Judicial Review of Community Care Decisions- An Overview of the Caselaw

Posted On: 23 October 2007

Author: Scott Blair

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The grounds for judicial review are the same in Scotland as they are in England and Wales: West v. Secretary of State for Scotland, 1992 S.C. 385 per Lord President Hope at 413. They are illegality, irrationality and procedural impropriety. These were set out in CCSU v The Minister for the Civil Service [1985] AC 374 per Lord Diplock and Lord Roskill.

Judicial review can only be brought in the Court of Session under RCS 1994 r. 58. Judicial review is not an appeal on the merits of a decision. The Court is only concerned with whether the decision maker has followed the legal principles of legality, rationality and procedural propriety.

Human rights challenges under the Human Rights Act 1998 / Scotland Act 1998 based on breach of the section 6 HRA statutory duty or the devolution issue provisions of the Scotland Act are best analysed as a form of illegality challenge.

Note though that not all challenges brought under the HRA are to be brought by judicial review. Just because a case is a human rights case that does not make it a case which requires the use of judicial review.

If the challenge falls within West v Secretary of State for Scotland then it should be brought by judicial review. If there is no “West triangle” then the challenge should be brought by another means such as an ordinary action for breach of statutory duty.       

Subject to exceptional circumstances a person is expected to exhaust any alternative statutory remedy before seeking recourse to the supervisory jurisdiction: British Railways Board v Glasgow Corporation, 1976 S.C. 24. Faulty advice by an agent or adviser is not in general an exceptional circumstance: Sangha v Secretary of State for the Home Department, 1997 S.L.T. 545. An exceptional circumstance could be where the decision maker has done something to frustrate or impair the statutory appeal route: Moss’ Empires v Glasgow Assessor, 1917 S.C. (H.L.) 1. I shall look at this a little further later.

Issues of title and interest to sue may also arise. In most cases this will not be a problem. The recipient of care or someone challenging a lack of care will clearly have title and interest to sue. Sometimes though the case may involve a challenge where a specific petitioner cannot be identified or they cannot get legal aid or the individual affected by the decision does not want the strain of litigation. Can rights groups shoulder the burden? Probably not on the present state of the law.
The Scottish courts have enforced these rules (which derive from private law cases) with relative vigour: Scottish Old Peoples Welfare Council, Petitioners, 1987 S.L.T. 179. There a pressure group campaigning about cold weather payments for the elderly had title but no interest to challenge guidance which they claimed to be unlawful.
 In England a looser test of sufficient standing allows for more people to bring challenges than would be the case in Scotland. So for example in Rape Crisis Centre, Petitioner, 2002 S.LT. 527, a challenge to the decision of the Home Secretary to allow the convicted rapist Mike Tyson enter the UK to take part in a boxing match in Glasgow was rejected on title and interest grounds. In contrast in England a similar challenge was lost on the merits, the group challenging the decision their having sufficient standing on which see Lord Hope of Craighead “Mike Tyson comes to Glasgow - a question of standing” (2001) P.L. 294-307. The restrictive rules on title and interest make it hard in Scotland for pressure groups to make challenges on behalf of groups of vulnerable individuals. It is easier to do so in England where the test is different.

(Continued. For full article please download using link at the top of the page.)