High Court rejects judicial review challenge to Independent Living Fund closure

The High Court has rejected a judicial review challenge to the Government’s decision to close the Independent Living Fund.

However, the five service-user claimants – advised by law firms Deighton Pierce Glynn and Scott-Moncrieff & Associates – immediately announced plans to take the case to the Court of Appeal.

The Department for Work & Pensions plans to close the ILF, which supports 20,000 severely-disabled people, in March 2015. The fund was closed to new applicants in 2010.

The claimants believe that, without support from the ILF, they would be forced to rely on local authority adult care services at a time when funding of those services is being cut.

This could seem them forced into residential care or unable to leave their homes, their lawyers said.

Deighton Pierce Glynn and Scott-Moncrieff & Associates argued that the DWP had failed to provide sufficient information during the consultation process to enable consultees to respond in a meaningful way.

They also claimed that information that came to light during the case showed that the Department had not been open and candid in its approach.

However, in Bracking & Ors, R (on the application of) v Secretary of State for Work and Pensions & Anor [2013] EWHC 897 Mr Justice Blake rejected these claims.

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

• “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.
• “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.”

Mr Justice Blake added: “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.”

The judge said he considered the head of challenge of a breach of the public sector equality duty as “considerably more formidable”.

He added: “It is obvious that the existing users of the fund would be significantly disadvantaged by its closure if devolution simply meant that henceforth they would have to rely exclusively on local authority funding under the statutory scheme, even if the new scheme adopted some of the features pioneered by the ILF: such as direct payment, personal budgeting and portability when the user changed addresses between local authorities as the White Paper suggested it would.”

However, Mr Justice Blake again ruled in favour of the DWP. He said: “Despite the criticisms and other observations made by the claimants and the intervener as to aspects of the decision-making process and some anxiety prompted by some of the language deployed in the way this decision was presented to the public, the defendant has satisfied me that the relevant statutory duty was brought to the decision-maker's personal attention and sufficient regard was had to the relevant elements engaged by the proposal.”

He added that he was satisfied that on the evidence the Minister for Disabled People was “personally engaged with the process and would not agree the policy until she had sought and obtained some assurances from the Department of Health and others that a Code of Guidance would be introduced to address problems in transition from ILF funding to local authority statutory criteria”.

In a statement, Deighton Pierce Glynn and Scott-Moncrieff & Associates said: “In its ruling, the court did not explain how it reached the conclusion that the minister had met the statutory duty in the specific way required.



“The claimants therefore intend to pursue their appeal on the basis that the judge’s conclusions did not reflect the evidence before the court and that the reasons for ruling that the process was lawful were not properly set out. All five are adamant that the process was flawed and that the impact of closure will be devastating for very large numbers of severely-disabled people.”

The firm added: “They see it as vital that the decision is quashed and the matter reconsidered on a fair and lawful basis.”