The government must review its decision to close the Independent Living Fund in 2015 after it was quashed by the Court of Appeal today.
Three judges ruled unanimously that the Department for Work and Pensions had acted unlawfully in taking the decision in December 2012 without complying with its duty to promote equality for disabled people.
The case was brought by five people who are current users of the ILF, which provides cash payments to top-up local authority social care to about 18,500 severely disabled people to enable them to live more independently.
It concerned the government’s plans to close the ILF in April 2015 and devolve its funding to local authorities in England and to the Scottish, Welsh and Northern Irish governments.
The court rejected the claimants’ contention that the DWP’s consultation process into the closure of the ILF, launched last July, was flawed.
However, the judges found that the DWP had failed to fulfil its duty, under section 149 the Equality Act 2010, to have “due regard” to the need to promote equality of opportunity between disabled and non-disabled people in its decision to close the fund.
He found that briefings given to then disability minister Esther McVey by officials did not adequately make clear “the potentially very grave impact” the closure of the ILF could have on service users.
Lord Justice McCombe said responses to the consultation indicated that “independent living might well be put seriously in period for a large number of people” but this was not conveyed to the minister in clear terms.
He also found very little focus on the precise provisions of the Equality Act duty in the DWP’s decision-making. Agreeing with his judgement, Lord Justice Kitchin said: “I do not consider that the minister was given adequate information to enable her properly to assess the practical effect of the proposals on the particular needs of these persons and their ability to live independently.”
In terms of the specific requirements of the Equality Act duty, he added: “There is no evidence she directed her mind to the need to advance equality of opportunity. 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.”
The third judge, Lord Justice Elias, said that while it could be inferred that McVey had appreciated the gravity of the impact of the decision on ILF users, she did not meet her specific duties under the Equality Act.
In response, minister for disabled people Mike Penning said the DWP was “disappointed with certain aspects” of the judgement and would examine it carefully before deciding whether to proceed with closing the fund.
Mike Penning:We’re disappointed with certain aspects of today’s ILF decision. Will examine judgment carefully before deciding on way forward
— DWP Press Office (@dwppressoffice) November 6, 2013
Any fresh decision would require the government to properly assess the impact on the lives of ILF users with regard to the requirements of the equality duty, said the law firms representing the claimants, Scott-Moncrieff & Associates Ltd and Deighton Pierce Glynn. They added that the five claimants wanted the ILF to be retained beyond 2015 and be reopened to new applicants, reversing a decision taken in 2010.
Charity Leonard Cheshire Disability also called for the fund to be retained.
“Without this vital allowance disabled people will be denied the right to remain living in their own homes and to lead independent lives,” said director of corporate affairs Shaun Williams.
The judgement was also welcomed by equality watchdog the Equality and Human Rights Commission, which intervened in the case to provide an interpretation of the section 149 duty.