Disabled people win bid to protect Independent Living Fund

Court of Appeal decision described as being 'of major importance for all disabled people'

Five disabled people have won their Court of Appeal bid to overturn the Government's decision to abolish the Independent Living Fund (ILF).

The ILF currently provides support enabling nearly 20,000 severely disabled people in the UK to live independent lives in the community.

The appeal by the five was against a High Court ruling by Mr Justice Blake in April that the closure decision was lawful.

The five argued that the High Court had gone wrong in law and there was a lack of proper consultation before the closure decision was taken on December 18 2012.

Appeal judges Lord Justice Elias, Lord Justice Kitchin and Lord Justice McCombe allowed the challenge and quashed the December 18 decision.

Lord Justice McCombe said the evidence upon which the decision was based did not give "an adequate flavour of the responses received indicating that independent living might well be put seriously in peril for a large number of people".

Welcoming the "powerful" ruling, law firms Deighton Pierce-Glynn and Scott-Moncrieff & Associates, which represented the claimants, said their clients had "feared that the loss of their ILF support would threaten their right to live with dignity, and that they could be forced into residential care or lose their ability to work and participate in everyday activities on an equal footing with other people".

The Court of Appeal decision was described as being "of major importance not just for the claimants, but for all disabled people".

In a statement, the law firms said: "It remains to be seen whether the Government will seek to revisit the idea of closing the fund. However, it confirmed in the course of the proceedings that any preparatory steps were at an early stage and could be reversed if necessary.

"Any fresh decision would require the Government to go back to the drawing board and to take into account the wealth of concerns raised by disabled people and by local authorities about the proposal to close the fund.

"Any new decision must be taken with proper attention to the Government's legal obligations to take account of the impact on disabled people and to consider alternatives that would avoid that impact."

Jenny Hurst, 41, a service user from Greenwich, south-east London, who waited in the rain in her wheelchair outside the Royal Courts of Justice, said after being told the outcome of the appeal: "I am absolutely delighted.

"I was sick with worry waiting for the result and now it is a huge relief to have got over this first hurdle. There is more to go but we have got over this first hurdle, which is fantastic."

The ruling was a victory for five fund users, including Gabriel Pepper, from Walthamstow, east London. He accused the Government of imposing "appalling cuts" which were "a vicious attack on the disabled".

The other applicants are Stuart Bracking, Paris L'amour, Anne Pridmore and John Aspinall, who brought his case with his mother, Evonne Taylforth, acting as his litigation friend.

They are among fund-users who currently receive money from the £359 million ILF. The average payout is £300 a week per recipient.

The money enables them to employ personal assistants to help them with their personal needs and, they say, to "go out and have a full life".

The appeal judges unanimously found the Government breached its public sector equality duty (PSED) to properly assess the effect of the fund's closure on the disabled, as required under the Equality Act 2010.

The judges were told that loss of the fund could make it impossible for many disabled people to continue to live independent lives and, in many cases, it would affect their ability to work.

David Wolfe QC, appearing for the five, successfully argued that documents presented to the minister for disabled people, Esther McVey, with very few exceptions, did not give a true flavour of the impact of closure of the fund on the ability of users to live independent lives and "represented a failure by officials to inform the minister of the true level of the threat".

Lord Justice McCombe agreed and said: "In the end, drawing together the principles and the rival arguments, it seems to me that the 2010 Act imposes a heavy burden upon public authorities in discharging the PSED and in ensuring there is evidence available, if necessary, to demonstrate that discharge.

"It seems to have been the intention of Parliament that these considerations of equality of opportunity - where they arise - are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude."

The PSED must be exercised "with rigour and an open mind", said the judge.

But in the case of the five there was "simply not the evidence" to demonstrate to the court "that a focused regard was had to the potentially very grave impact upon individuals in this group of disabled persons, within the context of a consideration of the statutory requirements for disabled people as a whole".

The judge said: "It seems to me that what was put before the minister did not give to her an adequate flavour of the responses received indicating that independent living might well be put seriously in peril for a large number of people."

Lord Justice Elias agreed, saying: "Any government, particularly in a time of austerity, is obliged to take invidious decisions which may exceptionally bear harshly on some of the most disadvantaged in society.

"The PSED does not curb government's powers to take such decisions, but it does require government to confront the anticipated consequences in a conscientious and deliberate way insofar as they impact upon the equality objectives (of the Equality Act)."

The appeal judge said there was "considerable force" in Mr Wolfe's argument that the documents placed before the minister "painted what he characterised as a Panglossian view" of closing the fund.

When he dismissed the case in the High Court, Mr Justice Blake described fund recipients as "a privileged group" as the ILF, which the Government wants to scrap in 2015, had been closed to future users since 2010.

He said nothing had persuaded him "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 it was "reasonably clear" from the consultation that future funding for disabled people would be by local authorities.

Ministerial statements suggested due regard had been given "to the duty of the state to facilitate people with disabilities to live independently as far as reasonably practical".

But today the appeal judges ruled he had got the law wrong and quashed his decision.

PA