ILF- DWP equality analysis relating to the closure of the fund
Full Equality analysis
Throughout this document the numbered paragraphs in italics are the wording used by the government in their equality analysis.
In spite of the Court of Appeal ruling on November 6th 2013 quashing the government’s decision to close the Independent Living Fund to current users the government have again announced the closure of the fund from June 2015. This decision will negatively affect the UN convention rights of disabled people particularly in relation to articles 19, 24 and 27.
In relation to the new equality analysis the government made to try to meet its duties under the Equality Act 2010 they admit that going ahead with the closure of the ILF will lead to a regression of disabled people’s rights as outlined in UNCRPD.
That is in spite of them being a signatory to the convention which commits the UK to ensure the progressive realisation of disabled people’s rights to live independently in the community and be able to take part in society on an equal basis to non-disabled people.
The cost of the ILF is currently a mere £320 million which is a miniscule amount of overall public spending.
Within the equality analysis the government have also implied that ILF can be replaced by Disabled Students Allowance or Access to Work funding which is either duplicitous in explaining the use of Disabled Students Allowance and Access to Work funding or shows a total ignorance about what these funding streams can actually be used for.
Articles 4, 19, 24 and 27 have been breached and in particular the three parts of Article 19 which recognise the equal right of all disabled people to live in the community, with choices equal to others, the need to take effective and appropriate measures to facilitate full enjoyment by disabled people of this right and their full inclusion and participation in the community.
The general obligations in Article 4 of the UNCRPD, Article 4(2) of which states that parties to the Convention should undertake measures with a view to progressively achieving the full realisation of the rights of disabled people.
Article 24 – education – ensure persons with disabilities are not excluded from the general education system on the basis of disability; and
Article 27 – work and employment – safeguard and promote the realisation of the right to work and promote employment opportunities
Overview of analysis
The government make clear that the changes being outlined will only apply to England and not the whole of the UK as the devolved governments in Scotland, Wales and Northern Ireland will be able to make their own decisions about ongoing care and support funding for their residents.
Perhaps most importantly in reaching their decision and carrying out this equality analysis the government have only looked at the immediate transition period when one years non-ring fenced funding only will be devolved to local councils and not to the longer term impact of closure of the fund when there will be no additional devolved funding available to local authorities.
The 2013 Spending Review allocated a total of £262.3m to be transferred to local authorities in England and to devolved governments in Scotland and Wales in 2015-16 (funding for Northern Ireland is already a matter for the Northern Ireland administration).
They have not in any way considered or evaluated the impact of closure of ILF once this transition funding ends in 2016.
The government say they have based this second decision on evidence gathered during the consultation on the future of the ILF undertaken in 2012, along with further representations made to them since the consultation closed. However they give no information about what that evidence is, where or how it was collected or whether it involved any input from disabled people themselves. (point 12)
They then say at point 14 that the government is fully committed to supporting independent living through personalisation and localisation of care and support. This drive to push care and support funding for independent living onto local authorities is happening against the backdrop of the same government being found by the Council of Europe in March 2014 to have made such savage cuts to local government funding that the UK is in breach of its international obligations and official rapporteurs for the Council of Europe have found funding levels inadequate and too low to provide essential public services including health, social and elderly care. This findings of this report have been supported by the Conservative councillor and previously leader of Kensington and Chelsea council, Sir Merrick Cockell, who is now chairman of the Local Government Association. 
In addition the Care Bill if passed will restrict eligibility to care funding to substantial and critical only. The analysis says at this point – from April 2015 – that everyone will have a right to a personal budget but in later paragraphs of the equality analysis contradicts this entirely.
The government say that there is no doubt that the ILF continues to play a very important role in the lives of its users However they were the ones that created inequity in the system when they closed the fund to new users that since they closed the fund to new applicants in 2010. This has meant some disabled people are unable to access the fund.
They continue to say that closing the ILF and transferring the funding to local authorities in England and to the devolved administrations in Scotland and Wales would enable them to use all the funding available for adult social care to support disabled people in a more consistent, effective and equitable way, within a cohesive mainstream system. Yet they refuse completely to consider any type of ring-fencing of that funding which means none of it has to be used to fund social care at all. With extensive cuts to social care and a system in crisis these platitudes are not credible. They further ignore the fact that any inequities in the system result from their decision to close ILF to new users from 2010.
Impact of Closing ILF identified by the government’s equality analysis.
The government say closure of the ILF will have a direct effect on disabled people, and in particular, those disabled people who are current users of the ILF. Two conditions are predominant among ILF users: severe learning disabilities and cerebral palsy (33% and 16% respectively).
Government admit that closure of the ILF will affect a disproportionate number of people with learning disabilities. However, they say there is no available evidence that would enable them to assess whether those with learning disabilities would be more significantly affected or affected in a different way when compared with users with other conditions.
33.The government say the ILF has undoubtedly played a significant role in supporting its users to live independently in their own homes, to access educational and employment opportunities and to participate actively in their communities. Closure of the ILF and the fact that the funding transferred to local authorities and the devolved administrations will not be ring-fenced in respect of current ILF users or disabled people more generally, has generated concern that ILF users will, as a result of reductions or changes to their current care and support arrangements, be denied opportunities they now have to participate fully in society.
This is clearly a regressive step and represents a grave and systematic violation of disabled people’s UNCRPD rights in relation to articles 4(2), 19, 24 and 27.
36.The government say that in the consultation disabled people’s concerns were linked to worries about care packages being reduced and disabled people being unable to achieve the same outcomes as they have with the ILF.
The equality analysis says this is most likely because the ILF provides greater flexibility in the use of funding than most local authorities. It is almost certain that closure of the ILF will mean that the majority of users will face changes to the way their support is delivered, including the real possibility of a reduction to the funding they currently receive. This is because the ILF funds some aspects of care that some local authorities do not and may also provide different levels of flexibility in the use of such funding.
37.The statement says loss of ILF funding could mean that current ILF users will have to make different choices about their daily lives. For example, this might be because they will no longer be able to employ a personal assistant. (37) but the government fail to explore exactly what that would mean for disabled people and say simply the extent to which this will occur is impossible to calculate, given the variety of conditions and differences in local provision.
Thus in the equality analysis the government itself says that there is a real possibility of a reduction in funding, in less flexibility about what is funded and that choice and control over how people live their lives will be lost.
38.Another common concern raised by disabled people in the consultation was about inability to access social activities, voluntary work or employment either because of reductions in the number of care hours funded, or because the local authority would fund attendance a day centre rather than pay for a personal assistant to accompany people to activities of their choice.
41.The equality analysis shows this is likely to have an adverse, detrimental and regressive effect on ILF users because of monetary reductions in the amount of support a person receives and because of changes in how that support is delivered. In its joint response to the consultation, the Local Government Association and the Association of Directors of Adult Social Care stated that;
“As ILF recipients transfer into the LA system in 2015, and are subsequently reviewed against the [local authority assessment] criteria, the value of the personal budget calculated through the Resource Allocation System will generally be at a lower level than the initial ILF/LA budget.”
45.While it is accepted that closure of the ILF will mean monetary changes to the value of the support ILF users receive under the current arrangements, the crucial point for users will be what outcomes they are able to achieve rather than the money that they personally receive through a direct payment.
The equality assessment says any reductions in the value of care packages will not necessarily undermine those outcomes, local authorities currently offer users both care services and direct payments to meet their needs. Therefore, whilst the closure of the ILF may mean that users receive less money through a direct payment, this may be offset by more care services being paid for directly.
This directly contradicts what the government say with regard to the increasing use of personal budgets in the Care Bill. Provision of direct services is not the same as having a personal budget and being given choice and control over what you want to purchase. So at the same time that they are arguing local authorities will increasingly use personal budgets to meet disabled people’s desired outcomes they also say more direct services will be provided.
54.The 2,800 group 1 users who may have care and support needs that are defined as moderate or low under local authority assessment criteria, will not continue to receive funding. In practice, this could mean the loss of a carer or personal assistant as currently funded by their ILF award.
This impact is impossible to quantify given the variety of health conditions and disabilities and variations in local provision.
48.The position for Group 2 users is different, as these users are already required to be in receipt of a minimum amount of local authority funding in order to meet the ILF eligibility criteria. For the vast majority of all users this minimum contribution is now £340 a week. The requirement to have this level of local authority funding means that it is reasonable to assume that Group 2 users have support needs that would be defined as ‘substantial ‘ or ‘critical’ under local authority assessment criteria. Yet Local authority funding for around 34 hours care falls far short of the 24 hour support which most Group 2 ILF users need to be able to live independently and take part in the community and other activities.
49.There are a number of existing or planned features within the local authority system which are likely to mitigate the effect of closure of the ILF on the outcomes individual users achieve and, as a result, on the potential impact on their ability to live independently or to exercise control over their lives.
52. In some cases ILF users have indicated that they consider the impact would be severe. It is simply not possible to quantify accurately how the closure of the ILF would impact on individual care and support packages or how any funding cuts would translate into the loss of independence or reduce choice and control over their daily lives.
70.A number of those responding to the consultation expressed fears about having to enter residential care and, as a result, would no longer have any choice around their place of residence. As stated above, the government argue it is simply not possible to quantify to what extent this is likely to be a consequence of closing the ILF.
DWP claim that they closely monitor the impact of changes to policy but have repeatedly said throughout the equality assessment that there is not enough information to say what the outcome of closure of ILF will be. They have failed to take steps to monitor any aspect of the closure of ILF, for example they could have monitored the impact of closing ILF to new applicants from 2010 or to assess the effects of care package cuts on individual ILF users. They could have asked LA’s to produce accurate figures of what they would fund at the joint reviews. This would have given DWP would precise figures of what wouldn’t be funded and illustrated clearly what the impact of closing ILF would be for users. However it seems that DWP did not want this to be known and therefore did not collect this data when they had the opportunity to.
71.Data from the Department of Health shows that the overall number of adults of working age in residential care (in England) is not increasing. The total number of working age people in residential care has been falling since 2008-09, but the proportion of all social care users in residential care has been rising (due to greater falls in the number of people receiving other forms of care). Although there has been no discernible change in the general trends around residential care since the ILF was closed to new users in 2010, this data needs to be treated with caution due to the relatively small number of people who may have been eligible for the ILF (had it not been closed to new users). The data does not therefore necessarily indicate that 2010 changes have not had an effect on trends in residential care.
If the proportion of disabled people receiving social care funding but in residential care is rising overall this is an indication that fewer disabled people are living in the community with the support they need to be included in society and to have choice and control over their lives.
61.A small number of the approximately 2000 plus people who responded to the 2012 consultation on the future of the ILF, and who expressed concern about changes to current care packages, explained how this would affect their lives in practice. Nevertheless, those who did provide further detail explained how they believed this would impact on their ability to live in their own or family home, on their educational or employment status or aspirations, and on their ability to access social or other community-based activities.
62 In addition to those users who expressed fears about having to move into residential care, referenced above after paragraph 40, a number of users stated that with the support of ILF-funded personal assistants they had been able to access higher education and enter employment. Their concern was that they would be unable to continue in higher education or employment if the overall level of support was reduced. As a consequence they would be disadvantaged as the opportunities that had been afforded to them would be reduced.
70.The government say that it is not possible to quantify to what extent disabled people are likely to end up in residential care due to closing the ILF.
63.It is accepted that, with direct payments from the ILF many users have been enabled to access a range of educational, employment and social opportunities. However, the ILF’s primary function is simply to make cash payments to enable them to purchase services, most commonly, the employment of a personal assistant or carer.
64.It is not possible to accurately quantify the impact of closing the ILF on individuals for both Group 2 users and those Group 1 users who meet their local authority’s minimum eligibility criteria. This would involve making speculative or predictive assessments that, for example, compare ILF recipients with other disabled people who do not have ILF support; or comparing what individual ILF users receive now with what they could get from 2015 onwards. In this case onwards only refers to until 2016 when any transitional funding to local authorities will end. This issue as previously stated has been totally ignored and no attempt to address it has been made.
Since ILF has been closed to new users since 2010 why have no attempts been made to collect data which would allow DWP to make some accurate forecast of the impact?
Access to education and Work
68.For disabled people who want to pursue higher education, there are a range of Disabled Student Allowances available. These are payable in addition to other sources of student finance and the amount payable is based on individual needs rather than income. Eligible students can get help with the costs of specialist equipment, non-medical helpers, extra travel costs associated with a person’s disability and a range of other additional costs.
However without the support from ILF none of these DSAs allow a disabled person to undertake study as none of them provide the support needed to meet personal or social care needs.
69.For disabled people with more complex needs which cannot be met by local authorities, there is also a range of specialist disability employment provision, including Access to Work, Work Choice and Residential Training.
Again in the case of Access to Work funding personal needs cannot be met from this funding.
Opportunity to work and study –“Through support from the Independent living Fund I have been enabled to go back to University and to enter employment, firstly through casual work as an “expert by experience” for the Care Quality Commission and to then go on to get my first full-time job in 20 years….. I am worried for the day that my 42 hours funded by the ILF disappear …..(and I am) no longer able to pay for the support I need to lead the meaningful life I currently enjoy thanks to the ILF.”
“I am an active member of the Disabled People’s movement, which includes being co-Chair of the [a local disability equality forum] that advises [local council] on its disability policies and supports local disabled people. I am also a school governor of a local infants school, and I am involved with [local university] in the training of social work students and medical students. I am able to do all this because of the support of the ILF to pay for personal assistance. However, without this funding I would either be trapped in my own home, or worse institutionalised in a care home.”
78.As already discussed in this document while the ILF has allowed users the opportunity to participate in public life, or in any other activity in which participation by disabled people is disproportionately low, and in doing so, inadvertently fostering relationships and helping to combat prejudice and promote understanding, there are a number of other initiatives which are expressly levelled at addressing these criteria. What these are however remains a mystery as the government have misconstrued what Disabled Students Allowance, and Access to Work funding can actually be used for and already said in their equality analysis that when ILF is transferred to local authorities the levels of care and support funding people get will be reduced.
89.The ILF user base is comparatively young when considered in the overall context of the adult care and support system, where 67% of service users are 65 and over, compared to 9% of ILF users. The majority of ILF users are between 26 and 55 (68%).
In the absence of any adequate monitoring of the outcomes for disabled people generally and in particular the absence of any monitoring of outcomes for disabled people unable to access ILF funding since it was closed to new applicants it is interesting to note that the ILF user age range starts at 26 in these figures.
93.DWP is committed to monitoring the impact of all its policies. We will therefore be developing plans for monitoring the actual impact of the closure of the ILF on those groups who share protected characteristics under the Equality Act 2010, and in particular on former users of the ILF and disabled people more generally.
Why haven’t they been monitoring what’s happened from 2010?
Why haven’t they been collecting data from the joint transitional reviews on what Local Authorities would fund after 2016?
What plans do they have to monitor what local authorities do with the devolved ILF funding they get for 2015-16?
Why do they not already have plans in place for monitoring the actual impact rather then their rather wishy-washy “we can’t tell what the impact will be” attitude?
39. A significant number of users did provide more detailed testimony to show how they believed their ability to live independently and to participate fully in society would be compromised.
Examples of ILF user concerns of a loss of independence and control over daily life
“If the ILF were to close completely (he) would lose almost 50% of his care package: He has been scored in the highest funding band on the Local Authority’s Resource Allocation System, but their highest indicative budget would only provide care up to a (limit) for someone living at home. This would mean he could not be looked after at home and would almost certainly need to go into residential care”.
“Before I had ILF my parents who both work full time had to help me with the most basic of tasks (getting undressed, eating dinner, assistance getting to bathroom during the night) making me feel like a burden to my own family. My social life hit a stand still as I was unable to go out and meet friends as I was too unwell to really leave the house.”
“….people like me will end up sitting alone looking out of the window for most of the day unable to even go to the toilet. Until now, despite being severely disabled…..and unable to walk or use my hands or arms, I’ve been able to live a fulfilling life.…. [without the ILF] I will be imprisoned at home, and will even have to give up my dogs…”
“…With no ILF and no ring-fencing of money my son’s budget will either be reduced so much that it no longer adequately covers his needs and he will end up with unacceptably substandard care. Or he will end up having to go into residential care which would also not be acceptable to him.”
“Before I was introduced to the ILF I was looked after by the local authority. I had no life at all, just a horrible existence. I didn’t get out of bed for months at a time. I was not encouraged to take part in life with the children. My care was extremely basic – to be kept clean, fed and medicated”
“Without the ILF funding I would either be left to rot in a home or be dead. My support worker and carers are my lifeline; with this funding I am able to live my life. Should this funding be cut, I can honestly say I would not last long in the community. Obviously should I end up in a home, then the money the government are wanting to save…would have to be paid out for my home fees….”
“ILF allows me to do, as closely as possible, what normal human beings do. I do not do ‘activities’ or ‘access the community’ – I go out for a drive, for a picnic, to visit people, the kind of things ‘real’ people do.”