In its disability policy, the Government wants to “have its cake and eat it”

This morning the Court of Appeal quashed the decision of the High Court that the Government acted lawfully in deciding to close the Independent Living Fund (ILF), which provides funding for independent living for around 19,000 disabled people with the highest support needs. This has some significance for me because in the first article I ever wrote for the Guardian  I explained how adequate, self-directed social care support, provided by local authorities and/or the ILF, can enable disabled people to live active and fulfilling lives, engaging in paid work and participating fully in our communities, and how this is at risk due to cuts to social care funding and the proposed closure of the ILF.

I’ve now read the full Court of Appeal judgement which, as a law graduate, I found of particular interest. Firstly, the appeal court judges upheld the High Court’s view that the consultation was lawful; Lord Justice McCombe decided:

In my judgment, therefore, I consider that the Appellants’ outstanding criticisms of the consultation process fall away and it is not necessary, therefore, to consider whether the Judge gave adequate reasons for dismissing the judicial review claim on this part of the case.

However the appeal court judges did go on to find there was insufficient evidence that the Minister for Disabled People had properly discharged her legal obligations, under the Public Sector Equality Duty (Section 149 of the Equality Act 2010), to have “due regard” to the need to advance equality of opportunity, by

  • Removing or minimising disadvantages suffered by disabled people.
  • Taking steps to meet the needs of disabled people where these are different from the needs of other people.
  • Encouraging disabled people to participate in public life or in other activities where their participation is disproportionately low.

The appeal court judges found that there was little or no hard evidence that the Minister had properly considered the very serious impact of the ILF’s closure on its users including (as highlighted by both local authorities and disabled people who responded to the consultation) the significant risk that some would no longer be able to live independently in the community without support from the ILF. In explaining his decision, Lord Justice McCombe emphasised the serious risks to disabled people’s independence:

In my view, there is simply not the evidence, merely in the circumstance of the Minister’s position as a Minister for Disabled People and the sketchy references to the impact on ILF fund users by way of possible cuts in the care packages in some cases, to demonstrate to the court that a focussed regard was had to the potentially very grave impact upon individuals in this group of disabled persons, within the context of a consideration of the statutory requirements for disabled people as a whole.

It seems to me that what was put before the Minister did not give to her an adequate flavour of the responses received indicating that independent living might well be put seriously in peril for a large number of people.

Concurring, Lord Justice Kitchin said:

…I am in full agreement with McCombe and Elias LJJ that, for reasons they have both given, it is simply not possible to infer that the Minister ever considered the proposals with a proper focus on the particular matters to which she was required to have due regard. There is no evidence she directed her mind to the need to advance equality of opportunity. Nor is there evidence she considered the proposals having due regard to the need to minimise the particular disadvantages from which ILF users and other disabled persons suffer or the need to encourage such persons to live independently and to participate in public life and other activities.

Following the judgement, lawyers for the appellants acknowledged it is still open to the Government to decide to close the ILF, since the appeal court judgement applied to the decision-making process rather than the substantive decision; however:

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.

(Deighton Pierce-Glynn and Scott-Moncrieff & Associates, solicitors for the appellants)

In the article I wrote last year and in the quote I contributed this morning to the Guardian’s write-up of today’s decision, I highlight the lack of coherence in the Government’s disability policies. Whilst the Government repeatedly emphasises its desire for disabled people to work and to participate in society, at the same time its policies seek to prevent us from doing so. Many ILF users are able to work and participate despite significant impairments because they receive a high level of support, generally via a direct payment that enables them to employ their own staff to support them in the way that suits them best. Without that support, their ability to participate – or even get washed, dressed and out of the house – will be totally compromised; some may even have to move into residential care, an outcome as unacceptable to disabled people as it would be to anyone else.

We also see this contradiction in other areas. As I explained in a Guardian article about PIP, for disabled people with significant walking difficulties, the higher rate mobility component of Disability Living Allowance funds our independent mobility, either through the Motability scheme or otherwise, and thus enables us to work and to participate in family and community life. If we lose this allowance under the stricter criteria of Personal Independence Payment (the 20 metre rule) it will be difficult or impossible for us to work, take our kids to school, support our elderly relatives or perform the myriad different roles we assume at different times in our lives.

I’ve been told the new Minister for Disabled People, Mike Penning, is both straightforward and straight-talking. Perhaps he could apply this refreshing approach to this contradictory area of policy, in which the Government expects disabled people to work and participate whilst at the same time removing the support that enables us to do so.

NOTE: others have blogged on this judgement, notably

  • Richard Watts at Arbitrary Constant, who explains the history of the ILF, drawing attention to a review undertaken in 2007 by Henwood and Hudson, and discusses the elements that need to be in place if the ILF is to be closed, and
  • Disabled People Against Cuts, who also discuss the 2007 review in detail but question its validity for a number of reasons, including the changed public sector/social care landscape under the current Government’s austerity agenda.

26 thoughts on “In its disability policy, the Government wants to “have its cake and eat it”

  1. Its good some common sense can do something .This Goverment just wants to hit those who cant fight for themselves . your doing a woderful job.xx

  2. Only caught some of the coverage-mainly BBC but I did sense(and Clive Coleman v good in explaining )an unusual impartiality,even sympathetic hearing of the issues .

  3. I have no knowledge of the Law (aside from the Equalities Act) but I read this as an excellent Victory; at last judges determined this Gov, through it’s Minister, had failed to direct her mind to the need to advance equality of opportunity, and this in my mind what has happened throughout Welfare Reform.

    Excellent blog Jane & a real success in which you played a significant role – THANKS & WELL DONE xxx

      • Your informed columns etc raised awareness which in turn adds support to larger campaigns – never underestimate the power of a clear argument xx

  4. Excellent reflections as always, forwarded to our lead ILF civil servant (amongst others).

    Regards,

    Paul
    Sent from my BlackBerry® wireless device
    ________________________________
    From: Jane Young
    Date: Wed, 6 Nov 2013 20:51:01 +0000
    To: Paul Swann
    ReplyTo: Jane Young
    Subject: [New post] In its disability policy, the Government wants to “have its cake and eat it”

    Jane Young posted: “This morning the Court of Appeal quashed the decision of the High Court that the Government acted lawfully in deciding to close the Independent Living Fund (ILF), which provides funding for independent living for around 19,000 disabled people with the hig”

  5. Well done Jane, don’t know what we’d do without you. Will the judicial review for PIP mobility component be going forward, and if so,will this decision have any bearing on the outcome ? I would have thought the failure on the part of the minister to properly consider the effects of the decision on disabled people applies just as much to PIP, given that the Equality Act requires support to be given to minimise disadvantage and meet the needs of disabled people. The government seems to think they only have a duty to support the most needy, when the Act applies to all disabled people.

  6. Pingback: Court of Appeal declares ILF closure unlawful | We are Spartacus

  7. Hopefully, the Government will take stock & take a better approach to closing the ILF.

    • You’re a strange person Ed Scott. On one hand you go on about fakers and ‘genuine disabled’ people should get help, yet you are unhappy about the Government losing the appeal which would have closed the ILF fund. You do realise genuine ‘disabled people’ as you say use the ILF? Closing the ILF would affect a lot of people’s independance.

      • Fully agree. The ILF provides irreplaceable support to the most severely disabled and I don’t understand Ed Scott’s comment about a ‘better’ approach to closing the ILF, when closing it at all would be disastrous for those to whom it allows independence. The whole question of ‘fakers’ is spurious when it comes to disability benefits and the incidence of fraud so low as to call into question the need for such radical change – is Ed Scott implying that there are ‘fakers’ in receipt of ILF funding too ? The government’s approach to disability benefits implies that they feel they only have a duty to support the most severely affected – as evidenced by the harshness of the PIP assessment. The Equality Act calls for support to all disabled people so as to minimise any disadvantage caused by disability, and to allow full participation in society, but the assessment for associated benefits does not accurately reflect need and over simplifies complex aspects of disability with only one thing in mind – saving money. What’s needed is a fresh look at the way disabled people are being assessed, if the Equality Act is to have any real meaning.

      • Ed Scott is a placeman – he’s every where , on blogs on the Independent, espousing his rubbish about feckless disabled people, removing blue badges and so on – take no notice of his insidious views

    • The ILF is closed to new applicants, & is an outdated benefit – it should be cancelled. IDS is quite right to try to pass responsibility to councils. Regarding mobility disability, PIP is not strict enough when assessing who should have benefits. Only those who cannot walk or have great difficulty in walking should have mobility benefits – not greyhounds with sticks, or other fakers who constitute the majority who have Blue Badges & cars.

      • Where is your evidence Ed that the majority of fakers get Motability and blue badges? The fraud rate is 0.05% on the DWP own figures. I don’t count looking at people at Supermarkets as evidence. Back up your claim Ed with proper figures, if you cannot then don’t spout your rubbish on here.

      • Alas it’s not as cut and dried as you may think. There are many disabilities that aren’t as obvious as being in a wheelchair. Many people may have heart conditions, kidney failure, brain tumours, cancer, mental health issues. Just to name a few. These people are just as disabled & unwell/unfit to work as those who have obvious disabilities. I honestly hope you don’t find yourself in my position or suffering from any health issue. Most of us would give anything to be healthy, free from illness and able to work again. I personally have high earning potential & the education/qualifications/experience to do so; alas I became very ill 5yrs ago & I’ve had to get used to being unable to do all the millions of things I could do before I got sick.
        You probably aren’t remotely interested but please do remember there but for the grace etc, etc.
        I hope you will remain healthy & well enough to have a steady income & to pursue all of the goals you set yourself in life.

        Best & kindest regards

  8. I remember me ol’ Grand Pappy used to say, “if it looks like a dog, walks like a dog, smells like a dog, & barks like a dog, then it’s a dog!” Likewise, if it exits a car normally, walks normally, shops normally, & returns to the car normally, then it is mobility normal. I blame GPs for signing forms so that fakers obtain Blue Badges. It’s reached the stage that genuinely mobility-disabled people cannot find a wide bay to park in because these are blocked by fakers who could quite easily use a normal bay. Many complaints of this nature are sent to the Spinal Injuries Association from its members. From my experience of dealing with genuinely mobility-disabled people – 20 years – I would say that at least 6 out of 10 Blue Badges should be removed immediately. Remember: Blue Badges are not supposed to be given for medical reasons, but for severe mobility-restricted reasons. IDS should allow ATOS to test for a Blue Badge – & not leave it to useless GPs & councils.

    • Well Ed, you certainly talk a load of dogs bull. I wouldn’t go by with what you say. You have an agenda against anyone who you think doesn’t look disabled. You think disability is all about being in a wheelchair. Well it’s not. You seem to be happy about thousands of genuine disabled people losing their benefit when PIP happens. What you don’t realise is that PIP is changing the definition if disability. Some will now qualify who couldn’t before. These people will appear to be fakers to you. A lot of genuine people will lose their independence because of the stupid 20m rule.

  9. Oh dear… It is a long time since I have read such an intimidating commenter as ed Scott, has ed shared his credentials with us? What experience does he have that qualifies him to write such callous and sweeping statements… Disability is not always visible – the major impact of neurological fatigue relating to MS, MND, Parkinson’s. the importance of keeping amputees leg stumps intact so that they can wear an artificial limb, the impact of chronic airway disease, seizures brought on by fatigue, kidney failure, cancer heart failure and so on.

    Does ed want us to go around with a label on to name our conditions, rarely have I met with so much ignorance,

    I am too angry to go on

    • Hi Nanny Ogg

      Ed Scott is just a sad, pathetic low life who only comes on these forums to wind people up. It’s very easy to get angry with what he says, but it is best to ignore him. He will get his just deserts one day. I believe in Karma. What he says isn’t important. He is only one sad bitter jealous person. Why he is like this, I don’t know. He appears on other forums like this posting his usual rants about blue badges. I think he needs help.

      • During this time of recession, the biggest growth industry has been the disability industry. More & more have been classed as disabled, & IDS is trying to curb this nonsense. The definitions of disability for benefits have become too lax, & so they are being tightened. This is the right course of action. Over the last few months, I’ve been trying to spot the many who claim that they can’t walk over 50m – never seen one! Every gympy & greyhound with a stick has covered many metres more than 50m from his/her Blue-Badged car without any distress – total fakers! All power to IDS, ATOS, & the DWP!

  10. I’ve decided to block Ed Scott from commenting any more, on the grounds that he repeats the same comments over and over again and we’ve really, really had enough now!

    • Good move Jane. No doubt though that he will appear on other disabled sites, spouting his usual rants !

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