In a very significant decision on 6 November 2013, which highlights the effects of the Equality Act 2010 on public authorities and their decision-making, the Court of Appeal has found that the Department of Work and Pensions’ (DWP) decision to close the Independent Living Fund (ILF) was not lawful, overturning the High Court’s decision of April 2013.
People with disabilities may receive ILF from a non-departmental Government body which provides money to help disabled people live independent lives in the community. The ILF operates an independent discretionary trust funded by the DWP and managed by a board of trustees. Its aim is to combat social exclusion on the grounds of disability and the money is generally used to enable disabled people to live in their own homes and to pay for care which would otherwise need to be given at residential care homes.
The Government initially decided to close the fund by March 2015 but this was delayed until June 2015 after five disabled people challenged the Government’s decision in the High Court.
The Court of Appeal unanimously quashed the decision to close the fund and devolve the money, on the basis that the minister had not specifically considered duties under the Equality Act, such as the need to promote equality of opportunity for disabled people and, in particular, the need to encourage their participation in public life. The court emphasised that these considerations were not optional in times of austerity.
On March 6, 2014, the Government announced in authoritarian style that it would go ahead with the closure of the ILF fund on 30th June 2015 justifying this decision by claiming that a new equalities analysis had been carried out by the Department for Work and Pensions. The government has shown a complete disregard for disabled people and the Court of Appeal decision. The government had failed to comply with the Equality duty – and this was a rare victory entirely due to disabled people fighting back.
The Department of Work and Pensions is now facing a new judicial review challenge from a group of disabled people regarding the decision of Minister for Disabled People Mike Penning to close the ILF in June 2015, taken just weeks after the Court of Appeal quashed the previous decision. .
The ILF provides vital support and funding for severely disabled people in the UK ,to enable them to live independent and fulfilling lives. To be eligible for ILF, people must already receive a substantial care package from local authority social services, but ILF funding also provides a top-up for those with particularly high support needs. Severely disabled people are at high risk of social exclusion and face particular barriers to independent living and working.
The claimants, represented by Deighton Pierce Glynn and Scott-Moncrieff & Associates, fear that loss of ILF support would threaten their right to live with dignity, and they may be forced into residential care or lose their capacity to participate in work and everyday activities on an equal footing with other people.
The Court of Appeal had ruled in November 2013 that the previous closure decision had breached the public sector Equality duty, within the Equality Act, because the Minister had not been provided with 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.
The DWP admitted that in considering the proposal again it had not consulted with any organisations or individuals outside of the Government, or gathered any additional information from local authorities or other sources about what level or type of support former ILF users would receive from social services once the ILF element was removed and how many people would be likely to go into residential care or lose their capacity to work or study.
The new legal challenge is pretty much on the same basis as the first – that once again the Minister had not discharged the public sector Equality duty because he did not have adequate information to be able to properly understand what the impact of closure would be on the particular people affected. This made it impossible to assess the proposal with the necessary focus on removing disadvantages for disabled people, meeting their needs, increasing participation in public life and advancing the equality that is required in all decisions by Government, within the framework of the Equality Act.