Mother of man with Down’s Syndome has petition against service charges refused

Terri McCue, the guardian of Andrew McCue, originally sought judicial review of the decision on the basis that certain items of regular expenditure should have been classed as disability-related expenditure (DRE) and thus was deductible from Andrew’s regular income. 

The reclaiming motion was heard in the Inner House of the Court of Session by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Glennie and Lord Pentland. 

Refused classification 

The charging policy of the respondent included a number of principles used in the calculation of any service charge that might be paid by a user of their disability services, including factoring in DRE. The petitioner had previously challenged several decisions of the respondent regarding the amounts that Andrew was requested to pay. 

In 2015, the petitioner sought a decision from the respondent that certain items of regular expenditure, including costs relating to the alteration of clothing and footwear as well as bedding and ironing costs, should be classed as DRE. In May 2015 the respondent accepted that the alteration costs were DRE but considered that further items claimed were not DRE and only indirectly linked to the disability. 

The petitioner lodged a complaint about this decision, which was rejected in July 2017. Following a re-assessment in 2018 in which the same items of expenditure were again refused classification as DRE, the petitioner’s agents wrote to the respondent asserting that the charging policy was unlawful and discriminatory in terms of the Equality Act 2010. The respondents did not reply to this complaint, after which petition for judicial review was made. 

The Lord Ordinary who heard the petition at first instance dismissed it, holding that the petitioner had an alternate remedy for all her grounds of challenge in the form of making a complaint to the Scottish Public Services Ombudsman. The original rejection letter sent by the respondent in 2017 advised the petitioner that a complaint could be made to the SPSO, but no such complaint was made. 

On appeal, the reclaimer submitted that the Lord Ordinary had erred in holding that there was an alternative remedy available, and in failing to hold that the policy was discriminatory. The Scottish Public Services Ombudsman Act 2002 established that the SPSO was a separate and independent jurisdiction, and requiring the Ombudsman to be a necessary stage before a petition for judicial review could result in considerable delay in the resolution of disputes. 

It was further submitted that Section 7(8) of the 2002 Act stated that the Ombudsman may not investigate where the aggrieved person has or had a remedy by way of proceedings in any court of law, and that this included a remedy by way of judicial review. 

The respondent submitted that there were no exceptional or special circumstances presented as to why the reclaimer could not have used the SPSO. Simply because a complaint could be expressed in or as a ground of legal review did not mean the reclaimer could ignore a remedy by another route. Further, in the event that it was open to the courts for consideration, the charging policy was compliant with the 2010 Act. 

Open to the SPSO 

The opinion of the court was delivered by Lady Dorrian. On the interpretation of Section 7(8) of the 2002 Act, she said: “On its own terms it is clearly apt to cover judicial review. Where proceedings for judicial review have been presented, and there remains the possibility of a successful remedy thereby, the jurisdiction of the SPSO will be ousted, at least insofar as relates to any complaint which asks the SPSO to address the same matter as addressed in the judicial review.” 

She continued: “This does not mean that the court may never decide to dismiss a petition for judicial review on the basis that it is a matter more appropriate for the SPSO. Clearly it may do so, either at the permission stage when it is clear that the matter is not one amenable to the supervisory jurisdiction, or at a later stage when consideration of the merits of the petition reveals that this is so.” 

Thus, it was held that the Lord Ordinary had erred in upholding the respondent’s plea of no jurisdiction. However, the court went on to consider whether the reclaimer had a remedy available to her in the present petition. 

Of the other arguments advanced by the reclaimer, Lady Dorrian said: “The reclaimer sought to advance the argument that the charging policy was unlawful because it was not in accordance with the 2010 Act. Identifying the logical and legal basis for this was not easy; in fact it seemed that the contention was not that the policy was inconsistent with the Act, but simply that the petitioner disagreed with the council on the way in which the policy had been applied, which would not be a matter for the judicial review jurisdiction of the court (although clearly within the scope of the SPSO’s jurisdiction).” 

She continued: “We are unable to accept that argument. In essence the reclaimer is seeking to rely on the 2010 Act to justify payment of DRE independently of the statutory obligations of the respondent. In reality it amounts to saying that regardless of the nature of the obligation which the respondent is called upon to discharge, the respondent is in any event bound to give relief for all the sums claimed by the reclaimer as DRE.” 

On whether the SPSO was entitled to investigate the present complaint, she said: “The effect of the legislation, in our view, is that it is open to the SPSO to consider in a complaint the merits of any decision made in respect of the care provision for Andrew, or the management of it, notwithstanding that the decision involved a degree of professional judgment.” 

For these reasons, while the Lord Ordinary’s interlocutor as regards the respondent’s first plea-in-law was recalled, the fourth plea-in-law to the effect that the respondent had complied with any relevant statutory duty was upheld. The petition was therefore refused.