A judicial review has been launched to challenge the Department of Work and Pensions (DWP) consultation on closing the Independent Living Fund (ILF). Six disabled claimants who receive support from the ILF have started judicial review proceedings to challenge the consultation, which closed on 12 October.
The ILF is a body of the DWP but under the management of independent trustees. Since it was created in 1988 it has helped many thousands of disabled people to live independent lives. It has targeted support at the most severely disabled people in the UK who face the greatest barriers to independent living, enabling them to remain living in the community rather than in residential care, to work, and play an active part in their community as full citizens. In 2010 the fund was closed to new applicants because the government had reduced the amount of money it gave to the fund. It is now proposing that the fund close completely in 2015, leaving users to rely on local authority adult care services. This is at a time when the funding for local authorities is being dramatically reduced and many authorities are cutting services for disabled people.
The basis of the challenge is that the consultation does not comply with the basic legal requirements:
- The government has failed to explain why it is only considering closing the fund, rather than other options, such as continuing the fund and re-opening it to young adults who want to live independent lives.
- It does not give enough information about the difference between local authority assessment and provision and the ILF. Local authority services focus on basic needs whereas the ILF is about enabling people to be independent, to work and be full citizens;
- The government has failed to undertake any assessment of the way disabled people will be affected by the proposals, in breach of their legal duties under the Equality Act 2010.
The claimants are asking the court to make a declaration that the consultation is unlawful and that any decision that is based on the consultation is unlawful. The DWP have until October 30th to put forward its defence. The claimants may also have to ask the court to make an order that the DWP holds off on taking a final decision about the closure of ILF until after the case has been heard.
As the consultation closed, numerous responses were logged that showed a very high level of opposition to the proposal – for example a survey by Disability Rights UK recorded 86% of respondents disagreeing with the proposed closure of ILF. Disability Wales & Diverse Cymru have produced a joint response robustly opposing the plans; Capability Scotland also confirmed that they strongly oppose the closure of ILF.
In addition the response to the consultation from the Association of Directors of Adult Social Services (ADASS) and the Local Government Association (LGA) made it clear that they anticipate disabled people being worse off if ILF closes. They said: ‘As ILF recipients transfer into the LA [local authority] system in 2015, and are subsequently reviewed against the FACS [fair access to care services] criteria, the value of the personal budget calculated through the Resource Allocation System (RAS) will generally be at a lower level than the initial ILF/LA budget.’ Thus it appears inevitable that disabled people will be much worse off if the proposed closure goes ahead, and the tone of the ADASS/LGA response suggest they consider the outcome of the consultation a foregone conclusion: that ILF will close and the funding will be dealt with by local authorities under the existing FACS system.
Of very grave concern to ILF recipients facing the loss of such vital funding that ensures their independence, is the increasing move by local authorities to putting a cap on the home care that they will pay for: councils are setting the cap at the cost of care in a residential home. If someone’s care at home costs more than it would cost in a residential setting, the council will only pay up to the level of the latter and the disabled person will be left with the choice of inadequate care at home – which in some situations can be life-threatening – or being forced into residential care. This is obviously no choice at all and will rob many disabled people of their hard-won independence and their right to live where and how they choose.
This also flies in the face of the government’s apparent commitment to the principles of the UN Convention on the Rights of Persons with Disabilities. Article 19 sets out the right to independent living. There can be no surer way of denying people this right than by taking away the money that enables them to live independently and this is the reality of the proposed closure of ILF.
The claimants in the case are being represented by Deighton Pierce Glynn Solicitors, and Scott-Moncrieff & Associates. Updates on the litigation are available on the Disabled People Against Cuts website HERE.
Louise is a partner at Deighton Pierce Glynn. She previously worked at the Public Law Project (PLP), the leading public law NGO. Louise trained and qualified at Hodge Jones & Allen solicitors.