The Queen (Claimant on the Application of) v Stuart Bracking and Others The Equality and Human Rights Commission (Intervener)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Blake |
| Judgment Date | 24 April 2013 |
| Neutral Citation | [2013] EWHC 897 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 April 2013 |
| Docket Number | Case No: CO/10632/2012 |
[2013] EWHC 897 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Blake
Case No: CO/10632/2012
and
and
Representation :
Mr David Wolfe QC for the Claimants (instructed by Deighton Pierce Glynn for First, Second and Third Claimants and Scott Montcrieff and Associates LLP for Fourth and Fifth Claimants).
Ms Lisa Busch for the defendant (instructed by DWP Legal Services)
Ms Helen Mountfield QC for the intervener EHRC
Introduction
The claimants are all severely disabled people who are current users of the Independent Living Fund (ILF). They seek judicial review of two decisions of the defendant Secretary of State. The first is the consultation engaged in between July and October 2012 as to the impact of the proposed closure of the ILF and the second is the decision made in December 2012 to close the fund.
The Independent Living Fund
The ILF is a non-departmental public body sponsored by funding from the Department for Work and Pensions (DWP) and the Minister for Disabled People (MDP). It operates as an independent discretionary trust fund managed by a Board of Trustees. A legally binding trust deed sets out the powers and procedures of the Trustees and the eligibility criteria for help from the fund. The deed has been amended on a number of occasions between 2007 and 2012.
The original fund was set up in 1988 as an interim measure until the implementation of community care legislation and a review of social security benefits for people with disabilities. This fund was wound up in 1993 but due to its popularity, a commitment was made to maintain a fund to provide continued support. Funding was continued in two ways. There was first an extension fund that maintained payments to people who applied under the pre 1993 scheme but was closed to new applications; second, a 1993 fund was established to receive new applications from 1993 to 2007. These two funds were merged in 2007 but the two main groups of users reflected the history. Group 1 is the former extension fund users maintaining the pre—1993 system. Group 2 users are those who have applied from 1993 onwards.
The fund works in partnership with local authorities to devise joint care packages which are a combination of services or direct payments from the local authority and cash from the ILF. Applications can only be made with the support of the social services department of the local authority. On receipt of an application, the ILF arranges for one of its own social workers to discuss an applicant's care needs, negotiate an appropriate package and provide advice and assistance, for example, with meeting any duties arising as an employer of carers.
The Trust deed requires trustees to ensure that payments out do not exceed the grant decided annually by the DWP and that priority is to be given to existing beneficiaries of the fund. In 2010/11 the fund received a budget of £359 million for distribution through the whole of the United Kingdom to roughly 20,000 claimants with complex and high support needs. As a result of financial constraints the ILF first announced that from March 2010 new applications would only be accepted from those in paid work of at least 16 hours per week and from 17 June 2010 that it would no longer be open to new applications. It was clear that the numbers of applications received before closure exceeded available funds.
In December 2010 a written Ministerial Statement from the MDP indicated that the present arrangements were no longer considered financially viable and that following the work of a Review Commission there would be a consultation aimed specifically at how to develop a new model for future funding of care and support.
The ILF explained its function in its submission to this Commission of 28 January 2011. From this and related material it is possible to identify a number of features of how the fund benefits its users:—
i) The ILF pioneered a procedure of direct payments to users who are able to deploy the funds in a personalised budget. By contrast with the statutory scheme discussed below, the ILF, therefore, funds people rather than specific needs of disabled people.
ii) Its payments complement sums awarded to claimants by social services departments of local authorities under the statutory schemes for adult social care and social security. It has, therefore, been used as a supplement rather than an alternative to local authority funding under the statutory scheme.
iii) The aim of the Trustees of the fund is to support independent living and combating social exclusion on the grounds of disability. Payments are frequently used to provide one or more personal assistants so users can avoid having to live in residential accommodation, enter or remain in the labour market until normal retirement age, access further education, and engage in recreational and community activities that it would be difficult to undertake without assistance.
iv) The fund has low administrative costs, is flexible and portable so that users may change addresses without undue difficulty in funding support.
The Local Authority Scheme of Support for Disabled People
The National Health Service and Community Care Act 1990 imposes a statutory duty on local authorities to assess those who appear to be in need of community care services. It requires the authority to make first an assessment of needs and then a decision, having regard to that assessment, as to the provision by them of any such services. Subject to any direction given by the Secretary of State the assessment should be carried out in such form as the local authority consider appropriate. Statutory guidance is issued by the Secretary of State, to which regard must be had and which should be followed unless appropriate reasons are identified for not doing so.
An informative description of the scheme can be found in the judgment of Mrs Justice Lang in the R (ota) JM and NT v the Isle of Wight Council [2011] EWHC 2911 (Admin). For some time there have been criteria for assessment of needs known as the fair access to care services (FACS) criteria that distinguish between four categories: Category 1—Immediate Risk/Crises; Category 2 — Substantial High Risk; Category 3 — Moderate Risk; and Category 4 — Low Risk.
Any single individual may have different categories of needs depending upon their level of disability and social circumstances. Local authorities, therefore fund, needs rather than individuals. As a result of continuing budgetary pressure on local authorities only needs that came within Category 1 and 2 are likely to be funded. It is understood that at present a very few local authorities restrict funding to Category 1 needs.
The Defendant's Consultation
The purpose of the consultation was identified as seeking views on the impact on users and others of devolving funding to local authorities and devolved administrations. The closure of the ILF in 2015 was proposed. The Government also sought views on how closure could be managed in a way which would minimise disruption to the care and support needs of existing ILF users.
Consultees were invited to respond to five questions namely:—
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 could any impact be mitigated?
Question 4: What are the specific challenges in relation to Group 1 users? How can the Government ensure this group are able to access the full range of Local Authority care and support services for which they are eligible?
Question 5: How can DWP, the ILF and Local Authorities best continue to work with ILF users between now and 2015? How can the ILF best work with individual Local Authorities if the decision to close the ILF is taken?
The Consultation document indicated at paragraph 27:
"We will publish our response to this consultation in Autumn 2012. Alongside that response, which will set out the detail of our decision, we will publish a full Impact and Equality Impact Assessment. It would be premature to attempt to conduct a full Impact and Equality impact assessment at this stage because the details of our proposal have not yet been developed. The overview below is our initial assessment of the potential impacts for the different equality groups, as far as we are able to tell at this stage."
The consultation assessed the impact of the proposals with respect to the equality characteristic of disability to be:—
"In general, ILF payments are not paid on the basis of particular impairment or health condition, but according to support needs. Nonetheless we know that current users have a range of primary and secondary disabilities and we will...
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Stuart Bracking and Others v Secretary of State for Work and Pensions
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