moneyFive people with disabilities have won their Court of Appeal challenge against the government’s decision to abolish the Independent Living Fund (ILF).

In a unanimous judgment, the court held that the Minister for Disabled People – then Esther McVey – had breached equality duties when making the decision in December 2012 to close the ILF. The Court of Appeal quashed the decision of the High Court in April that the closure was lawful.

The ILF provides support to more than 19,000 people with severe disabilities to enable them to live independent and fulfilling lives. It was closed to new entrants in 2010 and it was decided in December 2012 that it would be abolished by March 2015. The funding from the ILF, £320 million, would be transferred to local authorities to administer, but it would not be ring-fenced, leading to fears that it could be used for other areas of social care.

In the case, the claimants, who were represented by law firms Deighton Pierce Glynn and Scott-Moncrieff & Associates, feared that the loss of their ILF support would threaten their right to live with dignity, and that they could be forced into residential care or lose their ability to work and participate in everyday activities on an equal footing with other people.

Equality duty

The public sector equality duty required the Minister to have due regard to the need to eliminate discrimination and advance equality of opportunity for disabled people. In particular, this includes the need to remove or minimise the disadvantages suffered by disabled people and the need to encourage their participation in public life. The court said these requirements are not optional in times of austerity. 

In his judgment, Lord Justice McCombe emphasised that by including these duties in the Equality Act 2010, it was clearly: “the intention of Parliament that these considerations of equality of opportunity…  are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude.”

He concluded that there was no evidence that the Minister had specifically considered these issues when deciding to close the ILF and that the Minister was not fully informed about the impact the decision would have on disabled people.

In a statement, the law firms noted: "It remains to be seen whether the Government will seek to revisit the idea of closing the fund. However, it confirmed in the course of the proceedings that any preparatory steps were at an early stage and could be reversed if necessary.

"Any fresh decision would require the Government to go back to the drawing board and to take into account the wealth of concerns raised by disabled people and by local authorities about the proposal to close the fund.

"Any new decision must be taken with proper attention to the Government's legal obligations to take account of the impact on disabled people and to consider alternatives that would avoid that impact."

“Incredible outcome”

Paris L’Amour one of the claimants, said: “This is an amazing breakthrough and an incredible outcome.”

Richard Hawkes, chief executive of disability charity Scope, welcomed the ruling: "The Government says councils will provide support instead, but this just isn’t the case.

"Cash-strapped councils are massively restricting who gets social care, and a huge number of disabled people who need support to get up, get dressed and get out of the house have been squeezed out of the system.

"In 2013 if a disabled person needs support to live independently they should get it."

The government is considering whether to appeal the decision.