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.
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 (more details at upliftlegalfunding.com), 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.