The unanimous decision to quash the closure, by three court of appeal judges – Lord Justice Elias, Lord Justice Kitchin and Lord Justice McCombe – was issued in a 24-page judgment at the Royal Courts of Justice (RCJ) in London.
They ruled that Esther McVey, the former minister for disabled people, breached the Equality Act’s public sector equality duty, which required her to have “due regard” to the need to eliminate discrimination and advance equality of opportunity for disabled people.
Her ministerial replacement, Mike Penning, will now have to rethink the decision on the closure of ILF “with proper attention” to the government’s legal obligations. He has yet to say whether he plans to appeal to the Supreme Court, make a fresh decision to close the fund, or accept defeat and keep it open.
The legal challenge to a high court decision made in April was taken by five disabled people: Anne Pridmore, Gabriel Pepper, Stuart Bracking, Paris L’Amour, and John Aspinall. They were represented by lawyers from Deighton Pierce Glynn and Scott Moncrieff and Associates.
The five claimants believe that closing ILF – a government-funded trust which helps more than 18,000 disabled people with the highest support needs to live independently by topping up their local authority-funded support – would “threaten their right to live with dignity” and could force them into residential care.
The singer John Kelly, who was originally part of the court action but later had to withdraw from the case for work reasons, was in court 63 at the RCJ this week as the ruling was read out.
He said he had been convinced that the government would win the case, and became “really emotional” when he realised the five had won.
He said: “I am so happy. This matters to me. I wouldn’t be here this morning if I didn’t have the ILF. This means essential control over my own life. This really matters.
“We are taking on the government and we are not the strongest of people, we haven’t got the loudest voice and we are really trying hard to have that voice and to be heard.
“There are so many people who wanted to be here to hear this but they can’t be here.”
He added: “We want to see the ILF stay. We want to see it expand so more disabled people can get it, not less.
“This is about fundamental human rights. This is about equality, it is not about having anything extra than anyone else has in life.”
Kelly said the judgment was probably “a spanner in the works that says [to the government]: ‘We are not going away!’”.
Stuart Bracking, one of the five claimants, said the judgment was “very positive” and had given ILF-users and their families confidence that the fund could be saved.
“Before the appeal court victory, the closure of the fund and limits on the level of funding of personal assistance for some and a return to residential care for others seemed to be our destiny. This is not the case now.”
He added: “The appeal court victory now gives ILF-users a small window of opportunity to demand sense prevails, and work to secure the ILF’s long-term future.”
He called on Penning to stop the closure, and reopen it to new applicants with “realistic levels of funding to meet the expected demand”.
Sue Elsegood, an ILF recipient for more than 20 years and a close friend of two of the claimants, said the judgment “means everything to me”.
She said: “It is going to have a massive impact on people’s lives. They will hopefully be able to continue to live, rather than simply exist.”
Elsegood, who was in court with Kelly to hear the judgment, added: “If I lost the ILF funding it could have meant that I would be forced into an institution or left neglected at home. It filled me with fear.
“Now I have more confidence that I can continue to live independently with personal assistance and participate in activities in the community.”
She said she believed that government ministers still struggled to understand the importance of ILF, and “what we have to deal with day to day”.
She said life would be “very, very depressing and impossible” without ILF. “I rely 100 per cent on my PA support. I just cannot imagine how I would manage.”
ILF has enabled her to train as a counsellor at university. “I would not be here today to hear the judgment without the support that ILF gives me to pay for my PA’s wages.”
Tracey Lazard, director of Inclusion London, one of the campaigners who waited in the rain outside the courts for the judgment, said the ruling was a “damning indictment of this government’s decision-making, particularly the lack of consideration for disabled people, our dignity, our quality of life and our rights”.
She said: “This judgment clearly says that the minister didn’t take into consideration the impact of this closure on disabled people, which is something we knew all along.”
She said the judgment confirms that the reasons the government put forward for the closure were “a sham” and “done in bad faith”, while the decision was “a cut dressed up as reform”.
Lazard said that ILF was cheaper to administer than social services provision and should be seen as a “fantastic model” for 21st century care provision.
She added: “I just hope that this is such a strong and damning judgment that they really pause for thought here.”
Andrew Lee, director of People First Self Advocacy, another of the campaigners who waited in the rain for the judgment, said: “I was really, really, really pleased for the people that use the ILF because they were really panicking about what they could do when the fund stops, how do they have some kind of quality of life.
“It is the first step in making sure that people with learning difficulties are able to live independently, using the ILF to have a good standard [of living]and do basic things like get up in the morning and have the support they need to try and have a level playing-field like anybody else.”
He said he was pleased that the court had ruled that closing ILF would have an adverse impact on disabled people. “To actually get legal recognition of that fact is really important.”
Despite the outpouring of relief, one disabled activist did strike a sour note.
Simon Stevens, a disability consultant, wrote in a blog on the Huffington Post website that keeping ILF open would be a disaster for disabled people, as the fund was “likely to make a hatchet job” of the inevitable cuts it would have to make, because it did not have the same “sophistication and experience of managing limited resources” as councils.
He said the appeal was won on a “political correct notion of equality” and “potentially guaranteed inequality as it supports a two tier system for people with high support needs”, with those on ILF receiving higher levels of support than those who are not.
Stevens, who has repeatedly and aggressively criticised the grassroots network Disabled People Against Cuts, which has campaigned against the ILF closure, wrote: “The fund was always elitist, and I say that as [a]user, and now that elitism has been protected by the courts, simply to please the anti-government lobby.”
So far, the Department for Work and Pensions has refused to say whether keeping ILF open is one of the options it is now considering.
7 November 2013