The former minister for disabled people has refused to say whether she will resign from her new post in the same department, after her decision to close the Independent Living Fund was overturned in the court of appeal.
Campaigners waiting in the rain outside the Royal Courts of Justice in London were told that three senior court of appeal judges had unanimously upheld an appeal challenging Esther McVey’s decision to close the fund in 2015.
The judges ruled that McVey had breached the public sector equality duty of the Equality Act when making the decision to close the fund in December 2012.
McVey was heavily criticised by the judges, with one saying there was no evidence that she had “directed her mind to the need to advance equality of opportunity”.
Another said he was convinced that she “was sufficiently aware of the very real adverse consequences which closing the fund would have on the lives of many of the more severely disabled”.
The new minister for disabled people, Mike Penning, will now have to rethink McVey’s decision, although he has yet to signal 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 brought by five disabled people – Anne Pridmore, Gabriel Pepper, Stuart Bracking, Paris L’Amour, and John Aspinall.
They believe that closing ILF – a government-funded trust which helps about 18,000 disabled people with the highest support needs to live independently by topping up their local authority-funded support – threatens their right to independent living.
In a 24-page judgment, the three judges – Lord Justice Elias, Lord Justice Kitchin and Lord Justice McCombe – quashed the decision to close the fund, although they did find that a consultation carried out by the government was lawful.
The judges were highly critical of both McVey and DWP officials.
Lord Justice McCombe said: “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.”
Lord Justice Elias suggested that there was a tendency for officials “to tell the Minister what they thought she would want to hear”.
But he also said he was convinced that McVey “was sufficiently aware of the very real adverse consequences which closing the fund would have on the lives of many of the more severely disabled”.
And he said there was “no evidence” that she had her attention drawn to the need to advance equality of opportunity under the Equality Act, or the government’s obligations under the UN Convention on the Rights of Persons with Disabilities.
Lord Justice Kitchin said he believed there was no evidence that McVey had “directed her mind to the need to advance equality of opportunity”.
He added: “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.”
So far, the Department for Work and Pensions (DWP) has declined to comment on whether McVey would resign from her new post as employment minister in the wake of the judges’ criticism.
It has also refused to say whether keeping ILF open is one of the options it is now considering.
Under DWP plans, £300 million in ILF funding would be passed to local authorities and the devolved administrations in Scotland, Wales and Northern Ireland in 2015-16, although this money would not be ring-fenced.
DWP has been criticised for not saying whether this transition funding would be repeated in future years.
7 November 2013