Whether ILF consultation was lawful

The Court of Appeal overturned a High Court ruling that the Government's consultation over the closure of the ILF was not defective in law.

6 November 2013

the consultation
the high court decision
the court of appeal decision

The consultation

This consultation, published July 2012, sought views on the decision to close the ILF in 2015 and the impact of devolving funding for former users to local authorities.

At the same time as the consultation on the ILF was launched the Secretary of State for Health issued a White Paper "Caring For Our Future: Reforming Care and Support". The White Paper had two core principles:

  1. To prevent, postpone and minimise people's need for formal care and support. The system should be built around the simple notion of promoting peoples independence and well-being.
  2. People should be in control of their own care and support – including the right to personal budgets and direct payments.

The White Paper also proposed a national minimum eligibility threshold, which many thought could undermine independent living because it would reduce those eligible for help, including former users of the ILF scheme. So, it was argued that the DWP had presented the decision to close the ILF as being purely about reform and streamlining funding when it was actually about cutting the funds available to support disabled people. If true this should have been made clear in the consultation.

The consultation also asked for views on how the closure could be managed in a way which would minimise disruption to the care and support needs of existing ILF users. The fund was already permanently closed to new users.

Following the closure of the consultation in 12 October 2012 the Government decided to go ahead with its plans for the closure of the fund. Disability Rights UK responded to the consultation and issued a statement following news of the closure.

The High Court decision

A judicial review was heard by the High Court as Bracking & Ors, R (on the application of) v Secretary of State for Work and Pensions & Anor [2013] EWHC 897. The review considered whether the Government consultation on the closure of the Independent Living Fund (ILF) was defective.

During the Judicial review Mr Wolfe QC submitted that the consultation process engaged in before the December 2012 decision was made was defective principally because:

"i) Inadequate information had been given as to what was understood by devolution of the fund to enable consultees to make an effective response and in particular provide sufficient data to inform the PSED.

ii) In particular it was not explained what devolution meant, namely whether local authorities were to exercise the same discretion to distribute funds allocated for this purpose as the ILF Trustees had had or by contrast whether it was proposed that the fund and its complementary funding stream would be abolished and replaced with a revised statutory duty to fund Category 2 needs and above.

iii) The consultation had not been undertaken with complete candour; thus the Department's assessment of the costs of closing the fund had not been disclosed and neither had the fact that discussions had been continuing for some time with the Local Government Association who regarded the ILF as an anomaly and were strongly in favour of the proposals to abolish it.

iv) The consultation was based on provisions in a draft Bill reflecting in the White Paper whereas the enactment of this legislation could not be assumed.

v) There has been no discussion of alternative options revealed in the Ministerial briefing papers of deferring closure until 2016 or beyond"

Judge Blake held that the DWP’s consultation on the closure had been lawful. Amongst other things, he concluded that:

"34. I am not satisfied that the consultation was flawed as contended above or elsewhere in the submissions advanced.

35. The central question in this consultation was the impact on the existing 20,000 service users of the intended closure of the fund in 2015. The future of the ILF had been a matter of open discussion for some years, and since 2010 it was well known that it was closed to future users. The class of existing users was thus, by comparison with new potential users with similar needs who could not access the fund, a privileged group.

36. In my judgment:-

i) It was lawful for the decision-maker to proceed on one option alone and to make policy on the basis of the DH legislation that was planned to proceed in the intervening period.

ii) Taken along with the White Paper, as well as previous public statements made about the future of the ILF, it was reasonably clear from the consultation that future funding for disabled people would be by local authorities applying the FACS scheme, albeit with a duty to support needs at Category 2 and above.

iii) There was no need to produce an EIA before the consultation was undertaken, and indeed one purpose of the consultation was to provide material to inform the EIA. Many of the 2000 respondents to the consultation were able to explain what the impact of the proposals would be for themselves, albeit without being able to state precisely what level of local authority support would be forthcoming.

iv) The claimants' letter before claim demonstrated that they understood the potential implications and were able to respond with examples of the kind of threat to independent living that the closure of the ILF might have.

v) Similar points were made by the ILF itself in response to the DH (see paragraph 41 below).

vi) Consultation was only one source of input to government decision making, and the impact of the PSED was only one of a number of factors to be eventually assessed by the decision maker.

vii) It is lawful for government to develop parallel lines of inquiry before, during or after a consultation of this sort.

37. Although there was information known to the DWP that was not in the consultation, none of the examples of absent data identified in the course of the argument persuaded me that this consultation was other than candid and open, having regard to what it was: a desire to know the consequences of a provisional decision to close the ILF."

Judge Blake did however consider that a challenge that the consultation was a breach of the public sector equality duty (PSED ) was “considerably more formidable”.

“If the intended legislative reform set out in the White Paper is stalled or diluted, if the intended Code of Guidance to ease transition does not arrive in time or turns out to be too anaemic in content to enable the Convention principles to be brought to bear in individual cases, the application of the PSED may need to be revisited in the light of these developments. Similarly, this will need to be the case if the level of Treasury funding for disabled people generally or for this class of ILF users in transition back to the statutory scheme in particular is so austere as to leave no option but to reverse progress already achieved in independent living.”

The Court of Appeal decision

The Court of Appeal overturned the judgment of the High Court. The case was heard as Stuart Bracking & Ors v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 (06 November 2013).

The appellants made four arguments:

  1. The respondent failed, in making the decision, to close the fund lawfully in order to discharge the public sector equality duty imposed under section 149 of the Equality Act 2010 ("the PSED")
  2. The consultation which preceded the decision was inadequate
  3. The decision was based unlawfully upon the assumption that proposals in a Government White Paper, "Caring for the Future, reforming care and support" and draft Social Care Bill would pass into law
  4. That the High Court Judge in dismissing such arguments failed to give adequate reasons for his decision

All of the arguments were dismissed except for the first one concerning the PSED. Under section 149 of the Equality Act a public authority must, in the exercise of its functions, have due regard to the need to:

  • eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
  • advance equality of opportunity between persons who share a 'relevant protected characteristic' and persons who do not share it;
  • foster good relations between persons who share a relevant protected characteristic and persons who do not share it

The 'relevant protected characteristic's are age, disability, gender reassignment, pregnancy/maternity, race, religion or belief, sex and sexual orientation.

The three judges were all in agreement that the PSED was not met in the consultation.

“60. In the end, drawing together the principles and the rival arguments, it seems to me that the 2010 Act imposes a heavy burden upon public authorities in discharging the PSED and in ensuring that there is evidence available, if necessary, to demonstrate that discharge. It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude.

61. It is for this reason that advance consideration has to be given to these issues and they have to be an integral part of the mechanisms of government, to paraphrase slightly the words of Arden LJ in the Elias case. There is a need for a "conscious approach" and the duty must be exercised "in substance, with rigour and with an open mind" (per Aikens LJ in Brown). In the absence of evidence of a "structured attempt to focus upon the details of equality issues" (per my Lord, Elias LJ in Hurley & Moore) a decision maker is likely to be in difficulties if his or her subsequent decision is challenged.

62. In this case, I have come to the conclusion (admittedly with some reluctance) that too much of the Respondent's case depends upon the inferences that Ms Busch [acting for the respondent] invites us to draw from the facts as a whole rather than upon hard evidence. In my view, there is simply not the evidence, merely in the circumstance of the Minister's position as a Minister for Disabled People and the sketchy references to the impact on ILF fund users by way of possible cuts in the care packages in some cases, to demonstrate to the court that a focussed regard was had to the potentially very grave impact upon individuals in this group of disabled persons, within the context of a consideration of the statutory requirements for disabled people as a whole.

63. 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 McCombe]

In agreeing with this opinion Lord Justice Elias stated:

“74. Any government, particularly in a time of austerity, is obliged to take invidious decisions which may exceptionally bear harshly on some of the most disadvantaged in society. The PSED does not curb government's powers to take such decisions, but it does require government to confront the anticipated consequences in a conscientious and deliberate way in so far as they impact upon the equality objectives for those with the characteristics identified in section 149(7) of the Equality Act 2010.”

You can view a press release by Deighton Pierce-Glynn and Scott-Moncrieff & Associates, who took the case, here. It also has a link to the BBC report of the case.

Government Equality Assessment of the closure of the ILF

Following the judgment, the Government carried out an  Equality Impact Assessment but announced that the the Fund will close from 30 June 2015. You can read DR UK's statement on the closure announcement.