Preconditions for judicial review

Before bringing any action by judicial review, specific conditions must be met.

This content applies to Scotland

Requirements for judicial review

There are five preconditions:

  • There must be grounds for judicial review of the acts complained of.

  • The person, authority, or organisation whose acts are complained of must be the type of body whose acts (or at least some of them) are within the scope of judicial review (ie a local authority).

  • The type of act complained of must be one that competently can be made the subject of judicial review. (Some of the things public authorities do are governed by the ordinary rules of private law, for example, the laws of contract, delict and property).

  • The person bringing the action under judicial review must have both 'title and interest' to bring an action of judicial review against the body whose acts are complained of (ie that person must be an appropriate person to bring the case and they must be directly affected).

  • There must be no statutory remedy still open to the aggrieved person against the acts complained of [1] (in other words, all other appeal procedures must have been exhausted otherwise judicial review cannot be used).

These preconditions should not normally cause any difficulties for homeless persons challenging adverse decisions, because if there has been a decision on their application that is unfavourable after the formal review process has been completed, all five preconditions will be satisfied.

Time limit

An application for judicial review must be made within three months of the date of the decision being challenged. [2] The court can use their discretion to extend this time limit 'having regard to all the circumstances'. [3]

It was held (in an asylum appeal case) that the three month time limit for judicial review runs strictly from the date that the decision is made, but if the decision is not actually received until a later date, this can be taken into account when deciding whether to extend the time limit. (However see below with regards to using Scottish Public Services Ombudsman.) [4]

Judicial review or Scottish Public Services Ombudsman

It has been held that a complaint to the Scottish Public Services Ombudsman (SPSO) did not prevent someone raising judicial review, where this was the appropriate remedy [5]. It was noted that that the time bar for judicial review is 3 months, whilst the time bar for a SPSO complaint is 12 months. There have been Court of Session cases where the court did not extend the judicial review time bar to take into account time spent trying to complain to the SPSO. Therefore, if judicial review may be a remedy, advisers should ensure this is given priority. The SPSO, can be asked to delay the outcome of their enquiries, pending the outcome of the judicial review.

Last updated: 28 August 2020

Footnotes

  • [1]

    It may be competent to bypass the appeals procedure using para 3 of the preamble to the Act of Sederunt (Rules of Court, Consolidation and Amendment) 1965 which allows the Court of Session to make exceptions to the Rules of Court if hardship or injustice would result.

  • [2]

    s.27A(1)(a) Court of Session Act 1988

  • [3]

    s.27A(1)(b) Court of Session Act 1988

  • [4]

    Odubajo v Secretary of State for the Home Department [2020] CSOH 2

  • [5]

    McCue v Glasgow City Council [2020] CSIH 51

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