or orders. The statutory ouster clause prevents concurrent proceedings but does not oblige the petitioner to exhaust SPSO procedures before seeking judicial review. The petitioner’s choice to seek judicial review was therefore valid.

The court also noted that even if irrationality had been found, an order mandating residential placement would be of doubtful competency given the statutory framework and the historic nature of the decisions, favouring a fresh assessment instead.

Holding and Implications

The court REPELLED the petitioner’s first three pleas-in-law (irrationality and legality challenges) and SUSTAINED the fourth and fifth pleas-in-law concerning inadequacy of reasons. The respondent’s pleas were all repelled.

The court granted a declarator that the decisions under challenge were inadequately reasoned and pronounced an order requiring the respondent to undertake a fresh, reasoned assessment of AM’s needs in accordance with section 12A of the Social Work (Scotland) Act 1968.

No new precedent was established beyond affirming the developing common law duty to provide reasons in administrative decisions involving vulnerable individuals when their expressed wishes are overridden. The decision directly affects the parties by mandating a fresh assessment but does not extend to ordering residential placement or other substantive relief.