R (on the application of Aspinall, Pepper and Others) (Formerly Including Bracking) v Secretary of State for Work and Pensions The Equality and Human Rights Commission (Intervener)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 08 December 2014 |
| Neutral Citation | [2014] EWHC 4134 (Admin) |
| Docket Number | Case No: CO/2629/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 December 2014 |
[2014] EWHC 4134 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Andrews DBE
Case No: CO/2629/2014
and
David Wolfe QC (instructed by Deighton Pierce Glynn) for the Claimants
Martin Chamberlain QC and Katherine Apps (instructed by the Treasury Solicitor) for the Defendant
Helen Mountfield QC (instructed by The Equality and Human Rights Commission) for the Intervener
Hearing date: 22 October 2014
This is a claim for judicial review of the decision by the Minister for Disabled People made on 6 March 2014 to close the Independent Living Fund ("ILF") with effect from 30 June 2015, and to transfer funding to the devolved administrations in Scotland and Wales, and to local authorities in England. The Claimants are severely disabled people who are current users of the ILF.
This is the second time that a decision of this nature has been taken. The first decision, taken by the current Minister's predecessor on 18 December 2012, was successfully challenged in judicial review proceedings brought by these claimants and three others, including Stuart Bracking, and was quashed by the Court of Appeal. Mr Bracking was originally a claimant in these proceedings too, but he has had to withdraw for reasons wholly unconnected with the merits of the claim. I mention him only because the earlier judicial review proceedings ( R (Stuart Bracking and others) v Secretary of State for Work and Pensions) have been referred to in argument before me as " Bracking (No. 1)". For ease of reference, I propose to do the same in this judgment.
The nature of the ILF and the background to the original decision to close it is set out at some length in Blake J's judgment in Bracking (No. 1) [2013] EWHC 897 (Admin) at [2]–[23] and summarised in McCombe LJ's judgment in the same case in the Court of Appeal [2013] EWCA (Civ) 1345 at [5] and [6]. I need not set out those facts again here. For present purposes it suffices to say that the ILF is a non-departmental public body operating an independent discretionary trust that is funded in its entirety by the Department for Work and Pensions ("DWP"), and managed by a Board of Trustees. The ILF was originally set up in 1988 and ran until 1993 as a charitable trust. In 1993 the original fund was closed to new applications and a new fund was created. The two funds ran in parallel until they were amalgamated under a new trust deed in 2007.
The aim of the ILF, as its name suggests, is to support independent living and combat social exclusion on the grounds of disability. Payments from the ILF are made to enable users to live independently, work, study, and engage in social and recreational activities that it would be otherwise difficult or impossible for them to manage. Such payments help to finance the provision of personal assistants. Receipts from the ILF are typically in the range of £450-£500 per week.
Since the ILF was introduced, there have been substantial changes to the social care landscape. Since the Health and Social Care Act 2001, Local Authorities have been under a statutory duty to offer a direct payment to any person eligible for community care services. The use of personal budgets has become common and the right to a personal budget (which was a key feature of the ILF) has now become enshrined in the Care Act 2014 for all users of the adult social care system in England.
At present, around 18,000 severely disabled people living in 210 different local authorities in England, Wales and Scotland receive payments from the ILF. 55% of all ILF users are concentrated in a quarter of those authorities. The figure of 18,000 can be compared with the approximately 1.3 million users of the adult social care system in England alone. "Group 1", that is, ILF users who applied under the pre-1993 scheme, comprises around 2,600 people. Many (but not all) of them also receive some support from their Local Authority ("LA"), but their eligibility for ILF support does not depend on the existence or amount of such support. By contrast, the eligibility of the "Group 2" users, who joined the ILF on or after 1 April 1993, depends upon their receiving care packages of a minimum value from their LA. For the majority of Group 2 users, this is £340 per week. The Claimants fall within this group. 94% of all ILF users receive a contribution to their care and support from the LA.
A decision to close the ILF to new applicants on a temporary basis was taken by the ILF Trustees in June 2010. In December 2010 the Government announced the permanent closure of the fund to new applicants, thereby limiting the constituency of users to a group whose numbers would inevitably diminish over time. At the time of that announcement a Ministerial Statement was issued indicating that the existing arrangements for the fund were considered to be financially unsustainable, and that a consultation would follow, aimed at finding out how to develop a new model for future funding of care and support. The consultation was eventually launched in July 2012, simultaneously with the issue of a White Paper proposing wider reforms of the care system.
The explanation given in the consultation paper for the proposal to close the ILF in 2015 was the wish of the Government to achieve an integrated statutory care system, and to avoid what it then perceived as duplication of function and unnecessary bureaucracy. The consultation paper asked questions about the impact that such a closure would have on existing users and on Local Authorities, and about how best to manage the transition. The five questions that were asked are set out in McCombe LJ's judgment in Bracking (No 1) [2013] EWCA Civ 1345 at [11].
One of the grounds of challenge in Bracking (No. 1) was that the consultation process was inadequate. Both Blake J and the Court of Appeal rejected that ground, see [2013] EWCA Civ 1345 at [27]–[34]. The overwhelming majority of the responses came from current users of the ILF. McCombe LJ observed at [29] that " as can be seen from the consultation responses actually received, respondents were well able to state clearly and fully their fears for the adverse impact on them from the closure of the ILF."
The ground of challenge which did succeed was that there had been an unlawful failure to comply with the public sector equality duty ("PSED") imposed by s.149 of the Equality Act 2010 ("the 2010 Act").
The PSED
Section 149 of the 2010 Act provides that:
"(1) A public authority must, in the exercise of its functions, have due regard to the need to —
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it;
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to-
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to-
(a) tackle prejudice, and
(b) promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are—
age;
disability;
gender reassignment;
pregnancy and maternity;
race;
religion or belief;
sex;
sexual orientation."
Many of the principles to be derived from a substantial volume of cases on the duty to have "due regard" were summarised by McCombe LJ in Bracking (No. 1) at [25]. Those principles were not in dispute before me, although it was said that they were not comprehensive. Of particular importance is the fact that the duty is personal to the decision maker (in this case, the Minister), and therefore what matters is what he or she knew, and what he or she (rather than the advising officials) took into account at the time when the decision was made. The duty is non-delegable and must be exercised in substance,...
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