Stuart Bracking and Others v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Kitchin LJ,Elias LJ |
| Judgment Date | 06 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1345 |
| Docket Number | Case No: C1/2013/1283 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 November 2013 |
[2013] EWCA Civ 1345
Lord Justice Elias
Lord Justice Kitchin
and
Lord Justice McCombe
Case No: C1/2013/1283
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT QBD ADMIN COURT
MR JUSTICE BLAKE
CO106322012
Royal Courts of Justice
Strand, London, WC2A 2LL
David Wolfe QC (instructed by Scott Moncrieff and Deighton Pierce Glynn) for the Appellants
Lisa Busch (instructed by the Treasury Solicitor) for the Respondent
Helen Mountfield QC (instructed by Clare Collier) for the Intervener, The Equality and Human Rights Commission
(A) Introduction
This is an application for permission to appeal from the Order of Mr Justice Blake of 24 April 2013, with the hearing of the appeal having been directed to follow if permission to appeal is granted. For my part, I would grant permission.
By his order the learned Judge dismissed the Appellants' application for Judicial Review of the decision of the Respondent, made on 18 December 2012, whereby the Respondent (in the person of the Minister of State in the Respondent's Department — the Minister for Disabled People) decided to close the fund known as "The Independent Living Fund" ("the ILF") with effect from the end of March 2015. The Appellants apply for an order that that decision be quashed. The Appellants are all persons with disabilities who currently receive funding from the ILF, assisting them with their needs and helping them to live their lives with an enhanced degree of independence.
Although somewhat differently expressed in the formal grounds of appeal, the Appellants' written and oral arguments are: first, that the Respondent failed in making the decision to close the fund lawfully to discharge the public sector equality duty imposed under section 149 of the Equality Act 2010 ("the PSED"); secondly, that the consultation which preceded the decision was inadequate; thirdly, that the decision was based unlawfully upon the assumption that proposals in a Government White Paper, "Caring for the Future, reforming care and support" and draft Social Care Bill would pass into law; and fourthly, that the judge in dismissing such arguments failed to give adequate reasons for his decision (paragraph 3 of the Appellants' skeleton argument).
(B) Background Facts
The factual background on this appeal, which is largely uncontroversial, is set out in paragraphs 2 to 23 of the Judge's judgment in the court below ( [2013] EWHC 897 (Admin)) and needs only to be summarised here.
The ILF is a Non-Departmental Government Body operating an independent discretionary trust, funded by the Respondent's Department ("the DWP") and managed by a board of trustees. In its original form the ILF was set up in 1988; it was re-constituted in 1993. It operates in partnership with local authorities to devise and provide joint care packages of services and direct payments to assist disabled persons, as the fund's name suggests, to lead independent lives, away from full time residential care, and as fully as possible in the community. The very worthy aim is to combat social exclusion on the grounds of disability. Applications to the ILF were received through local authority social services departments and are considered, after the intervention of the fund's own social workers in assessing the position of the individual applicants. The terms of the ILF trust prevents payments out of the fund in excess of funding received from the DWP. In 2010–2011 the ILF received some £359 million from the DWP for fulfilment of its purposes. For the purpose of the proceedings, we understand that somewhat over 19,000 people are currently in receipt of assistance through the ILF.
In December 2010 a Ministerial Statement was issued indicating that the existing arrangements for the fund were considered to be financially unsustainable and that in due course a consultation would be conducted to develop a new model for future care and support of present users.
In the background to the present dispute are the statutory duties imposed upon local authorities to assess the needs of persons claiming to require community care services, and to make suitable provision accordingly. The relevant criteria for assessment are set out in "Fair Access to Care Services" ("FACS") which identifies four categories of need: "Immediate Risk/Crisis", "Substantial High Risk", "Moderate Risk" and "Low Risk". In the face of budgetary constraints, many local authorities are presently only able to fund individual needs falling within the two higher categories. In these circumstances, the ILF has played an important role in supplementing the provision for disabled persons, over and above provision made by local authorities, and to make provision to enable or facilitate independent living by such persons, where such living would otherwise be impossible or difficult.
In July 2012 the DWP launched its consultation upon the future of the ILF. Its stated purpose was,
"…to seek views on the Government's proposal as to how the 19,373 existing users of the ILF should have their care and support needs met from 2015. While the Government is fully committed to funding users' care package up to 2015, we do not believe that the continued operation of the ILF as a legacy fund would be sustainable or justifiable."
In the next paragraph this appeared:
"The Government's preferred option for the future support of existing ILF users is that the ILF is closed in 2015, and that ILF funding is devolved to local government in England and to the devolved administrations in Scotland and Wales."
The consultation was said to be designed to obtain the views of fund users, their families and carers, interested individuals and organisations on the proposal and on how best to meet the future needs of ILF users.
In its introduction the consultation document set out a summary history of the ILF up to its closure to new users in 2010 and outlined the Government's current thinking about the fund as follows:
"10. On a number of occasions since the ILF was created the eligibility criteria have been changed to match changing demand and funding allocations. In 2008, in the face of increasing applications and costs, funding was changed from a demand led to a cash limited basis, and the eligibility criteria were changed to focus support on applicants with the greatest needs. Further changes to the eligibility criteria were required when the budget allocation for 2010/11 was reduced by the previous Government. However, ahead of, and in anticipation of the new rules, a very sharp increase in applications put the ILF budget under significant pressure, and in June 2010 the trustees had to take the decision that the fund would be temporarily closed to new users. At this point, it was clear that a strategic decision was needed on the role of the ILF from 2010/11, taking account of changes in the wider care and support system, in particular the roll-out of direct payments across the UK, personal budgets in England and other models of self-directed support in Scotland, Wales and Northern Ireland.
11. Unlike direct payments which are a payment of the cash equivalent of commissioned services, personal budgets let users know up front what funding they are eligible for and give them maximum flexibility over how that funding is used to meet agreed outcomes. Funding can be taken as a direct cash payment, in the form of services or a combination of both. This model of self-directed support incorporates many of the features which made the ILF approach popular, but supports much greater flexibility in how funding can be used to deliver independent living outcomes. The social care white paper, "Caring for our future: reforming care and support", published this week sets out the Government's plans to reform care and support, which includes the intention to put personal budgets on a proper legal footing, and to create a new legal right to receiving care and support through a personal budget. This will be supported by the improved availability of high quality information and advice, enabling people to exercise genuine choice and control over the care and support they need.
12. It was against this policy backdrop that the Government concluded that it was no longer appropriate for a NDPB operating as a trust to administer an increasing amount of social care funding in parallel to the mainstream social care system. The objectives of the ILF could be met within the care system administered by local authorities, in a way that is more responsive to the needs of, and accountable to local people. Alongside that decision the Government committed to fully protecting [sic] care packages of existing users until 2015."
The questions posed by the consultation were these:
"Question 1: Do you agree with the Government's proposal that the care and support needs of current ILF users should be met within the mainstream care and support system, with funding devolved to local government in England and the devolved administrations in Scotland and Wales? This would mean the closure of the ILF in 2015.
Question 2: What are the key challenges that ILF users would face in moving from joint ILF/Local Authority to sole Local Authority funding of their care and support needs? How can any impact be mitigated?
Question 3: What impact would the closure of the ILF have on Local Authorities and the provision of care and support services more widely? How can any impact be mitigated?
Question 4: What are the specific challenges in relation to Group 1 users?...
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