Permission for homelessness petition for judicial review to proceed against Glasgow City Integration Joint Board (Glasgow City Health and Social Care Partnership)

Lady Paton has granted permission today for a petition to proceed for judicial review of a homelessness decision against the Glasgow City Integration Joint Board (GCIJB; also known as the 'Glasgow City Health and Social Care Partnership'). A procedural hearing has been assigned for 22 August, and a substantive hearing for 3 October 2018 at 10am in Zungunde v. Glasgow City Integration Joint Board.

The intentional homelessness decision was made by Glasgow City Council on behalf of the GCIJB. It is believed that this may be the first petition for judicial review in Scotland against an Integrated Joint Board with respect to its delegated statutory responsibilities and duties.

The GCIJB is a body corporate established by Order under section 9 of the Public Bodies (Joint Working) (Scotland) Act 2014 (the 2014 Act).  On 6 February 2016, the GCIJB assumed delegated duties and decision-making power under Part II of the Housing (Scotland) Act 1987 (the 1987 Act) in terms of section 1(5) of the 2014 Act, its Integration Scheme approved under section 7 of the 2014 Act, and The Public Bodies (Joint Working) (Integration Joint Board Establishment) (Scotland) Amendment Order 2016 (SSI 2016/2).

Although the GCIJB subsequently issued a Direction under section 26 of the 2014 Act for Glasgow City Council to carry out its functions under the Part II of the 1987 Act, the petitioner's position is that in terms of inter alia section 25(3) of the 2014 Act, the duties and powers under Part II of the 1987 Act rest with the GCIJB, and that Glasgow City Council act on the GCIJB's behalf.

The GCIJB is represented by the NHS Scotland Central Legal Office, the petitioner is represented by GLC's Mike Dailly, Solicitor Advocate.

Permission for homelessness petition for judicial review to proceed against Glasgow City Integration Joint Board (Glasgow City Health and Social Care Partnership)

Govanhill Law Centre persuades local authority to treble rate of pay for overnight care workers

Govanhill Law Centre has been successful in persuading a local authority in Scotland to almost treble its rate of pay for overnight "sleepover care".  A self-directed care funding package had made provision for £3.51 per hour gross pay for overnight care workers - £3.03 per hour net.  That figure has now been revised to £9.38 per hour in a disabled person's care package. The funding package had previously made no provision for the cost of paying the National Minimum Wage (NMW) to carers providing overnight care. 

The requirement to pay the NMW is a statutory right is set out in the National Minimum Wage Act 1998, as amended, and the National Minimum Wage Regulations 2015. The NMW from April 2017 was £7.50 per hour (£8.54 gross), for those aged 25 and over. It will be £7.83 per hour net from April 2018. 

The local authority's position was that funding for overnight care was being considered nationally by local authorities in discussion with the Scottish Government. In dismissing the client's complaint pursued by Govanhill Law Centre's senior solicitor Laura Simpson, the council argued that "it would not be fair or equitable to increase funding to your client alone". 

A petition for judicial review was drafted in-house by Govan Law Centre's Principal Solicitor to challenge the local authority's decision in the Court of Session in relation to the relevant law.  The petition sought reduction of the local authority's decision as ultra vires and illegal. However, the local authority chose to review and increase its rate of pay above the NMW rate while the petition was sisted at the Court of Session pending determination of a full civil legal application.

The petitioner's position was that overnight carers were entitled to the NMW having regard to Whittlestone v. BJP Home Support Limited [2014] I.C.R 275, and J Esparon t/a Middle West Residential Care Home v. Slavikovska [2014] I.C.R. 1037.; and Wright v Scottbridge Construction Ltd 2003 SC 520, where the Inner House of the Court of Session held that for the purpose of Regulation 3 of the National Minimum Wage Regulations 1999 where an employee was contractually required to be at a work throughout a shift, the entire period of the shift was “time work” for the purpose of Regulation 3.

Govanhill Law Centre persuades local authority to treble rate of pay for overnight care workers

Update on judicial review and social work law decisions in Scotland

Govan Law Centre has secured permission for a petition for judicial review to proceed which challenges a decision of a social work complaints review committee that was subsequently ratified by a local authority.

Counsel for the local authority had argued before Lord Pentland on 29 July 2016 that the petitioner had failed to exhaust his remedies and ought to have complained to the Scottish Public Services Ombudsman (SPSO). The failure to do so, it was argued, rendered the petition for judicial review incompetent, and therefore it fell to be dismissed.

The defender relied on the cases of W v. Scottish Ministers 2010 SLT 65 and McCue v. Glasgow City Council 2014 SLT 891 - none of which addressed the specific issue of the SPSO.

The petitioner argued that having regard to the terms of the Scottish Public Services Ombudsman Act 2002 and the jurisdiction and powers of the SPSO thereunder, and the SPSO's own guidance on social work complaints, it was clear the SPSO could not deal with the subject matter of the petition - which claimed the council's decision was Wednesbury unreasonable and irrational in law - nor could the SPSO provide the remedy of reduction, which the petition sought.

Lord Pentland rejected the local authority's arguments on this point, and held that the SPSO did not oust the jurisdiction of the Court of Session in a petition for judicial review that claimed a social work decision decision was unlawful; and sought reduction of that decision.

Permission was granted and a substantive hearing was assigned.  GLC's Mike Dailly appeared for the petitioner; and Ms Martin-Brown appeared for the local authority.

Update on judicial review and social work law decisions in Scotland

GLC to host Recent Developments in Judicial Review seminar on Friday 10 May 2013

Govan Law Centre is hosting a seminar on Recent Development in Judicial Review: Procedure and Practice on Friday 10 May 2013 at the Orkney Street Enterprise Centre, 18-20 Orkney Street, Govan. Registration is from 9.30am, and the event runs from 10am to 12.30pm.

Mungo Bovey Q.C. will provide a presentation entitled 'Article 8 and the death of exceptionality', while Dan Byrne, Advocate will provide an update on developments in judicial review procedure. Places cost £40 and bookings can be made by contacting Anne Taylor: e-mail admin@ edlaw.org.uk or call 0141 440 2503.

GLC to host Recent Developments in Judicial Review seminar on Friday 10 May 2013