A judge has dismissed a legal challenge to the closure of the Independent Living Fund (ILF), but has warned that scrapping the fund could lead to the government breaching the Equality Act and the UN disability convention.
Disabled activists were shocked when Mr Justice Blake announced on Wednesday (24 April) that he was dismissing a judicial review of both the government’s decision late last year to close the fund and an earlier consultation on its plans.
The five claimants – all ILF-users – are now seeking leave to appeal against his ruling that the consultation and the closure were lawful.
In his judgment, Mr Justice Blake said he had concluded that the government’s consultation was “candid and open”, despite examples of missing information brought to his attention by the claimants’ solicitors.
And he said he was satisfied that Esther McVey, the Conservative minister for disabled people, had been aware of her legal duties under the Equality Act’s public sector equality duty (PSED), and that she had paid “sufficient regard” to those duties.
The Equality and Human Rights Commission, which intervened in the case to clarify the PSED issue, said it was “disappointed” that the judge had ruled that the decision to close the fund was made in line with the duty.
Despite his ruling, the judge concluded that there was a “real possibility” that some of the 19,000 ILF-users would have their support cut after the fund was closed in 2015.
He said that this “might well prevent them hiring the care assistants they are able to employ at present to enable them to access remunerative employment, pursue higher education, participate in civic society and most significantly, be able to maintain independent living arrangements rather than return to institutional care”.
And he said that the courts might need to re-examine the PSED issue if government care reforms were “stalled or diluted”, or if guidance to ease the transition process after the ILF closure “does not arrive in time or turns out to be too anaemic” to enable the government to avoid breaching individuals’ rights under the UN Convention on the Rights of Persons with Disabilities.
He said the courts might also need to look again at whether the PSED had been breached, if government funding for former ILF-users or other disabled people was “so austere as to leave no option but to reverse progress already achieved in independent living”.
Papers handed to the court by the Department for Work and Pensions (DWP) as part of the case had suggested that the coalition would not provide enough funding for anything more than a “safety net” for former ILF-users, once the fund closed in April 2015.
After ILF’s closure, responsibility for supporting users of the fund – and £300 million of non-ring-fenced funding – will be passed to local authorities.
Many ILF-users had assumed that this funding would continue to be handed to councils by the government in the years after 2016.
But the DWP papers suggest that this funding might last for just one year, 2015-16.
DWP declined to respond directly to the judge’s comments, but released the following statement following his ruling: “How disabled people are supported to live independent lives has changed fundamentally over the past 20 years, including through the introduction of personal budgets.
“The ILF was closed to new users in 2010 and we are now devolving funding to local authorities to ensure the remaining users have their needs met in a single cohesive system.
“Nearly 1.6 million disabled people across the UK already receive support through local authority and devolved administrations social care arrangements.
“The judge agreed the consultation had been carried out correctly and has refused permission for the claimants to appeal. If the court of appeal give permission to appeal, DWP will defend such an appeal.”
25 April 2013