Scrapping the Independent Living Fund, consultation and the PSED

Jonathan Auburn and Benjamin Tankel look at the consultation and public sector equality duty issues raised in a challenge to the closure of the Independent Living Fund.

The Independent Living Fund (ILF) was a central government agency established exactly 25 years ago to provide money to help disabled people live independently in the community rather than in residential care.

The ILF issued grants which could be used to employ a carer or personal assistant to provide personal and domestic care, or to pay a care agency to provide personal care and help with domestic duties, all with a view to helping people avoid having to go into residential care. It was most important to people with severe disabilities, for which local authority community care provision may not be sufficient to enable them to live independently in the community.

The current government wished to abolish this agency altogether. A judicial review challenge was brought alleging flawed consultation and breach of public sector equality duties.

Held

In R (Bracking) v Secretary of State for Work and Pensions [2013] EWHC 897 (Admin) the Court dismissed both grounds of challenge. On the public sector equality duties challenge, the Court was satisfied that the Minister had been personally engaged and had taken steps to address some of the transitional problems through guidance. The analysis of consultation submissions had been rigorous. A draft EIA had been published, as well as a final EIA published with the decision.

On the consultation challenge, although there was no statutory duty to consult, a duty arose on the Coughlan principle that if consultation is embarked upon, it must be carried out lawfully. The consultation here was not rendered unlawful by the fact that there was information known to the Department that was not included in the consultation material.

Analysis

The purpose of the ILF was to aid independent living. While it is not surprising that a programme such as the ILF has fallen victim to austerity cuts, the focus of this cut was deeply unfortunate, and draws attention to the difficult legal issue of the nature of legal protection afforded to a disabled person’s interest in living independently.

In 2009 the UK ratified the UN Convention on the Rights of Persons with Disabilities (UNCRPD). Article 19 of the Convention provides for a right to independent living and inclusion in the community. The extent to which the UNCRPD can be used as an interpretive reference point for arguments advanced under the ECHR has not yet been determined: see the recent case of R (NM) v LB Islington, where Sales J stated that it was not clear whether the UNCRPD could be used to inform ECHR rights; also note Burnip v SSWP and AH v West London Mental Health Trust.

If the closure of the ILF leads to greater strain on the ability of disabled people to live independently, expect to see more attempts to use the UNCRPD, and particularly Article 19, in domestic legal challenges.

The decision on the public sector equality duty challenge in this case highlights the difficulty in running such arguments now. In the early days of public sector equality duty challenges, many challenges succeeded because no EIA was done. In this case there was a draft EIA, an interim analysis during the consultation process, and a final EIA. Courts have been far less willing to uphold such challenges where significant EIAs have been done.

However in this case the material before the Minister was limited and it is difficult to see how that material was sufficient to support the giving of anxious consideration to the very weighty impacts on protected groups, particularly the disabled.

The claimant has applied for permission to appeal. If this is granted it will be interesting to see how the Court of Appeal deals with the public sector equality duty issue, and in particular the nature of the information before the decision-maker which it uses to discharge its public sector equality duties.

Jonathan Auburn and Benjamin Tankel are barristers at 39 Essex Street.