The Government has successfully defended a judicial review challenge to the process behind its decision to close the Independent Living Fund. Lee Parkhill looks at the ruling and considers the significant issues which closure of the ILF in March 2015 will present to local authorities.
In R (Bracking & Ors) v Secretary of State for Work and Pensions & Anor  EWHC 897 (Admin) Blake J rejected the claimants’ claims that the consultation process in respect of the proposal to close the ILF was defective. The Court also held that that the decision to close the Fund was not reached in breach of the public sector equality duty.
The Independent Living Fund (ILF) provides funding to disabled people to supplement the community care services available to them from local authorities. The fund, which only supports people who have eligible community care needs, has been very popular with the service users it supports and currently funds the care of approximately 20,000 individuals. The ILF is responsible for administering substantial sums of money. In 2010/11 the ILF distributed £359m to individuals so they could purchase additional care services. The ILF will close on 31 March 2015 and the sums it currently distributes will be reallocated to local authorities.
As the Court noted, what is proposed following the closure of the ILF, and the transfer of funding to local authorities, is not the continuation of the same kind of funding that individual beneficiaries of the ILF currently get. Also, the additional money that local authorities will receive following closure of the ILF is not ring fenced to be used to support existing ILF claimants. People in receipt of ILF funds are therefore likely to see changes in the way they are supported once the fund closes and they may no longer be able to receive the services they currently fund with ILF money.
Despite the potential difficulties for individuals who are currently in receipt of ILF funding there are policy reasons in support of closing the scheme. Many had come to regard the ILF as too complex a system, leading to what were, arguably, arbitrary differences in the level of support that people with care needs receive. For example, the ILF has been closed to new applications since June 2010 so anyone who became eligible for community care services since that date is, today, excluded from access to a source of funding which could enhance their lives. The Government hopes that closing the ILF and distributing the money to local authorities, for them to spend through community care services, will achieve greater fairness.
The Government’s Equality Impact Assessment (‘EIA’) compiled in respect of the decision to close the ILF observed that: "There is a potential positive impact for some users of the social care system who are not ILF users as they may get an improved service or level of funding from their local authority due to the greater amount of funding available. The Government believes that any negative impacts are justified by the policy aims of providing greater equity and fairness in the social care system and delivering this funding at a local level in a way which is accountable to local people...."
Implementing the closure of the ILF
However, even if there are sound policy arguments in favour of closing the ILF, and transferring the funding to local authorities to use in a more flexible way, the process of implementing the changes is likely to present significant challenges for local authority social services departments.
As is set out in Blake J’s judgment, the Government’s EIA observed that closure of the ILF would give rise to: "… a potential negative impact on users of the ILF fund although whether there is any actual impact and how great that impact will be is dependent on individual circumstances."
Unfortunately, the task of determining whether there are actual impacts on individuals and, if so, the extent of those impacts, falls to local authorities. Local authorities have the task of determining what community care services people who currently get ILF money will receive following the Fund’s closure in March 2015. It is only at this point that individuals will really appreciate the impact, on them, of the ILF’s closure.
Therefore, while central Government may have succeeded in defending the policy decision to close the Fund, that success marks the start of the challenges for local authorities. Furthermore, central Government’s success in Bracking does not necessarily indicate that implementing the closure of the ILF will be without its problems. In Bracking Blake J expressed some anxiety as to whether the decision maker, in deciding to close the ILF, had due regard to the duty on the state, pursuant to the UN Convention on the Rights of Persons with Disabilities 2006, to facilitate people with disabilities to live independently as far as is reasonably practicable.
In concluding that the Minister had complied with the requirements of the Convention Blake J observed that the Minister was "not making individual decisions on care packages" adding that "in the formation of government policy in this field it is both permissible and necessary to consult, evaluate and decide at a level of generality".
Clearly, when local authorities come to determine the level of community care provision for people following the closure of the ILF (or when local authorities give consideration to ‘protective measures’ (see further below) they are not going to be able to deal with matters in such general terms, and may well face closer scrutiny of their compliance with their legal obligations. Blake J also reminds us that the public sector equality duty is a continuing one and may well need due consideration by the authorities responsible for "developing and implementing" the closure policy.
Protective measures to reduce the impact of the ILF’s closure
In its 18 December 2012 statement ‘the Closure of Independent Living Fund (ILF) and integration into mainstream care and support system’ the Department for Work and Pensions explained that: "The LGA and ADASS in their joint response to this consultation said that local authorities may look to provide some sort of protection for current ILF users but that whether this was done and how it would be undertaken should be matters for the local authorities to decide. The Government concurs with this view. Local authorities must be given the responsibility to fund their core services in accordance with their statutory responsibilities and in line with local priorities."
Recipients of ILF funding will no doubt be keen to know whether their local authority will be looking to provide some ‘protection’ for them following the Fund’s closure. While such protective measures, perhaps just for a finite period, might be regarded as reasonable, authorities will need to think carefully about how the details of such schemes could fit within existing statutory regimes. The intention is that, following closure of the ILF, all those eligible for community care services will receive services determined by the mainstream eligibility criteria. Careful thought may therefore be needed before creating enhanced levels of provision for some, outside of the eligibility criteria, to soften the impact of the ILF’s closure.
Those previously in receipt of ILF funds could be expected to welcome any protective measures which local authorities create, but might seek to challenge any measures which are considered to be insufficient. That said, generous protective measures might themselves be controversial since those who have not previously benefited from the Fund may oppose any local arrangements which continue the provision of enhanced funding for some. It might be said that that such arrangements delay the realisation of the benefits which central Government has referred to, i.e. improved services, or increases levels of funding, for all due to the greater amount of funding available to social services.
There is clearly scope for local authorities to take decisions which reflect local needs and priorities but what is essential is that authorities have in place a plan for managing the withdrawal of the ILF and have reached rational decisions in respect of these matters.
Even if authorities choose not to formally create protective measures to manage the loss of ILF funding authorities will still need to carefully manage the process of assessing people who are about to lose ILF funding. Such individuals, who may be facing the loss of significant elements of support, may be particularly keen to challenge their community care assessments and care plans. While litigation is usually not an appropriate mechanism to challenge community care assessments authorities might need to prepare for increased numbers of people challenging assessments via the complaints process.
Planning for March 2015
Planning for the withdrawal of ILF funding from individuals is not a task to be left for late 2014/early 2015; authorities can expect to receive requests for guidance from individuals now. In March 2013 the ILF published a guidance leaflet for service users: ‘ILF transfer review programme, Supporting you with the transfer of your care and support.’ The documents sets out a six stage process for ‘transferring’ care arrangements to local authorities by the end of March 2015. The process includes a ‘transfer review visit’ which will see an ILF assessor visiting each service user who is currently in receipt of ILF funding. The ILF’s leaflet explains that it will invite local authorities to attend these meetings with service users. The ILF will be arranging transfer review visits from now, so local authority social workers can expect to receive invitations in the very near future.
The ILF’s Transfer Review Programme leaflet informs service users that the local authority social worker attending the transfer review visit will be there to talk about issues that may arise when ILF payments stop. The leaflet goes on to add that the visits will give individuals an opportunity to talk to their social worker about how the local authority will assess eligible support needs following the closure of the ILF and how changes to their support will be managed. Therefore local authorities need to, today, have answers to those questions.
Local authorities should look out for the ‘Code of Practice’ on the closure of the ILF which the Government has said it will publish. The Code should provide guidance to local authorities on how current ILF users can be supported through the transition. While it is hoped that this will provide useful guidance to local authorities it is clear that there will still be lots of work for individual authorities to do to prepare for this significant change in the funding of social care. If the transfer process is not carefully managed, or if the intended Code of Practice does not adequately address the various issues, there could again be disputes as to whether duties such as the public sector equality duty are being met. Local authorities, which will be closely involved in managing the impact of the ILF’s closure, will need to ensure that they plan in order to avoid such disputes.