Following an
application for Judicial Review of the decision to close the Independent Living
Fund, the High Court has ruled that the Government carried
out an adequate consultation and had not breached the public sector equality
duty. The applicants are appealing –
Disabled People Against the Cuts has full information about all of this here.
The High Court
judgement does appear, however, to lay down a marker to the government as to
under what circumstances it would be in danger of failing to meet its Public
Sector Equality Duty. The judge recognised
that ILF users will be “significantly disadvantaged” if they have to rely
solely on existing local authority provision. He went further and said that
something more is expected of government in order to protect ILF users and, in
particular, to fulfill the government’s obligations under the UN Convention of
the Rights of Disabled People.
He stated that if the
forthcoming legislation on social care, or the Code of Guidance on transferring
responsibility for ILF users to local authorities, “does not arrive in time or
turns out to be too anaemic in content to enable the Convention principles to
be brought to bear in individual cases”, then there would need to be
re-consideration as to whether the Public Sector Equality Duty had been
fulfilled. He also said that this would
also be the case “if the level of Treasury funding for disabled people
generally or for this class of ILF users in transition back to [local authority
provision] in particular is so austere as to leave no option but to reverse progress already achieved in independent living”.
While it is
disappointing that the application relating to closure of the ILF was refused,
the judgement does seem to contain a clear warning to government that it could
be subject to successful legal challenge if there is evidence of a reversal of
the progress achieved in recent years towards independent living for disabled
people.
Before the ILF was closed to new applicants
in December 2010, its funding was available to disabled people (between the ages of 16 and 64) with the highest level of
support needs. From its messy origins it
had evolved into a highly efficient and very much valued source of funding (by
both local authorities and disabled people) for the small proportion of people
who need more support than the average user of social care services. In order to qualify for support people had to
be in receipt of the highest rate care component of Disability Living Allowance
and to have support needs which were in addition to the level of funding
available from their local authority. These
are people who, in previous generations, were consigned to institutional
care.
The largest group of ILF users (almost a third) are people with “severe
learning disabilities” and around 6 in 10 have some form of learning
disability. According to the ILF, about
one third are using their ILF grant to enable them to live in supported
accommodation often with 24 hour care.
The ILF told the Dilnot Commission that
“Many of these people
have previously lived in residential care or long stay hospitals….Local
authority representatives have
told us that supported
living placements for this group are becoming harder to finance since the ILF stopped
accepting applications.”
Local authorities are
facing a funding crisis and were clear, in their response to the government’s
consultation on closure of the ILF that they would not be able to support
people at the same level that the ILF had. There seems to be a
general acceptance – within central and local government alike - that this may
well lead to some people having to live in institutional rather than community
settings.
For others, while they may
continue to be able to live in their own homes, there is an assumption that,
although ILF funding enabled them to do things that non-disabled people take
for granted such as engage in voluntary or paid work, leisure and education
activities, local authority funding is only likely to be available for basic
needs, such as help with getting up and going to bed, going to the toilet, and
so on. Whether people have to move into
institutional care, or experience ‘institutionalisation in the community’ it would
reverse a trend towards independent living which has been evident since the
1960s.
Documents disclosed to
the Court during the Judicial Review reveal that Esther McVey, Minister for
Disabled People, asked her officials for information on how ILF users might be
‘protected’ after 2015. Officials
responded that the Treasury would not be sympathetic to a DWP bid to maintain
funding and that the only course open to the Department was to develop a Code
of Guidance on how independent living outcomes could be maintained once people
are transferred to local authority funding.
However, as it was made clear that transitional funding was only going
to be available for the financial year 2015/16 and it is very likely that people’s
support will be reduced after that.
It’s difficult to see
how progress on independent living will not be reversed in these
circumstances.
We need to document
what happens, not only to people who currently use ILF funding but also those
who would previously have been able to apply for it. And challenge the government if there is
evidence that people with high support needs are not being able to choose where
and with whom they live, and do not receive support to enable them to
participate in work, voluntary or leisure activities and in family and
community life.
Perhaps now is the time to start thinking about how we gather such evidence.
