Two ILF-users – Gabriel Pepper and John Aspinall – want the Department for Work and Pensions (DWP) to withdraw its closure decision, which they say is unlawful.
They believe that losing their ILF support will threaten their right to live with dignity, and could force them into residential care or make it impossible to work or take part in everyday activities on an equal basis with other people.
ILF is a government-resourced trust which helps about 18,000 disabled people with the highest support needs to live independently, but the coalition plans to close it in June 2015 and pass the non-ring-fenced funding to local authorities.
Many campaigners believed the battle to overturn the closure decision had been won when Pepper and Aspinall, and three other ILF-users, secured victory in the court of appeal last year.
The court ruled that the decision to close ILF breached the Equality Act’s public sector equality duty (PSED), but the judgment meant only that the government had to reconsider its closure decision, this time paying “proper attention” to its legal obligations.
Mike Penning, then the minister for disabled people, told MPs in March that he had reconsidered and had decided to go ahead with the original decision to close ILF, although he delayed the closure date by three months until 30 June 2015.
But the high court ruled this summer that it was “arguable” that Penning’s decision had breached equality laws, and so should go forward to a full judicial review hearing.
Pepper and Aspinall were supported this week by the Equality and Human Rights Commission (EHRC), which warned that – if the closure went ahead – ILF-users would in future “be assessed under different criteria, which in many cases will result in significantly reduced support”.
In a statement released before this week’s two-day hearing, it argued that Penning’s decision was inconsistent with the government’s obligations under the UN Convention on the Rights of People with Disabilities (UNCRPD), while it was also bound by the PSED to consider whether the decision “adversely impacts on disabled people and to make sure ministers have full information on the potential impacts”.
EHRC believes the convention should be taken into account in determining whether DWP complied with its PSED responsibilities in deciding to close the fund.
“Before deciding to close the ILF, the minister should have considered whether the decision would advance the right for disabled people to live independently.
“No action should be taken that would diminish disabled people’s rights to independent living unless these rights impose ‘a truly disproportionate burden’ on the state.”
Rebecca Hilsenrath, the commission’s chief legal officer, said: “Even if local authorities are given money in compensation, the closure of the Independent Living Fund will result in loss of dignity and independence for many ILF recipients.
“When the closure of the fund was considered previously, the court of appeal found that insufficient consideration had been given to the consequences, which are potentially very grave for some recipients.
“The extent of the impact is still unclear, but if the closure goes ahead it will be a regressive step in terms of the right of disabled people to live independently.”
Louise Whitfield, of solicitors Deighton Pierce Glynn, who represents Pepper, said she expected a judgement in two or three weeks.
She said: “I was heartened by how seriously the judge took the case and that she recognised the fundamental importance to disabled people of ensuring the government had made a lawful decision.”
ILF-users were joined outside the courts in The Strand yesterday (Wednesday) by campaign supporters including Labour MP John McDonnell and Liberal Democrat activist and party president candidate Linda Jack, as well as members of Disabled People Against Cuts, Inclusion London, Transport for All, WinVisible, People First and Greater Manchester Coalition of Disabled People.
Some of the activists blocked traffic outside the courts, while there was a simultaneous vigil held in Toronto, Canada.
There was also support from the TUC, which has backed a new campaigning film about the importance of ILF that was released online this week.
One of the ILF-users interviewed, school governor and former social worker Mark Williams, says in the film: “With all the other cuts in benefits, if the ILF closes I’m worried that I would only have my basic needs met.”
And in a blog published three days before the high court hearing, Dr Jenny Morris – who helped write Labour’s 2005 Improving the Life Chances of Disabled People white paper, and led the review which developed its 2008 Independent Living Strategy – wrote: “The continuing fight against the closure of the ILF is being waged by a handful of disabled people but on behalf of anyone who needs support – now or in the future – in order to live an ordinary life.
“It is hard to believe that our government has signed up to article 19 of the UN Convention on the Rights of Persons with Disabilities, which concerns the ‘equal right of all persons with disabilities to live in the community, with choices equal to others’.”
But one disabled activist did speak out against efforts to save ILF.
Consultant Simon Stevens claimed that if the fund was reprieved it would probably be subject to heavy cuts and contracted out to an outsourcing giant like Capita or Atos, while “the principles of independent living and social care would quickly be eroded and replaced with a medical model approach to assessment, causing a significant backwards step in the liberation of people with high support needs”.
He said that ILF support was nothing more than “a discretionary grant with no legal basis”.
He said: “The bottom line is if I am going to have to fight to keep my support, I would much prefer to be fighting my local council as opposed to the DWP.
“DWP is a faceless bureaucracy with people and offices across the country, so I have no idea who I am fighting.
“Under local council direct payments, I have rights to my support enshrined in law. I know where the people assessing me work and I know they will meet me face-to-face.”
24 October 2014