R (Bracking) and Others v Secretary of State for the Department of Work and Pensions
The legal challenge to the Government decision to close the Independent Living Fund
This claim for judicial review was brought by five disabled claimants to challenge the decision of the DWP to close the Independent Living Fund in 2015. The fund has been in existence since 1988 and provides grants to severely disabled people to enable them to live independently. The ILF enables disabled people to control the way they use the funds and currently provides support to almost 20,000 of the most severely disabled adults in the country. Many ILF users receive some support from local authorities to help with their basic care needs but also receive funding from the ILF that enables them to live more independently. Some only receive funding from the ILF.
In 2010 the fund was temporarily closed to new users and in December 2010, without any consultation, the Government announced that the fund would remain permanently closed to new applicants. It also announced that it would carry out a formal consultation on the future of the ILF in 2012.
The consultation ran from July to October 2012. This claim was started before the consultation ended. The Claimants argued that the consultation itself was unlawful. The main reasons were: (1) that the consultation paper did not give enough information for people to be able to comment fully; and (2) that the DWP had not properly assessed the impact of closure on those disabled people who were currently receiving ILF support.
The consultation paper proposed that ILF funds would be ‘devolved’ to local authorities after 2015 so that the people currently receiving ILF support would, in future, be assessed and supported by social services departments and only receive funding for care from them. However, it did not say how much funding would be ‘devolved’ or if the funding would be ring-fenced (to ensure that it was spent on supporting adults with care needs). Further, it did not give enough information about the way social services assess and support disabled people.
The DWP also said that it could not assess the impact on disabled people until after the consultation had ended. It said that it would publish a full impact assessment when it made its final decision. The Claimants argued that this was unlawful and that the DWP had enough information to carry out a broad assessment of the impact and to set this out at the beginning of the consultation.
Under the Equality Act 2010 public bodies, including government departments, must have “due regard” to certain equality principles when it makes decisions and develops policies. This is the “public sector equality duty” and it applies when decisions and policies are likely to affect a group of people with a protected characteristic. Disability is a protected characteristic. Under this duty, public bodies
must have due regard to the need to advance equality of opportunity for disabled people. This duty has three elements: the need to remove or minimize disadvantages suffered by disabled people, the need to take steps to meet their special needs and the need to encourage disabled people to participate in public life.
Because of how important the ILF has been in the lives of those it has supported, and particularly the way it has enabled severely disabled adults to live independent lives and to undertake education and training, to work and to play a full part in their communities, the Claimants argued that there was a very strong duty on the DWP to take steps to find out how the proposal would affect ILF users and other disabled people. The Claimants’ case was that the DWP had acted unlawfully in failing to do this.
After the claim had been issued the Government announced, in December 2012, that it had decided to close the fund. It also made clear that whatever funding may be ‘devolved’ to local authorities would not be ring-fenced.1 The claim was therefore amended to challenge not only the consultation process but also the decision to close the fund. The challenge was still focused on the process of the decision- making: the failure to consult lawfully and the breach of the public sector equality duty when making the final decision.
During the proceedings, the Claimants discovered a number of things that had not been made clear in the consultation:
- other options, such as postponing closure until after 2015 had been considered;
- the DWP had estimated the costs of closure at £39 million;
- that one, central, reason for recommending the closure of the ILF was that the money currently spent by the ILF on the support packages for its users would be unlikely to be available to the DWP after 2015.
So, although the DWP had presented the decision as being purely about reform and streamlining the way funding was to be distributed, in reality, this was about cutting the funds available to support disabled people. The Claimants argued that this should have been made clear in the consultation.
The Equalities and Human Rights Commission intervened in the case to advise the court on how the public sector equality duty should have been discharged by the
1 In the Government’s published response to the consultation it was stated that “in their response to the consultation, most local authorities said they would be strongly opposed to a ring fence around this funding” but this was completely untrue. Not one of the local authority responses obtained by the Claimants under the Freedom of Information Act expressed opposition to ring fencing; 33 out of 80 were in favour of ring-fencing or suggested it should be considered and several authorities expressing qualified support indicated that their position depended on whether the funding would be ring fenced. The rest made no comment about ring fencing.
DWP. In their submissions, it was pointed out that the public sector equality duty is part of how the Government meets its international obligations under the UN Convention on the Rights of Persons with Disabilities (UNCRPD).
The judge heard argument for one and a half days and decided that the DWP had carried out an adequate consultation and had not breached the public sector equality duty: he dismissed the claim. A written copy of the judgment is available on the websites of the solicitors instructed: Deighton Pierce Glynn at www.deightonpierceglynn.co.uk and Scott-Moncrieff & Associates at www.scomo.com.
The judgment fails to explain the judge’s reasons for reaching the conclusions he did or to set out the evidence he relied on to reach those conclusions. The judgment is therefore hard to follow. In relation to the consultation process, the judge specifically found that there was enough information for people to engage in the process in a meaningful way. He also decided that the information that had not been provided (about the costs and reasons for closing the ILF) did not make a significant enough difference to the consultation exercise to make it unlawful, though these would have been important issues for people to comment on.
In relation to the public sector equality duty, the judge decided that this had been brought to the attention of the Minister for Disabled People and therefore the duty had been met. He referred to a number of documents and information available at the time the Minister was making the decision. However, none of these explained the duty properly or gave the Minister enough information to consider the specific elements of the duty set out above.
The Claimants are therefore seeking permission to appeal to the Court of Appeal. The Claimants are not just seeking to preserve the ILF for the existing users but want
the ILF to continue and for all young disabled adults to be able to apply so that they
can be supported to live independent lives. It is with this goal in mind that they wish to pursue their legal challenge further: to ask the Court of Appeal to quash the decision that the ILF should close and to force the Government to think again about how it funds care for severely-disabled people so they can maintain their independence throughout their lives.
For further information (solicitors representing the Claimants): Deighton Pierce Glynn (Louise Whitfield)
8 Union Street
London SE1 1SZ Tel: 020 7407 0007
Scott-Moncrieff & Associates (Diane Astin/Kate Whittaker) Office 7, 19 Greenwood Place
London NW5 1LB Tel: 020 7485 5588/ 07792 700825