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
Synopsis
(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 reproduced at Appendix A) The CRC exists to examine facts presented by the complainant and Social Work Services (“SWS”) in relation to a complaint. It is to do so objectively and independently. (Section 1.7.1)
[13] The CRC consists of three independent persons. (Section 1.7.2) The chair of the CRC should have knowledge of both social work matters and the conduct of proceedings before a review body or tribunal, and each of the other two members should have knowledge of at least one of these areas. (Section 1.7.3)
[14] One of the CRC’s functions is to review a complaint where all avenues of redress have been explored by the local authority and the complainant remains dissatisfied with the response. (Section 1.7.4) It meets in formal session and receives both written and verbal submissions from the complainant, or their representative, and a representative of SWS. In considering evidence, the CRC may obtain independent professional opinion before reaching a determination. In making a determination, CRC should take into account Council and SWS policies, the priorities and resources in place and the professional judgment exercised by SWS staff in individual circumstances, and may express disagreement with any of these.
[15] Where a complaint is upheld, the determination of the CRC may include recommendations, including re-assessment of the complainant’s circumstances, and other steps necessary to offer the complainant redress. (1.7.13) The SWS convener’s sub-committee will consider the determination of the CRC, advise the outcome and make recommendations for action to the Director of Social Work Services. The CRC’s determination may only be rejected in exceptional circumstances (for example where acting in accordance with the determination would place SWS in breach of legislation). If the determination is rejected, the reasons are to be published. (1.7.16)
[16] I turn now to the competing submissions of parties on the issues to be resolved.
First issue – is judicial review excluded only where there is an alternative statutory remedy?
Submissions on behalf of the Council
[17] Miss Poole argued that the general rule is that, where an alternative remedy is available, whether statutory or not, judicial review is incompetent. In support of that argument, counsel relied on Falconer v South Ayrshire Council 2002 SLT 1033 (“Falconer”) at paragraph [19]; O'Neill v Scottish Joint Negotiating Committee for Teaching Staff (“O'Neill”); Clyde and Edwards, Judicial Review (2002), chapter 12.1 at page 409; McKenzie v The Scottish Ministers 2004 SLT 1236 (McKenzie); W v The Scottish Ministers 2010 SLT 65 (“W”); and William Morrison Supermarkets plc Petitioner [2010] CSOH 66.
[18] Mr Komorowski appeared for Mrs McCue. His primary contention was that an aggrieved person is entitled to invoke the supervisory jurisdiction of the Court of Session notwithstanding the existence of an alternative remedy unless (i) that remedy is created by statute and (ii) the terms of the statute creating the alternative remedy, “explicitly or by necessary implication”, exclude the supervisory jurisdiction. In this case, the enactments that provide for the Council’s complaints procedure and for review by the Scottish public services ombudsman do not explicitly or by necessary implication exclude resort to judicial review. Consequently, they do not amount to alternative remedies of a kind which, if not resorted to, would normally bar judicial review proceedings.
[19] In developing his line of argument, Mr Komorowski first cited British Railways Board v Glasgow Corporation 1976 SC 224 (“BRB”). In that case, the pursuers sought decree of declarator that certain premises which they owned were situated on their “operational land” and that, therefore, they were not liable to be rated for local or domestic water rates in respect of these premises. The defenders argued that the action was incompetent because the pursuers had a statutory mode of appeal of which they had not availed themselves. The action was dismissed as incompetent and the pursuers reclaimed. The reclaiming motion was refused. In order properly to understand Mr Komorowski’s argument, it is necessary to see how the Lord Justice-Clerk (Wheatley) and Lord Kissen expressed themselves in their respective opinions. The Lord Justice-Clerk said this:
"The defenders' plea to the competency of the action is based on what they maintain is the legal principle [elsewhere referred to in the opinion as “the general principle”] that it is not competent to have recourse to the Court of Session for a common law remedy when provision is made by statute for a statutory form of review and recourse to that form of review has not been made. (Page 237)
…
The basic issue is whether provision has been made by statute for a statutory form of review which, unless there are exceptional circumstances, ousts the jurisdiction of the Court of Session, and recourse has not been made to that statutory form of review. (Page 237)
…
It was said, however, that since the jurisdiction of the Court had not been ousted in specific terms by the statutory enactments it must still remain. I cannot so hold. By necessary implication the statutory introduction of this appeal procedure ousts the jurisdiction of the Court when regard is had to the general principle. (Page 237)
…
In all the circumstances, therefore, I am of the opinion that the present action is rendered incompetent by virtue of the general principle unless the pursuers can demonstrate that there were here present special circumstances which excluded the operation of the principle.” (Page 239)
[20] Mr Komorowski also relied on what was said by Lord Kissen, at page 241 of the report, in the following passages:
“The argument in support of the pursuers' submission was, very briefly, that the courts alone had jurisdiction in regard to liability for rates before the introduction of the statutory appeal in 1892, and that this jurisdiction had not been ousted, expressly or by implication, by the introduction of statutory appeals in 1892. Reference was made to a number of cases to support the proposition that the courts did have jurisdiction in questions of appeals against assessment of rates prior to 1892. I agree that they did have jurisdiction. The same position, it was submitted, applied after section 238 had come into operation. An appeal against the rating authority could, it was argued, be decided by the courts, despite the introduction of statutory appeals on rating, without first exhausting the statutory appeal procedure. It is clear that the court's jurisdiction had not been expressly ousted. The dispute was whether the court's jurisdiction had been ousted by implication, and in particular, whether it was competent for the pursuers to bring this action when, admittedly, they had not exhausted their remedies under section 238.
…
I think that the reclaiming motion should be refused. In short, the general principle stated in Dante, supra, and the later cases to which I have referred applies. The courts' jurisdiction cannot be invoked where, as here, the statutory appeal procedure has not been exhausted and the question sought to be raised in the court could have been decided by the statutory appeal.”
[21] If the test of competency was restricted to the question whether there is another remedy which is capable of giving the aggrieved party what he or she seeks, argued Mr Komorowski, it was a needless elaboration for the Lord Justice Clerk and Lord Kissen to consider whether the jurisdiction of the court was ousted by express provision or necessary implication. Since, in the circumstances of the present case, the legislature has not expressly or by necessary implication provided for the complaints procedure to be used as an alternative to judicial review, it remains open to Mrs McCue to invoke the supervisory jurisdiction of the court. He found further support for that proposition in the text of Clyde and Edwards, Judicial Review (2002), chapter 12.1 at page 409, and in the opinion of the Lord President (Clyde) in Lanarkshire County Council v East Kilbride Town Council 1967 SC 235 (LCC). At page 244, the Lord President said: “To exclude the jurisdiction of the Courts an express provision or clear implication must be found in the words of the statute.”
[22] Counsel then analysed the statutory provisions on which the Council relies as providing alternative remedies, and argued that none expressly ousts the jurisdiction of this court, nor does any do so by necessary implication. I refer to that submission later in this opinion as “the ouster point”.
[23] Under reference to Eba v Advocate General 2012 SC (UKSC) 1, at paragraph [27] of the judgment of the Supreme Court, delivered by Lord Hope DPSC, Mr Komorowski submitted that, if judicial review is available to Mrs McCue, she is entitled to apply to the Court of Session as of right, the court having no discretion to deny her access to it.
[24] Having explained his position in reliance on BRB, Mr Komorowski referred to one of the authorities produced by the Council, W, in which Lord Wheatley expressed the view that it is “well settled that the supervisory jurisdiction of the Court of Session can only be invoked after all other remedies, whether under statute or at common law, have been exhausted. In support of that proposition, Lord Wheatley referred to the opinion of Lord Hamilton in the Outer House in Falconer v South Ayrshire Council 2002 SLT 1033 (“Falconer”). Counsel observed, correctly, that Lord Wheatley made no reference to any Inner House authority and, in the absence of such authority, he argued, this court is bound by the decision in BRB. If, however, W was correctly decided, conceded counsel, it is against him, and the petition falls.
[25] In his Note of Argument Mr Komorowski had submitted that the members of the CRC are selected by the Council and that the committee itself can only make recommendations. Whilst accepting that the complaints procedure requires that, except in exceptional circumstances, those recommendations will be complied with, Mr Komorowski argued that the final arbiter as to what is considered exceptional will be the Council. As he put it: “an alternative remedy the fate of which ultimately lies in the hands of the body complained of is no remedy at all.” Mr Komorowski did not expressly adhere to that argument during oral submissions. In conceding that, if W was correctly decided the petition falls, I took him to have departed from the argument advanced in his Note. I will, however, deal with it later in this opinion.
[26] Mr Komorowski submitted that support for his argument that judicial review is excluded only where there is an alternative statutory remedy is to be found in the terms of Rule of Court 58.3(2), the successor to Rule of Court 260B(3), which provides that an application to the supervisory jurisdiction of the court may not be made under paragraph (1) of Rule 58.3 if such application is made, or could be made, by appeal or review under or by virtue of any enactment. Having regard to the omission of any reference to non-statutory remedies in either Rule of Court, argued Mr Komorowski, at the time when it enacted the respective Acts of Sederunt, the court must have considered that the existence of such remedy is not a bar to judicial review proceedings.
[27] At the conclusion of the hearing on 9 May, parties undertook to lodge further written submissions on the question whether any assistance in the determination of the first issue in this case could be derived from (i) an understanding of the nature and extent of the exercise of the nobile officium in the Court of Session or (ii) the opinion of Lord Clyde in Tarmac Econowaste Ltd v Assessor for Lothian Region 1991 SLT 77 (“Tarmac”). I shall say something about both of these matters later in this opinion.
Decision and reasons on the first issue
[28] The dispute in BRB arose because the Local Government (Scotland) Act 1966 (“the 1966 Act”) provided that certain nationalised industries including the pursuers were liable to rating in respect of offices that they occupied, which were not situated on their operational land. The defenders’ assessor had determined that the pursuers were liable to rating in respect of certain office premises occupied by them which, he said, were not situated on their operational land and which the pursuers said were so situated. The pursuers had a right of appeal to the rating authority in terms of the Local Government (Scotland) Act 1947 (“the 1947 Act”), on the ground that they were being improperly charged to rates. The 1966 Act provided that a nationalised industry occupying office premises might apply to the appropriate Minister for determination of the question whether the premises were situated on its operational land. The pursuers had not exhausted either of those remedies. Instead, they sought decree of declarator (i) that they were not liable to be rated for local or domestic water rates for the premises in question and (ii) that these premises were situated on their operational land.
[29] Although it is nowhere said in terms, it seems that what lay at the heart of the litigation was the proposition that, having regard to the terms of the statute, the assessor had no power to levy rates on the premises in question. If that is correct, the pursuers in BRB can be regarded as having sought to invoke the supervisory jurisdiction of the court.
[30] It is clear from the opinions that, prior to the enactment of the Burgh Police (Scotland) Act 1892 (“the 1892 Act”), the Court of Session had jurisdiction to resolve disputes between assessors and land-owners on matters of assessment for rating. The central question was whether that jurisdiction had been removed by the provisions of the 1892 Act, and their successor provisions in the 1947 Act. It was in that context that the court held that its jurisdiction to review the assessment had been ousted by the relevant statutory provisions.
[31] As is recorded in paragraphs [19] and [20] of this opinion, both the Lord Justice-Clerk and Lord Kissen declared that they were applying the principle laid down by the Lord Justice-Clerk (Scott Dickson) in Dante (“the Dante principle). Lord Leechman appears to have applied the same principle. (Page 244) It may be thought, therefore, that a convenient starting point for this analysis is an understanding of what that principle is. At page 121 of the report in Dante, the Lord Justice-Clark said this:
“…but in my opinion, a party complaining of what has been done under the statutory procedure, who has accepted and adopted what has been so done and has not availed himself of the statutory forms of review, is not entitled, after disregarding these opportunities of review or appeal, to have recourse to ordinary common law proceedings, and, in any event, is not entitled to do so without setting forth in his record a relevant case for so doing.”
That passage was reproduced in almost identical terms and adopted by the Lord Ordinary in BRB. (Page 228) To a similar effect, at page 128 of Dante, Lord Ormidale said this:
“Now, in a statutory matter such as valuation, when by the statutes a particular remedy is provided, it has been decided more than once that an aggrieved party must seek relief from the tribunal appointed by the Act to take cognizance of appeals or complaints. That such tribunals are competent and sufficient to deal with the matters submitted to them by way of appeal is the view of the Legislature, and it seems to me to be irrelevant to maintain that an appeal to the magistrates in the present instance would have been of no avail and a mere formality.”
[32] Although Lord Justice-Clerk Scott Dickson describes the party complaining of what has been done as having “accepted and adopted” it, these words do not appear to have been regarded as forming part of what Lord Justice Clerk Wheatley referred to as the “legal principle” or “general principle”. What the latter held it to be is recorded at paragraph [19] of this opinion. For convenience it is repeated here:
“… it is not competent to have recourse to the Court of Session for a common law remedy when provision is made by statute for a statutory form of review and recourse to that form of review has not been made.”
As his Lordship describes it in that passage, the foundation for the Lord Justice-Clerk’s opinion that the action was incompetent was simply that legislation had provided for a statutory form of review, and recourse to that form of review had not been made. It was on that basis that his Lordship was able to address the pursuers’ submission at page 234 that “(t)he jurisdiction of the Court of Session could only be excluded by express statutory provision or clear implication”, in this way:
“It was said, however, that since the jurisdiction of the Court had not been ousted in specific terms by the statutory enactments it must still remain. I cannot so hold. By necessary implication the statutory introduction of this appeal procedure ousts the jurisdiction of the Court when regard is had to the general principle.
In other words, the general principle is that it is not competent to have recourse to the Court of Session when provision is made by statute for a form of review which has not been resorted to. Consequently, the mere fact that Parliament had introduced the appeal procedure of itself operated to exclude the jurisdiction of the court. Contrary to what Mr Komorowski submitted was required, the Lord Justice-Clerk said nothing to the effect that the jurisdiction of the court had to be ousted by express provision in or by necessary implication of the terms of the statute.
[33] Neither Lord Kissen nor Lord Leechman expressed agreement with the Lord Justice-Clerk’s opinion, and neither of them expressed a view on the pursuers’ counsel’s argument that the jurisdiction of the court could only be excluded by express provision or necessary implication. Counsel for the pursuers had argued that the general principle only applied where a new and special jurisdiction had been created. Lord Kissen decided the competency question by holding that, by the provisions of the Burgh Police (Scotland) Act 1892: “The rating authority were … given a ’new and special jurisdiction’ in regard to appeals against rates”, and held that the action was incompetent on that basis. (Page 242) Lord Leechman held the action incompetent by applying the Dante principle”. (Page 244)
[34] As is noted in paragraph [20] of this opinion, Mr Komorowski relied on a passage in the opinion of Lord Kissen in which his Lordship said: “It is clear that the court’s jurisdiction had not been expressly ousted. The dispute was whether the court’s jurisdiction had been ousted by implication…” These words were not, however, an expression of Lord Kissen’s view, but part of his Lordship’s summary of the argument that had been presented on behalf of the pursuers.
[35] The general proposition to be drawn from BRB is that it is not competent to seek a common law remedy from the Court of Session where an alternative statutory remedy is available and has not been resorted to. (That general proposition is subject to exceptions to which I will return in due course.) On that analysis, it is not necessary that the language of the legislation creating the alternative remedy either expressly or by necessary implication excludes the jurisdiction of the court.
[36] Turning to Lanarkshire County Council, the words of the Lord President which are relied on by Mr Komorowski have to be read in their context. The dispute arose out of the terms of section 141 of the Local Government (Scotland) Act 1947, which provided for, among other things, the adjustment of liabilities between the local authorities concerned when an alteration of a local government area had been made. Subsection 3 enabled parties to refer disputes to the Secretary of State or to an arbiter appointed by the Secretary of State. The defenders wished such reference to be made, but the pursuers did not, and maintained that they could not be compelled to join with the pursuers in an application. In holding that the defenders’ submission was correct on the proper construction of section 141(3), the Lord President noted that it was an enabling provision only and did not, therefore, oust the jurisdiction of the court. Further, there is nothing in Lanarkshire County Council to suggest that it was an application to the supervisory jurisdiction as defined in West. For these reasons, the passage relied on by Mr Komorowski does not assist his argument in this case.
[37] It follows from what I have said so far that the decision in neither British Railways Board nor Lanarkshire County Council is authority for the proposition that, to bar judicial review in cases where an alternative statutory remedy is available, the terms of the legislation creating the alternative remedy must be such as to exclude the supervisory jurisdiction of the Court of Session, either expressly or by necessary implication. Mr Komorowski’s argument on the first issue is, therefore, rejected.
[38] Since judicial review is incompetent where there is a statutory alternative remedy, without the need for an express or implied legislative ouster of the jurisdiction of the court, I move on to deal with Miss Poole’s submission that the supervisory jurisdiction of the court is excluded also where a non-statutory alternative remedy is available to the aggrieved party.
[39] Neither party cited a reasoned decision following argument on the question whether judicial review is unavailable if there is an alternative non-statutory means of relief.
[40] At paragraph [24] of this opinion, I referred to the passage in W in which Lord Wheatley expressed the unequivocal opinion that the supervisory jurisdiction of the Court of Session can only be invoked after all other remedies, whether under statute or at common law, have been exhausted. The question is whether his Lordship’s view was well founded. As authority for the proposition, Lord Wheatley referred back to the opinion of Lord Hamilton in Falconer. In Falconer, Lord Hamilton, in turn, relied on a passage from the opinion of Lord Jauncey in O'Neill, in which the latter cited a passage from the speech of Viscount Dunedin in Adair v Colville & Sons 1926 SC (HL) 51 (Adair), which is where I shall start in reviewing the cases.
[41] In Adair, the pursuers had been unsuccessful following a jury trial in the Sheriff Court. Dissatisfied with the outcome, they had appealed to the Court of Session, but the action was dismissed as incompetent, because, by agreement of the parties, the evidence had not been recorded in shorthand, and the Sheriff Court rules provided that the interlocutor applying the verdict was not to be subject to review in the absence of shorthand notes. The pursuers then raised an action in the Court of Session to reduce the whole proceedings in the Sheriff Court, on the ground that there had been a miscarriage of justice. The Lord Ordinary sustained the defenders’ plea of irrelevancy, and dismissed the action. The pursuers reclaimed unsuccessfully. On appeal to the House of Lords, the judicial committee affirmed the decision of the Inner House.
[42] The words of Viscount Dunedin cited by Lord Jauncey are to be found in the following text, at page 56 of the report:
“… generally speaking, [an action of reduction] is certainly not competent when other means of review are prescribed, and these means have either been utilised or the parties have failed to take advantage of them. It is not for a judicial body to interfere with the wisdom of the Legislature in making the arrangements it has made, and one of these arrangements it has made in this present Act is by section 31, that the verdict is applied shall be the final judgment in the cause, so that it follows that, if the parties failed to have the evidence transcribed by a shorthand writer, they accept the Sheriff’s judgment is final in applying the verdict. It follows… that it is not possible to set right by the form of reduction what could have been set right by appeal.”
The rationale underlying Viscount Dunedin’s view that an action of reduction is incompetent when other means of review are prescribed is that to entertain an action of reduction would be an interference with what Parliament had intended. The “present Act” that Viscount Dunedin was referring to was the Sheriff Courts (Scotland) Act of 1907. It is clear that the only alternative remedy that Viscount Dunedin had in contemplation was one created by legislation.
[43] O'Neill concerned the application of the Administration of Justice (Scotland) Act 1972 (“the 1972 Act”). In a petition for judicial review, the petitioner sought reduction of decisions of the Scottish Joint Negotiating Committee for Teaching Staff and its disputes sub-committee. The petition was dismissed as incompetent, because the petitioner had failed to ask for a case to be stated for the opinion of the Court of Session as provided for by section 3 of the 1972 Act. Under reference to Adair, Lord Jauncey said: “[Judicial review] is certainly not available where other means of review are provided and those means have either not been made use of or have been used without success.” Viscount Dunedin’s view that an action of reduction is not competent “where other means of review are prescribed”, becomes judicial review is not available “where other means of review are provided”. Given the context in which his Lordship spoke, Lord Jauncey cannot be taken to have meant more than that judicial review is incompetent where there is an alternative statutory remedy.
[44] In Falconer, the petitioners sought judicial review of a decision of a licensing subcommittee of a local authority. The respondents argued that the petitioners’ complaints could have been the subject of an appeal to the Sheriff under the provisions of the Civic Government (Scotland) Act 1982 and that: “(h)aving failed to invoke the right to a statutory appeal the petitioners could not now secure remedy by judicial review.” In support of that submission, they cited O’Neill and Ingle v Ingle's Trustee 1999 SLT 650 (“Ingle”). Lord Hamilton dismissed the petition as incompetent, quoting the words of Lord Jauncey in O’Neill which are set out the preceding paragraph. In common with O’Neill and Falconer, in Ingle the alternative remedy that was being considered was a statutory appeal. The reason for refusing a reclaiming motion against the dismissal of a petition for judicial review in that case was summarised by Lord Caplan, delivering the opinion of the court, in these words: “… in general the court will not exercise its supervisory common law power where the remedy sought could be achieved by following through the normal statutory appeal structure."
[45] On that analysis, none of these decisions is authority for the proposition that judicial review is incompetent where there is an alternative non-statutory remedy that has not been resorted to.
[46] As I have noted, Miss Poole relied, also, on the case of McKenzie in support of her argument that the availability of an alternative remedy, whether statutory or non-statutory, bars recourse to the supervisory jurisdiction. In that case, Lord Carloway expressed this view: “… the principles of common law … require a petitioner to have exhausted any alternative ordinary or statutory remedies before invoking the supervisory jurisdiction.” That proposition, however, appears not to have been the subject of argument, and no authority was cited in support of it. That may be because, until Mr Komorowski’s challenge in this case, the proposition was thought to be axiomatic, judicial review being widely regarded as a “remedy of last resort”, without qualification.
[47] Finally, in Clyde and Edwards in the passage relied on by Mr Komorowski at page 409, the authors say this:
“As a general proposition it may be said that judicial review is not available if there is an alternative means of relief open to the applicant. One example of such a case is where there is a contractual remedy open to the complainer. But the matter of alternative remedies has usually arisen in relation to the provision of statutory remedies and it is with that problem that this chapter is particularly concerned.”
The footnote to the second sentence refers to paragraph 8.36 of the work, but I was not addressed on that section and it is not clear what can be taken from it.
[48] As I have noted, the parties lodged further submissions concerning the nobile officium, on the view that an understanding of the origins of the supervisory jurisdiction might point toward the resolution of the issue which I am now considering. In his supplementary written submissions, Mr Komorowski argues that, although they may have had a common origin, the supervisory jurisdiction of the Court of Session and the exercise of its nobile officium have developed separately and that it may be unwise to attempt to apply to the supervisory jurisdiction rules that have been devised in the context of the nobile officium as it is exercised today. In her further submissions, Miss Poole adopts a similar approach. I agree that I should not read across the rules that have been developed in one jurisdiction to the other, and I shall not do so. I am of the view, however, as submitted by Miss Poole, that an understanding of the association between the emergence of the ancient nobile officium and the exercise of the supervisory jurisdiction is relevant to the determination of this issue.
[49] In West, the First Division dated the development of the supervisory jurisdiction of the Court of Session from, and attributed it to, the abolition of the Scottish Privy Council in 1708. In Eba v Advocate General 2011 SC 70, at paragraph [34] of the opinion of the court, delivered by the Lord President (Hamilton), the First Division described that suggestion as “doubtful”. It expressed the view that the court exercised a supervisory jurisdiction from its inception, and cited a number of cases in the 17th century as examples. It concluded that Lord Dunpark had been correct when he said that the power of the Court of Session to quash decisions of inferior courts stems from the foundation of the College of Justice in 1532 to take over the judicial duties of the King’s Council. (Brown v Hamilton District Court 1983 SC (HL) 1 at page 28) Further, the First Division expressed the view that “the supervisory jurisdiction was and is regarded as an exercise of the nobile officium, that is, of the court’s broad equitable jurisdiction …”
[50] Notwithstanding the difference between the two courts in West and Eba as to the timing and circumstances of the emergence of the supervisory jurisdiction, it is a matter of agreement between them that it springs from the court’s equitable jurisdiction. The following passage from Kames: Principles of Equity (3rd edn, 1776), quoted by the court in West is, therefore, germane:
“In Scotland, as well as in other civilized countries, the King's council was originally the only court that had power to remedy defects or redress injustice in common law. To this extraordinary power the court of session naturally succeeded, as being the supreme court in civil matters; for in every well-regulated society, some one court must be trusted with this power, and no court more properly than that which is supreme.”
[51] In holding that the principle upon which the supervisory jurisdiction is exercised is not affected by distinctions between public bodies and those who exercise a jurisdiction under a private contract, the First Division in West expressed the opinion that the essential feature is the conferring, whether by statute or private contract, of a decision making power or duty on a third party. If the purpose of the exercise of the supervisory jurisdiction is to avoid injustice, it follows that, within the limits identified in West, the court will act in cases where, if it did not, injustice would prevail. It is for that reason that judicial review is described as a remedy of last resort. On the authority of West, it is immaterial whether the injustice has been perpetrated by a decision maker which is the creature of statute or one created by private contract. If such injustice is capable of being remedied by means available to the aggrieved party other than by application to the court, there is no reason in principle or logic why the aggrieved party should not be required to resort to it, simply because the remedy does not lie in statute.
[52] The terms of Rule of Court 58.3(2) do not assist Mrs McCue on this branch of the argument. (See paragraph [26] above) To understand why, it is necessary to look first at the terms of Rule of Court 260B, which was introduced by the provisions of the Act of Sederunt (Rules of Court Amendment No. 2) (Judicial Review) 1985. So far as is relevant, it provides as follows:
“(1) Application. An application to the supervisory jurisdiction of the court which immediately before the coming into operation of this rule would have been made by way of summons or petition, shall be made by way of an application for judicial review in accordance with the provisions of this rule.
…
(3) Paragraph (1) does not apply to an application to the court made, or which could be made, by way of appeal or review under and by virtue of any enactment, including an application under –
(a) paragraph 15 of Schedule 1 to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (validity of compulsory purchase order);
(b) sections 232 (validity of structure plans) and 233 (validity of other orders, decisions and directions) of the Town and Country Planning (Scotland) Act 1972;
(c) paragraph 2 of schedule 2 to the Roads (Scotland) Act 1984 (validity of orders).”
[53] The First Division in West noted a number of characteristics of Rule of Court 260B. First, since it was introduced by Act of Sederunt without any further enabling power having been conferred on the court by general legislation, it was a procedural amendment only which did not and could not alter in any respect the substantive law. Thus, said the First Division, neither the nature nor scope of the supervisory jurisdiction, nor the grounds on which it may be exercised, were affected by the introduction of the new rule. Second, it requires that all applications to the supervisory jurisdiction must be made only by means of the new procedure. The former procedure by way of summons or petition was no longer to be available in such cases. The court concluded that this makes it all the more important to observe that no change in the substantive law was being effected. (Page 404)
[54] Rule of Court 260B(1) did no more, therefore, than to provide for the form in which an application to the supervisory jurisdiction was to be made. Rule 260B(3) made provision in respect of such applications by disapplying 260B(1) in cases where there is statutory provision for a different form of application to the supervisory jurisdiction. For example, paragraph 15 of schedule 1 to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 makes provision for application to the Court of Session by any person aggrieved by a compulsory order who wishes to challenge it on the ground that it was ultra vires of the maker or that it was made in the absence of compliance with a statutory requirement. Similar provision was made by sections 232 and 233 of the Town and Country Planning (Scotland) Act 1972 in respect of structure plans and other orders, decisions and directions and by paragraph 2 of schedule 2 to the Roads (Scotland) Act 1984 in respect of the validity of certain orders. The Rules of Court in place when the 1985 Act of Sederunt came into force provided for written appeal to the Inner House where the validity of these various decisions was being challenged on the grounds of ultra vires etc. (Rule of Court 290) To the extent that such an appeal invoked the supervisory jurisdiction of the court, Rule of Court 260B(3) saved the existing procedure.
[55] When Rule 260B was superseded by chapter 58, no particular statute was specified, but the scheme remained the same. Rule 58.3(1) provides that, subject to paragraph (2) an application to the supervisory jurisdiction of the court is to be made by petition for judicial review. Paragraph (2) provides that an application may not be made under paragraph (1) if that application is made, or could be made, by appeal or review under or by virtue of any enactment. The terms of Rule 58.3 are not identical to those of 260B(1) and (3), but there is no reason to believe that they manifest a different intention.
[56] In Simpson v Inland Revenue Commissioners 1992 SLT 1069, taxpayers who had appealed unsuccessfully to the special Commissioners against the disallowance of certain expenses in the calculations of their taxable income appealed to the Inner House by way of stated case. Being dissatisfied with the stated case procedure, they petitioned for judicial review, seeking the quashing of the decision, or a rehearing. The respondents argued that the petition was incompetent on the ground, amongst others, that it was barred by the terms of Rule of Court 260B(3). Of that argument, the Lord Ordinary said this:
“I would only comment that I am not inclined to regard Rule of Court 260B(3), which was relied on in the submissions on behalf of the respondents, as posing a separate obstacle to an applicant, additional to that posed by the common law rule that the supervisory jurisdiction is only available once other remedies are exhausted. In my view, rule 260B(3) may well only require that existing statutory remedies should be pursued under their own procedure rather than by the procedure prescribed for judicial review.”
[57] This point was not argued in the hearing before me, and I invited parties to provide further submissions on it. Notwithstanding the argument which he had originally presented and which I have recorded in paragraph [26] of this opinion, the conclusion of Mr Komorowski’s contentions on Rule 260B is in the following terms:
“Rule 260B was concerned with dictating the form of applications to the supervisory jurisdiction, rather than attempting to modify or codify the substantive law. Lord Coulsfield’s inclination (stated in Simpson v Inland Revenue Commissioners 1992 SLT 1069 at p 1070J/K), that Rule 260B(3) did not pose a separate and additional obstacle to the common law rule, was sound”
Counsel goes on to submit that Rules 58.3(1) and (2) ought to be construed to the same effect as the old Rule 260B, because the ordinary language of the rules supports that conclusion and because there is no intention apparent to deviate from the effect of Rule 260B. Miss Poole’s further submissions are to a similar effect.
[58] Mr Komorowski set out the history of Rule 260B. He noted that, in its Report to the Lord President, which was submitted in June 1984, the Working Party on Procedure for Judicial Review of Administrative Action, chaired by Lord Dunpark, referred to statutory applications to the supervisory jurisdiction. In its introduction, at paragraph 10, the working party observed that the remedies provided by the 1947 Act Schedule 1, paragraph 15, the 1972 Act sections 232 and 233 and the Special Roads Act 1949 (replaced by the Roads (Scotland) Act 1984), were precisely the remedies (expressed in the same or other words) that the court would be entitled to grant in exercise of its supervisory jurisdiction. They expressed the view that, in the absence of express statutory exclusion, the court would be entitled to exercise its supervisory jurisdiction in relation to the acts and decisions to which those provisions relate. The true effect of those provisions was, it said, to limit the inherent jurisdiction of the court, in relation to the grounds for exercise of the jurisdiction and the time within which application must be made, rather than to create a new jurisdiction. (Paragraph 10) The working party recommended that both common law applications to the supervisory jurisdiction, and what it regarded as statutory applications to the supervisory jurisdiction, employ the same procedure and all be presented to the Outer House. (Paragraph 13) Mr Komorowski noted that the recommendation was evidently not adopted, as can be seen from the terms of Rule 260B. But, he said, it shows that, in framing Rule 260B, the draftsman appreciated that, were it not for paragraph (3) of that rule, paragraph (1) would catch the statutory applications under the 1947 Act, the 1972 Act and the 1984 Act. The draftsman and, ultimately, the court, appeared to share the view of the working party that these applications were statutory invocations of the supervisory jurisdiction.
[59] In my opinion, the fallacy that lies behind the argument which Mr Komorowski originally presented on the relevance of Rule of Court 58.3(2) is that it does not provide, as he put the argument, that “an application to the supervisory jurisdiction of the court may not be made if such application is made, or could be made, by appeal or review under or by virtue of any enactment”. What it provides is that such application “may not be made under paragraph (1)”, i.e. in the form provided for, namely in a petition for judicial review. Since, as I hold to be the case, Rule of Court 58.3(2) is not intended to be a statement of the alternative remedy rule, nothing can be inferred from the absence of any reference to non-statutory remedies.
[60] For the reasons which I have given so far, I hold that it is not competent to seek judicial review when an alternative remedy, whether statutory or non-statutory, is available to the applicant and has not been resorted to or exhausted. In this case, the Council’s complaints procedure is available to Mrs McCue and is capable of curing the alleged injustice of which she complains. She has not resorted to it. In these circumstances, this application for judicial review of the decisions complained of is not competent.
[61] I said in paragraph [35] of this opinion that I would return to the matter of the exceptions to the general rule that is to be drawn from BRB. As is noted at paragraph [19] of this opinion, at page 239 of the report in that case, the Lord Justice-Clerk expressed the view that the present action was rendered incompetent by virtue of the general principle unless the pursuers could demonstrate that there were special circumstances which excluded the operation of the principle. His Lordship gave as examples of such special circumstances ultra-vires or fraud or agreement between the parties that there should not be recourse to the statutory form of appeal.
[62] In Tarmac, Lord Clyde was referred to a succession of cases where the principle “to the effect that the court will not grant redress in the exercise of its supervisory power where all statutory remedies have not been exhausted” has been considered or applied. (Page 78L) In discussing these cases, the Lord Ordinary notes the type of “exceptional” or “special“ circumstances that may operate to provide an exception to the operation of the general rule. Lord Clyde expressly disavows any attempt to provide a complete classification of the kinds of cases which should fall outside the general principle, (page 79I) but reference to his Lordship’s analysis gives a helpful flavour of the type of circumstances which might be thought exceptional. The Lord Ordinary was, of course, considering only alternative statutory remedies, because that was the context in which the review was being conducted. There is no reason why the same sort of considerations should not apply in cases where there exists a non-statutory remedy which has not been resorted to or exhausted.
Second issue – is the Council’s complaints procedure a statutory remedy
[63] If I am correct in holding that the existence of a non-statutory alternative remedy excludes the supervisory jurisdiction, this issue is superseded. In deference to the arguments advanced by counsel, however, I shall address it.
Submissions on behalf of the Council
[64] Miss Poole argued that the complaints procedure is available to Mrs McCue and constitutes a statutory remedy. It was devised by the Council in compliance with the terms of the Order which provides:
“Every local authority shall establish a procedure whereby a person… may make representations (including complaints) in relation to the authority's discharge of, or failure to discharge, any of their functions under the [1968] Act … in respect of that person.”
[65] Counsel submitted that, having regard to the statutory scheme which gave rise to the complaints procedure, it should be regarded as providing alternative statutory remedies. The legislation gave the Secretary of State power to require local authorities to introduce a complaints procedure and to make directions as to its content. These powers were exercised.
[66] By way of aside, Miss Poole said that the complaints procedure may have some advantages over judicial review. Those determining her complaints will have specialist expertise in the delivery of public services. That expertise is particularly apposite in this case where the essence of Mrs McCue’s complaints is that the services currently proposed for her son are inadequate and that certain criteria applied by the Council are not soundly based. Further, Miss Poole contended, those determining a complaint can look at the merits of the Council’s decisions whereas the court in judicial review may not. Finally, the statutory procedures represent a proportionate use of public funds, whereas court procedures are expensive. Determination of Mrs McCue’s complaint by judicial review will result in the diversion of public funds from frontline services.
Submissions of behalf of Mrs McCue
[67] Mr Komorowski submitted that the complaints procedure is not a statutory remedy. Section 5B of the 1968 act gave the Secretary of State discretion both as to whether or not to require that a complaints procedure be adopted and as to what directions he or she might issue regarding such procedure. The procedure for determining complaints is an enabling provision, not a compulsory one (Lanarkshire County Council v East Kilbride Town Council 1967 SC 235).
Decision and reasons on the second issue
[68] In my opinion, the complaints procedure is a statutory remedy. The language of the Order which is quoted at paragraph [64] evinces a clear legislative intention that some redress should be available to an aggrieved person. In requiring local authorities to comply with any directions given by the Secretary of State as to the procedure to be adopted in considering such representations and as to the taking of such action as may be necessary in consequence of such representations, the language of section 5B(6) of the Act makes it clear that it was intended that there should be available an effective remedy. I agree with Miss Poole that the complaints procedure was intended to be the primary route to be used to the resolution of disputes such as that at the centre of this litigation.
The third issue – is a remedy available to Mrs McCue under the provisions of the 2002 Act?
Submissions for the Council
[69] Miss Poole contended that the second mechanism by which Mrs McCue could obtain the remedy which she seeks is provided for by the terms of the 2002 Act. Mrs McCue’s complaint is, as Miss Poole put it, “eminently suited to the ombudsman’s jurisdiction” and, in support of that contention, she referred me to paragraphs (a) and (c) of section 5(1) of the 2002 Act. The first of these provides that the ombudsman is entitled to investigate any action taken by or on behalf of the Council in the exercise of its administrative functions, and the second that he or she is entitled to investigate any service failure on the part of the Council.
Submissions for Mrs McCue
[70] Mr Komorowski’s argument on this issue was closely related to his argument on the BRB ouster point. The terms of the 2002 Act, he argued, are inconsistent with an intention to exclude judicial review. He referred, in particular, to section 7(8)(c) of the 2002 Act, which provides that the ombudsman may not investigate any matter in respect of which the aggrieved person has or had, among other things, a remedy by way of proceedings in any court of law.
Decision and reasons on the third issue
[71] As a local authority, the Council is a person liable to investigation under the 2002 Act. (Section 3) Section 7(10) of the 2002 Act provides that the ombudsman must not investigate matters in respect of which a complaint can be made to a local authority, unless the ombudsman is satisfied that the other procedure has been invoked and exhausted or that, in the particular circumstances, it is not reasonable to expect the procedure to be invoked or exhausted. Since it is the Council’s position that Mrs McCue should invoke the council’s complaints procedure, resort to the ombudsman is not, at this stage, an alternative remedy barring resort to judicial review.
Decision and reasons on the fourth issue: should the petition be dismissed on the ground that it raises no live issue?
[72] It follows from my decision on competency, on the ground that there is an alternative remedy, that the question whether the petition is academic is moot. Had it been necessary to determine that question, in light of the terms of the adjusted petition, I would have done so in Mrs McCue’s favour. As I have said, in its Note of Argument the Council submitted that the decisions originally challenged by the petitioner had been superseded by later decisions and that they were not determinative of the outcome. Those acting for Mrs McCue responded to that argument by adjusting the petition. In the hearing on 9 May, Miss Poole made no reference to these adjustments and said that she was content to rest on the terms of the Note of Argument. In her adjusted petition, Mrs McCue now seeks reduction of the decision, dated 18 March 2014, of the Council’s Social Work Services’ Resource Allocation Steering Group (“RASG”). The Council describes that as the RASG’s “final decision”. It has not been superseded. Although the Council avers that the decision of 18 March “will be subject to ongoing review to ensure that the provision made continues to fulfil the respondent’s statutory duties”, that decision is now operative and determines the provision to be made for Mr McCue until such time that a review is carried out. It follows, therefore, that there is a live issue to be determined in respect of it.
Summary
[73] In the petition as adjusted, Mrs McCue raises a live issue. The petition is, therefore, not academic and I shall repel the first plea-in-law for the Council. An alternative remedy is available to Mrs McCue, by way of the council’s complaints procedure. Consequently, I shall sustain the Council’s second plea-in-law and dismiss the petition as incompetent. I shall reserve all questions of expenses.