The government’s decision to close the Independent Living Fund (ILF) did not break equality laws and was lawful, a High Court judge has ruled.
Two severely disabled men who use the ILF lost their bid to overturn the government’s decision to close the ILF in June 2015, as the High Court ruled that former Minister for Disabled People Mike Penning had not breached equality laws in making the decision earlier this year. The two men had been granted permission for a judicial review of the process leading to Penning’s closure decision, taken just weeks after the Court of Appeal quashed a previous, almost identical decision as being unlawful.
The ILF provides support and funding to some 17,000 disabled people in the UK to enable them to live independent and fulfilling lives. To be eligible people must already receive a substantial care package from local authority social services, but ILF funding provides a top-up for those with the highest support needs. The ILF system was set up in 1988 to tackle the barriers to independent living and working faced by the most severely disabled people, which were not adequately addressed by council provision with its focus on meeting basic needs.
The claimants, represented by Scott-Moncrieff & Associates and Deighton Pierce Glynn, believe that these problems with council provision remain and are getting worse under government cuts. They fear that loss of ILF support will threaten their right to live with dignity, and they may be forced into residential care or lose their ability to participate in work and everyday activities on an equal footing with other people.
As in the earlier, successful Court of Appeal challenge, the claimants argued that Penning had not been given adequate information to be able to properly assess the practical effect of closure on the particular needs of ILF users and their ability to live independently, or to consider alternatives. The Court of Appeal ruled that this information about impact was essential for the Minister to comply with the Equality Act, which requires the Government to act to positively advance equality of opportunity for disabled people, including meeting needs, removing disadvantages and increasing their participation in public life.
Aware of impact
However, Mrs Justice Andrews ruled that a crucial difference between the two decision-making processes was that in the first, the Minister (then Esther McVey) was given an over-optimistic ‘Panglossian’ summary of information about how ILF users would be likely to be affected, whereas in the second the Minister was made fully aware of “the inevitable and considerable adverse effect” that closure would have on disabled people.
She concluded that the assumption on which Penning based his decision was that “independent living might well be put seriously in peril for… most (or a substantial number of) ILF users”. In the judge’s view that meant that the Minister had clear, unambiguous information on which to weigh up the implications for disability equality, regardless of the exact number of people who would be likely to have to go into residential care or lose their ability to work or study.
The judge emphasised that her decision was not about the rights or wrongs of closure, just whether the Minister knew enough about the likely impact to meet the requirements of a lawful decision-making process. The decision itself was up to him. The judge also declined to rule on whether the closure decision may put the UK in breach of its international legal obligations to advance disabled people’s rights to independent living and equality of opportunity under the United Nations Convention on the Rights of Persons with Disabilities.
Concern over independence
Richard Hawkes, chief executive of the disability charity Scope, reacted with concern to the news, saying that it is likely to lead to fewer disabled people being able to live independently.
“Funding will be transferred to councils, but there will be no guarantee that the money will be used to support disabled people to live independently, or that former ILF users will receive the same levels of support, given the pressures on local authority finances,” he said.
“The care system is on its knees. Chronic under-funding and year-on-year rationing mean that too many people that need help to get up, get dressed, get washed and live independently face a daily struggle for support.
“With its recent care reforms, the Government has set out an ambitious vision for the future of social care. But if this vision is to become a reality, social care needs sustainable funding.”