Claimants lose challenge to retaken decision to shut Independent Living Fund

Two severely disabled claimants have lost a judicial review challenge to the Government’s retaken decision to close the Independent Living Fund (ILF).

The first decision taken by the then Minister for Disabled People, Esther McVey, on 18 December 2012 was quashed by the Court of Appeal.

This was on the basis that what was put before the minister did not give her an “adequate flavour” of the responses received from the consultation indicating that independent living might be put at risk by the closure of the ILF. There had been a failure to have due regard to the specific requirements under the Equality Act 2010.

McVey’s successor as minister, Mike Penning, re-took the decision on 6 March 2014 and also came to the conclusion that the fund – which provides support and funding to 17,000 disabled people – should be closed, with effect from 30 June 2015.

This will see funding transferred to local authorities in England and the devolved administrations in Scotland and Wales.

The claimants sought to challenge the retaken decision in Aspinall, Pepper and Ors, R (on the application of) v Secretary of State for Work And Pensions & Anor [2014] EWHC 4134 (Admin).

They argued that the minister had again not been given adequate information to assess properly the effect of the closure.

However, Mrs Justice Andrews rejected the claim, saying there had been no breach of the public sector equality duty this time.

The High Court judge suggested that – as Elias LJ had said in the Court of Appeal in the first judicial review – the issue was whether “the Minister was sufficiently aware of the very real adverse consequences which closing the fund would have on the lives of many of the more disabled."

She said: “In my judgment, on the evidence before the court on this occasion, this particular Minister was very well aware of those consequences and of the practical effect that closure of the fund and the consequential reduction in funding provided through LA support was going to have on the ability of many ILF users to live independent lives, including (but not limited to) living in their own homes.

“He did not need to know precisely how many of them were likely to be affected or to carry out a quantitative assessment of the impact. It sufficed that he knew, as he did, that the impact would be substantial and significant.”

The judge continued: “Had the Court of Appeal in Bracking (No 1) [the first judicial review] been faced with the evidence that this court has seen, I have no doubt that the majority decision on this issue would have been different and that Elias LJ's conclusions would have been reinforced. This time, the issue does not depend on the drawing of inferences but on clear and cogent evidence that demonstrates that the Minister discharged his duty.”

The claimants’ lawyers, Scott-Moncrieff & Associates and Deighton Pierce Glynn, said their clients feared that loss of ILF support would threaten their right to live with dignity, and they might be forced into residential care or lose their ability to participate in work and everyday activities on an equal footing with other people.

The barriers to independent living and working faced by the most severely disabled people “were not adequately addressed by council provision with its focus on meeting basic needs”.