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||Neutral Citation Number:  EWHC 4134 (Admin)
||Case No: CO/2629/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||8th December 2014
B e f o r e :
MRS JUSTICE ANDREWS DBE
|| R (on the application of ASPINALL, PEPPER and others ) (FORMERLY INCLUDING BRACKING)
SECRETARY OF STATE FOR WORK AND PENSIONS
THE EQUALITY AND HUMAN RIGHTS COMMISSION
(Transcript of the Handed Down Judgment of
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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
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mrs Justice Andrews:
- 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)  EWHC 897 (Admin) at - and summarised in McCombe LJ's judgment in the same case in the Court of Appeal  EWCA (Civ) 1345 at  and . 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)  EWCA Civ 1345 at .
- 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  EWCA Civ 1345 at -. The overwhelming majority of the responses came from current users of the ILF. McCombe LJ observed at  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").
- 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-
pregnancy and maternity;
religion or belief;
- 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 . 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, with rigour, and with an open mind. There must be an assessment of the risk and extent of any adverse impact and of the ways in which such risk may be eliminated before any policy is adopted. Officials advising the Minister have to be careful to avoid telling him what they think he wants to hear, and rigorous in making the necessary inquiries and reporting the results.
- McCombe LJ said this at -:
"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 that 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… There is a need for a "conscious approach" and the duty must be exercised "in substance, with rigour and with an open mind."… In the absence of evidence of a "structured attempt to focus upon the details of equality issues".... a decision maker is likely to be in difficulties if his or her subsequent decision is challenged."
- It was common ground that the duty to have "due regard" encompasses a requirement to gather further information in certain circumstances. However the nature and extent of that obligation were matters of dispute. Both the Claimants and the Defendant relied on the following passage from the judgment of Elias LJ in R(Hurley & Moore) v Secretary of State for Business Innovation and Skills  EWHC 201:
" It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para ):
'….the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration.'
 I respectfully agree. But none of this is necessary if the public body properly considers that it can exercise its duty with the material it has. … This was not legislation passed in a vacuum with no appreciation of the likely effects on protected groups. If the question were whether there had been adequate consultation about the effects of the proposals on the lower socio-economic groups, the only conceivable answer in my view would be that there had been."
- The reference to the principles in Tameside is of course to the well-known passage in Lord Diplock's speech in which he said (at p.1065):
"Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?"
- Mr Chamberlain QC, who appeared with Ms Apps on behalf of the Defendant, submitted that as the duty relating to information is a duty to "have due regard to the need to take steps to gather relevant information" and not an independent information-gathering duty, it suffices if the decision maker, having considered the matter, reasonably believes he has sufficient material on which to discharge the PSED. I do not accept that submission, which would lead to the iniquitous result that a decision taken on the basis of inadequate information could be upheld on the basis that a Minister reasonably (but mistakenly) believed he had sufficient information to discharge the PSED.
- In Hurley & Moore, Elias LJ accepted the submission that the combination of the Tameside principle and the duty of "due regard" under s.149 of the 2010 Act required public authorities to be properly informed before taking a decision. His observation that further information-gathering was unnecessary if the public body properly considers that it can exercise its duty with the material it has, must be read in that context. "Properly" connotes that the public body has sufficient relevant material and therefore does not need to gather more, even if a further consultation or evidence-gathering exercise would result in it being even better informed.
- A decision cannot be impugned if it was taken on sufficient information, even if additional relevant information might have been obtained, but the decision maker has taken the reasonable view that such additional information would not materially add to his store of relevant knowledge. That is so even if that view, in hindsight, turns out to have been mistaken. However, if the decision maker is not in fact properly informed, it is no answer to the challenge to say that he reasonably believed that he was. The question whether the information gathered and considered by the Defendant was adequate for the purpose of performing his statutory duty is a matter for the court to decide.
- In Hurley & Moore Elias LJ also made it clear (at ) that:
"it is quite hopeless to say that the duty has not been complied with because it is possible to point to one or other piece of evidence which might be considered relevant which was not specifically identified in the EIA. I suspect that virtually every decision could be challenged on that basis…"
He specifically endorsed the observations of Davis LJ in R (Bailey) v London Borough of Brent  EWCA Civ 1586, at  that decision-makers:
"cannot be expected to speculate on or to investigate or to explore such matters ad infinitum; nor can they be expected to apply, indeed they are to be discouraged from applying, the degree of forensic analysis for the purpose of an EIA and of consideration of their duties under s.149 which a QC might deploy in court".
- In R(Zaccheus 2000 Trust) v Secretary of State for Work and Pensions  EWCA Civ 1202, Sullivan LJ endorsed those observations, and those of Underhill J at first instance to the effect that the court is not concerned with a drafting competition. EIAs (Equality Impact Analyses, now known as Equality Analyses or EAs) are not legal documents. Their purpose is to evidence that due regard has been had to the specified factors. Sullivan LJ stated that in almost every case, it would be possible to say that one or more of the specified factors could, with advantage, have been considered in greater detail, but the fact that criticisms can properly be made of an EIA does not mean that the public authority exercising the function will have failed to have due regard to the specified factors .
- In that case, the criticism of the EIA was remarkably similar to that in the present case, in that it was said that no attempt had been made to quantify the impact of the decision (restricting the increases in housing benefit to the consumer price index). The EIA had stated, with reasons, why it was not possible to provide estimates on the distribution of losses because the precise impact depended on various (imponderable) factors including whether landlords decided to restrict rent increases. The Court of Appeal held that the lack of quantification in the EIA did not lead to the conclusion that there was a failure to have due regard to the specified factors. Moreover, although the analysis in the EIA was limited, and more could have been said, the Court of Appeal did not accept that the information which was provided was irrelevant or uninformative.
- In R (Greenwich Community Law Centre) v London Borough of Greenwich  EWCA Civ 496, Elias LJ at  held that the court should ask:
"whether as a matter of substance there has been compliance; it is not a tick box exercise. At the same time the courts must ensure that they do not micro-manage the exercise." (emphasis added)
- The duty to have "due regard" is not a duty to achieve a result, but a duty to have regard to the need to achieve the relevant goals. As McCombe LJ made clear in Bracking No 1 at , citing with approval an earlier passage in the judgment of Elias LJ in Hurley & Moore at -, the concept of "due regard" requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given a different weight to the equality implications than the decision maker did. The decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.
- It is of importance to highlight this in the present case, because the decision to close the ILF has understandably engendered very strong feelings among those who may be adversely affected by it. However, no challenge has been made to the Minister's decision on the basis that it was Wednesbury unreasonable. It was common ground before me that if the court was satisfied that there was due compliance with the PSED, this claim for judicial review must fail. It is no part of the court's function to express a view as to the quality or correctness of the decision. It can only decide whether the decision was taken lawfully.
The decision of the Court of Appeal in Bracking (No.1)
- In Bracking (No.1) the argument that there was a failure to have "due regard" to the PSED was put on two bases:
i) There was no conscious direction of the Minister's mind to the statutory criteria over and above a merely general regard to equality issues. There was no evidence that her attention had been drawn to her legal obligations, and in particular to the positive obligation to advance equality of opportunity.
ii) There was no material before the court from which it could properly infer that the Minster properly appreciated and addressed the full scope and impact of the matters that she was obliged to consider pursuant to the PSED. In particular it could not be inferred from the evidence that she was fully aware of the danger that significant numbers of ILF users might no longer be able to live in their own homes, remain in employment or continue education. (Emphasis added).
- The Court of Appeal unanimously accepted the first of these criticisms, but there was a division of opinion about the second. McCombe LJ concluded (albeit he said reluctantly) that too much of the respondent's case depended upon the inference that counsel for the Secretary of State had invited the court to draw from the facts as a whole, rather than upon hard evidence. There was insufficient evidence to demonstrate to the court that "a focussed 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" . What was put before the Minister did not give her "an adequate flavour of the responses received" [from the consultation] "indicating that independent living might well be put seriously in peril for a large number of people" .
- Kitchin LJ agreed, stating that he was not prepared to infer that the Minister properly appreciated the impact of the proposals on the substantial group of disabled persons currently benefiting from ILF funding. He did not consider that the Minister was given adequate information to enable her properly to assess the practical effect of the proposals on the particular needs of these persons and their ability to live independently, which was an "essential foundation for the discharge by the Minister of [the PSED]."
- Elias LJ dissented on that point, stating that notwithstanding the "somewhat anodyne" analysis of the adverse consequences in the documents presented to the Minister, if the only issue had been whether the Minister had properly appreciated the full impact of the decision on those most adversely affected, he would have been prepared to accept that she did. He considered there was "just sufficient" evidence legitimately to draw that inference. He gave two reasons: first, as Minister for the Disabled, the Minister would have known and understood the objectives of the fund, which was to foster independent living. Losing the fund would be bound to have an impact on that objective. Secondly, there was evidence that the Minster consulted personally with many affected groups. Elias LJ had no doubt that evidence of hard cases would have been forcefully drawn to her attention. Reading all the material in context he was prepared to accept that she was "sufficiently aware of the very real adverse consequences which closing the fund would have on the lives of many of the more severely disabled; she was not in ignorance of the material facts" .
- Whilst there was disagreement between the members of the Court of Appeal as to the sufficiency of the evidence before it, there is nothing in the judgments that suggests that the Minister (or those advising her) should have carried out a quantitative analysis to ascertain even in general terms how many, or what proportion of ILF users would or might be unable to continue to live independently if the fund were closed. The focus was on whether the evidence sufficed to demonstrate that the Minister was aware of the gravity of the impact that the decision would have on the lives of "many of the more disabled" in that group or on those "most adversely affected" by it. If the majority had been satisfied that the Minister had been given "a sufficient flavour" of the outcome of the consultation, and had been apprised of the fact that "independent living might well be put seriously in peril for a large number of people," they would have reached a different conclusion on that issue. In terms of the requisite appreciation of the quantity of those who would be adversely affected in the ways described, the Court of Appeal used words and phrases such as "a large number of people," "significant numbers" and "many".
- The divergence of views on that issue and the reason for it is of relevance, because the challenge in the present case is confined to whether, when he made the decision, the current Minister knew enough about the likely impact of the decision on the approximately 18,000 people who would be affected, and/or had done enough to find out, for the purposes of a lawful discharge of the PSED. This time, it is accepted by the Claimants that the Minister had his attention specifically drawn to his legal obligations under the PSED and under the United Nations Convention on the Rights of Persons with Disabilities ("UNCRPD"). The first successful ground of challenge in Bracking (No.1) is therefore not repeated in the present claim.
- It was common ground that the UNCRPD was relevant, though there was some dispute as to the extent to which it impacted upon the discharge of the PSED. Article 19 of the UNCRPD provides as follows:
"States Parties to this Convention recognise the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:
(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
(b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community.
(c) Community services and facilities are available on an equal basis to persons with disabilities and are responsive to their needs."
- In Bracking (No.1) Ms Mountfield QC, who appeared on behalf of the Equality and Human Rights Commission ("EHRC"), as she did again in the present case, placed great emphasis on the United Kingdom's obligations under the UNCRPD, and relied upon Carnwarth LJ's observations in AH v West London Mental Health Trust  UKUT 74 (AAC) that "by ratifying a convention, a state undertakes that where possible its laws will conform to the norms and values that the convention enshrines". In that passage Carnwath LJ was doing nothing more than applying the well-established principle that a domestic statute will be interpreted in a way that is consistent with the obligations undertaken by the UK under any relevant international convention. There is nothing controversial about that. However, in this case there is no suggestion that s.149 of the 2010 Act is at odds with the UK's international obligations or that there is any ambiguity in s.149 that requires to be resolved by reference to the UNCRPD.
- In Bracking (No.1) those points about interpreting domestic legislation consistently with the UK's international obligations were made in the context of a submission made by Ms Mountfield to the Court of Appeal that the PSED was "to have due regard to the impact of what was proposed upon all disabled persons and specifically upon that particular class of persons whose position might most obviously be adversely affected by the proposal, in the context of the wider duty to have due regard to the need to advance equality of opportunity for disabled persons generally. How the balance was to be struck between those groups was for the Minister, but he or she must fully appreciate the impact on those adversely affected" . McCombe LJ accepted that formulation of the duty, and so do I.
- Although it was accepted by the Defendant that the UK's obligations under the UNCRPD were a relevant matter for the Minister to take into account, Mr Chamberlain drew the court's attention to the note of caution sounded by Laws LJ in Hainsworth v MOD  EWCA Civ 763 at :
"great care needs to be taken in deploying provisions [in the UNCRPD] which set out broad and basic principles as determinative tools for the interpretation of a concrete measure."
- Ms Mountfield contended that the Minister was obliged to form a view as to whether the decision to close the ILF would breach the UK's obligations under international law. In order to have "due regard" to an international obligation, one has to understand what the obligation requires; therefore the Minister had to know what the UK's obligations were under the UNCRPD. She submitted that Article 4 of the UNCRPD contains not only an obligation to "take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes" (Article 4(1)(c)), but an obligation to "refrain from engaging in any act or practice that is inconsistent with the Convention" (Article 4(1)(d)), which she characterised as a principle of "non-regression". Thus there was said to be a positive obligation on the Minister to form a view as to whether or not closing the ILF to existing users would constitute a "regressive measure" under Article 19 UNCRPD and if so, to recognize that this was a departure from the undertaking of non-regression in Article 4(1)(d) and to give "rigorous consideration to alternatives to avoid this measure". Ms Mountfield submitted that there was nothing in the evidence to suggest that this exercise had been carried out.
- This appears to be at the very least a gloss on, and at the most a departure from, the submissions made by Ms Mountfield in Bracking (No.1), and one for which there appears to be no legal justification. Ms Mountfield rightly accepted that a measure which has an adverse effect on the ability of some disabled people to live independent lives would be lawful if it enhances the ability of others to live independent lives. That means that the ambit of the alleged principle of "non-regression" for which Ms Mountfield contends is uncertain.
- There is no general principle of "non-regression" in international law and it is difficult to see how any positive duty of "non-regression" can arise specifically under the UNCRPD. The provisions of Article 4 of that treaty are aspirational only, and cannot qualify the clear language of primary legislation, as Laws LJ made clear in Hainsworth. I do not accept that what was said in Hainsworth is distinguishable on the basis that the articles of the UNCRPD being relied upon in that case were interpretative only. The UNCRPD is an unincorporated treaty, and as such, interpretation of its provisions is not justiciable by the English courts: R (Corner House Research) v Director of the Serious Fraud Office  1 AC 756, see especially Lord Brown at - (p.850) and Lord Bingham at  (p.845). Lord Bingham observed that it would be "unfortunate if decision-makers were to be deterred from seeking to give effect to what they understand to be the international obligations of the United Kingdom by fear that their decisions might be held to be vitiated by an incorrect understanding."
- That observation, with which I respectfully agree, is especially apposite in the present case, where Ms Mountfield's proposition that a duty of non-regression can be spelled out from Article 4(1)(d) of the treaty is controversial. In my judgment it was no part of the Minister's task to consider whether his decision would put the UK in breach of its international obligations. He was merely obliged to take those obligations into account, and pay them proper attention. However, it so happens that the view expressed by some of the consultees that closing the ILF would be a breach of Article 19 of the UNCRPD was something that was specifically drawn to the Minister's attention by his advisers and which he did take into account when he reached this decision.
- Ms Mountfield submitted that where the need to advance equality of opportunity is not merely a policy desideratum but is required to give effect to the UK's international legal obligations, "due regard" means a heightened level of regard or a "particularly rigorous and substantial consideration". That submission mixes up the object of the due regard with the level of regard to be paid to that object. The desirability of the need to achieve the objectives set out in s.149 of the 2010 Act is no doubt underlined and reinforced by the fact that they are facets of a wider objective that the UK has aspired to achieve in an international treaty, and that fact is something that the Minister must properly consider with all the rigour that "due regard" requires in any case. However the fact that equal enjoyment of independent living is a right binding in international law does not enhance the level or extent of the "regard" that must be paid to the desirability of achieving it. What is required of the decision maker is a proper and conscientious focus on the statutory criteria, albeit with the benefit of knowledge and consideration of the relevant provisions of the UNCRPD, since the 2010 Act is a mechanism by which the UK has chosen to give effect to its international obligations to take positive steps towards advancing equality of opportunity.
- Moreover, it is important to reiterate that this case is not about the weight to be attached to any factor in the evaluation exercise. The duty to have due regard encompasses the need to have due regard to the UK's obligations under international law if and to the extent that they are relevant; but the UNCRPD does not affect the nature or extent of the duty, still less the way in which the court will approach the question whether the duty has been discharged.
- In the present case there is ample evidence that the Minister was specifically advised to take into account the provisions of the UNCRPD, especially Articles 4, 19, 24 and 27. This is apparent from the drafts of the EA and the Ministerial Submissions of 12 and 19 December 2013, and the final version of the EA of 6 March 2014. He also received legal advice in relation to the UNCRPD, over which privilege has not been waived, for the simple and understandable reason that the allegation that the Minister was not properly advised as to what his legal obligations were forms no part of the Claimants' pleaded grounds of challenge in this judicial review.
- At various points in the course of her submissions, both oral and written, Miss Mountfield sought to raise the argument that because there was nothing on the face of the EAs to indicate a recognition that Article 4 of the UNCRPD "imposed any positive obligations" on the UK (including in particular the alleged non-regression obligation) this meant that the Minister did not "know what it was legally relevant for him to know" in relation to Articles 4 and 19 UNCRPD and that that he only had a "vague awareness" of what those Articles required. Mr Chamberlain objected to that line of argument on the basis that it was not open to the EHRC on the grounds of challenge before the Court, and that it would be unfair to seek to determine whether the Minister had proper legal advice about the UNCRPD or any other matters in the absence of a waiver of privilege over the legal advice which he did receive. Had the case been put that way by the Claimants, the scope of disclosure by the Defendant would have been different.
- That objection, in my judgment, was well-founded. There is no evidence before the Court relating to a claim that the Minister did not properly understand what the UK's obligations under the UNCRPD entailed because that point is not and never has been in issue in this claim for judicial review. It is no answer to the objection for the EHRC to seek to characterise this as part of the "due regard" issue.
- I am satisfied, on the basis of the evidence before me, that the Minister's attention was drawn to all the relevant provisions of the UNCRPD and that those provisions formed part of his considerations. He also had the benefit of legal advice, although those provisions are probably straightforward enough for any intelligent person to understand with or without the input of a lawyer. I cannot draw the inference that the legal advice he received was wrong or insufficient, and in any event no such complaint has been raised by the Claimants.
- I therefore reject the submission by the EHRC that the Minister failed to have due regard to the UNCRPD. In his written Ministerial Statement of 6 March the Minister said "I have considered the implications of closing the fund very carefully before reaching my decision on the way forward. This has included in-depth consideration of all the various aspects of the PSED and the United Nations Convention on the Rights of Persons with Disabilities". The evidence adduced by the Defendant supports that statement.
- Ms Mountfield also sought to rely upon Article 31 of the UNCRPD which contains an undertaking by State Parties to "collect appropriate information, including statistical and research data, to enable them to formulate and implement policies to give effect to the present Convention". As Mr Chamberlain pointed out, this article is not even mentioned by the EHRC in its technical guidance as having any relevance to s.149 of the 2010 Act. In my judgment Article 31 is of no assistance to me in interpreting s.149, let alone in determining whether the Minister had sufficient information before him to properly discharge the PSED. I therefore propose to say no more about it.
The factual background to the Minister's decision
- The real issue for the court to determine is not whether the Minister paid sufficient attention to these matters, but whether he had sufficient material before him to be able to truly appreciate the implications of closing the ILF for those most likely to be affected by its closure. That is the issue at the heart of the criticism levelled at the decision. In essence the Claimants' case is that the Minister was no better informed about those matters this time round than his predecessor was. It is therefore necessary, first of all, to consider what information the Minister did have when he made the decision and what, if any, regard was paid to whether there was a need to obtain any further information before the decision was taken.
- The Minister was appointed to his post on 7 October 2013, before the Court of Appeal handed down judgment in Bracking (No. 1) on 6 November. The decision-making process took some 3½ months, during which the Minister had extensive discussions with the officials advising him about the nature and extent of the impact of closure of the ILF on existing ILF users. It was certainly not a "tick-box exercise" conducted in a legal or factual vacuum.
- Around a week before the Minister took up his new role, Ms Mary Hipkin was appointed as the Acting Deputy Director for Disability Benefits, Decisions and Appeals within the Disability Directorate at the DWP. Ms Hipkin is a senior civil servant with some 30 years' experience in various policy roles within the DWP, but she had had no involvement in the earlier decision to close the ILF. In her new post she became responsible for the ILF stewardship team and for providing advice to the Minister on the options available to him following the decision in Bracking (No 1). Ms Hipkin provided a number of witness statements for the purposes of these proceedings; as is normal in judicial review proceedings, she was not cross-examined.
- Ms Hipkin asked her team to carry out a thorough review of all the information available, including the responses to the 2012 consultation, to identify what evidence was available and how it related to the PSED requirements. She also liaised with the Head of the Disability Analysis Division and alerted him to the requirement for urgent analytical support to assist with the preparation of further advice to the Minister on the implications of closure of the ILF, including the preparation of a new EA.
- In mid-November 2013 three experienced policy officials in Ms Hipkin's team reviewed all the responses from the consultation, and Ms Hipkin herself read through a sample of responses to familiarise herself with the concerns that had been raised. In fact, in the Autumn of 2012 a different team of officials had already produced a written analysis of the key themes emerging from the consultation exercise. Ms Hipkin decided that a sample of the responses should be put before the Minister, since they were the most direct way of informing him of the potential impact on individual users and one which, as she put it, "pulled no punches". She also put in place a system for logging and considering all correspondence relating to the ILF received by the Minister in order to gather any views submitted by or on behalf of users which might add anything new to the views already expressed in response to the consultation.
- When the Court of Appeal judgment in Bracking (No.1) was handed down, all steps taken towards managing the transition to the planned date of closure of the ILF (31 March 2015) were halted. No existing ILF user had actually transferred to being exclusively supported by a LA, but some steps had been taken in preparation for the envisaged transfers, including reviews by the ILF of the circumstances and needs of some ILF users. LAs were not necessarily involved in those reviews. In late November 2013 Ms Hipkin gave consideration to whether further useful information about the likely impact of closure on existing ILF users might be gained from the transfer reviews of a sample of, say, 15-20 ILF users. As she and her team had not yet seen a report from a transfer review visit, Ms Hipkin sent some DWP analysts to visit the ILF to explore what was feasible in terms of obtaining useful case studies to inform the EA.
- The visit took place on 25 November 2013. The analysts reported back that there were a number of difficulties with gathering material from transfer reviews, including the need to obtain informed consent from the individuals concerned, which might not be forthcoming, and would take some time to obtain even if it were; the desirability of obtaining results from a wide spectrum of LAs; and the fact that LA representatives would have to make judgments about the type of support that would be available to current ILF users in 2015. The analysts said there was no guarantee that such case studies would produce EA evidence that was more compelling than the evidence already available from the consultation process. The analysts' estimate was that the work would take 3-4 months to complete. The suggestion was made that the study should not proceed if they needed results by the end of the year.
- In the light of that feedback, Ms Hipkin decided not to commission the further study, on the basis that it was unlikely to be of any greater benefit in terms of the EA than the information already to hand in the form of responses to the consultation. She explained that the time it would take was not the only consideration; she felt that the study would be limited in terms of demonstrating the impact of closure on the ILF on current ILF users, and not necessarily reliable or robust. At best it would produce hypothetical information in relation to 15-20 cases.
- Thus it was that samples of the responses to the consultation from current ILF users came to be put before the Minister in the form of direct quotations. Various themes drawn from the responses were also highlighted both in the submissions to the Minister and in the various versions of the EA.
- The first submission to the Minister was dated 12 December 2013 and was accompanied by a draft EA. The Minister attended a briefing on 16 December 2013 at which he indicated that he had read and digested both those documents, and requested advice in relation to when any decision on the ILF would come into effect and on the possibility of ring-fencing the money that would otherwise have gone to the ILF. He was provided with a second submission on 19 December 2013, which had been annotated by his Private Office.
- Paragraph 2 of the 12 December 2013 submission set out the impact of closure in these terms:
"this summary and the accompanying annexes contain… an assessment of the likely impact of your decision on ILF users. This is considered in more detail in the accompanying Equality Analysis (EA) but you should note that if you take a decision to close the ILF it is very likely that there will be a negative impact on a significant number of current ILF recipients all of whom are disabled and are therefore covered by the provisions of the Equality Act 2010 and that in some cases ILF recipients have indicated that this impact would be severe."
- In the equivalent passage in the 19 December 2013 submission the words "it is very likely that there will be a negative impact on a significant number of current ILF recipients" were substituted by "it is probable that the majority of current ILF recipients…will face some reductions or changes to the current funding they receive." Thus the nature of the "negative impact" was identified and the Minister was told it was probable (i.e. more likely than not) that most ILF users would be adversely affected. In general, the language used in the 19 December submission is less vague, and the word "probable" is substituted for "highly likely" in other contexts. On the annotated version of that submission, staff in the Minister's Private Office highlighted the passage entirely and put a line down the right hand side up to the word "severe" which was also underlined. Written on the left was the message "Mike, you must pay particular consideration to these elements."
- The Minister was reminded of the three limbs of the s.149 duty. Officials then advised as follows (emphasis in the annotated version of the 19 December submission):
"10. When making your decision, it is important that you not only take into account the needs of disabled persons in general, but also the impact of your decision on particular groups of disabled people; the Court of Appeal judgment was clear that it is not enough to state that the aim of the policy is to ensure equal treatment between one group of disabled people and another ie those who do and those who do not receive ILF funding; you must also consider how closing the ILF would affect the specific group of disabled people who currently benefit."
20. Most of the individual respondents strongly disagreed with the preferred approach outlined in the consultation – to close the ILF from 2015 and to devolve ILF funding to local government in England and the devolved administrations in Scotland and Wales. The early analysis of the responses (included in Annex C) showed that a significant minority, however, were not opposed in principle, providing their current funding packages were not affected or the funding transferred to LAs was ring-fenced. The most common views from, or on behalf of individuals are summarised here:
- The ILF was working well and did not need to be reformed;
- The ILF operates national eligibility conditions whereas LAs policies vary, creating a 'postcode lottery';
- Concerns about the competence, efficiency and capacity of LAs to deliver;
- Concerns about reductions in care packages or about not securing the same outcomes if their LA was solely responsible for their care and support;
- A belief the ILF made decisions based on need and, unlike LAs, was not driven by budgetary considerations;
- Concerns about loss of choice and control around who provides care. The ILF support was felt to be more flexible by, for example, allowing users to choose family members or non-agency staff as their carers;
- Concerns about the quality, continuity and consistency of care if users were unable to retain the same carer or PA;
- The proposal was simply intended to cut welfare expenditure; and
- Closing the ILF would breach Article 19 of the UN Convention on the Rights of Persons with Disabilities.
21. Following the Court of Appeal judgment of 6 November 2013, we have reviewed the responses from individuals to identify and set out for you the views of those respondents who provided fuller information about how they believed the closure of the ILF and cuts to current care packages would affect their lives.
22. A significant number of those who were concerned about reductions in care packages, explained in varying levels of detail, what they believed the effect would be on their independence, their educational and employment aspirations and opportunities and on their ability to access social and other community-based activities. These views can be summarised as follows:
- Some users stated that significant cuts to their current care packages would mean they would be forced to consider residential care. This was cited, for example, by a number of responses from elderly parents of ILF users who had been able to care for their children at home with the support of ILF-funded carers. Their concern was that without this funding they would no longer be able to cope and therefore their children could no longer be cared for at home and would have to enter residential care.
'If the ILF were to close completely (he) would lose almost 50% of his care package… this would mean he could not be looked after at home and would almost certainly need to go into residential care'.
- A number of users stated that with the support of ILF-funded personal assistants they had been able to access higher education and enter employment. Their concern was that they would be unable to continue in higher education or employment if the overall level of support was reduced.
'I am also a school governor… and I am involved with [local university] in the training of social work students and medical students…without [ILF] funding I would either be trapped in my own home, or worse institutionalised in a care home.'
- Another common concern was about the inability to access social activities or, in some case, voluntary work either because of reductions in the number of care hours funded or because their LA would fund them to attend a day centre rather than pay for a personal assistant to accompany them to activities of their choice.
'My daughter has severe learning difficulties and with the ILF I am able to employ support workers for her to access community activities instead of going to a traditional day service which in my opinion does not give good stimulating quality care.'
A handwritten note from the Minister's Private Office said "this echoes your own personal concerns over LA's using cheaper day centre in your role as both constituency MP and Minister for Disabled People."
- A further selection of responses that illustrate these concerns can be found at Annex D."
29. Closure of the ILF would have an impact on users across the UK; however that impact is likely to be different depending on where in the UK the user lives:
- England. It is probable that the majority of users will face some changes to the way their support is delivered and that a large number of users will experience some reductions or changes to the current funding they receive. Closure of the ILF would mean that users in England will have all their care and support needs assessed under a single eligibility and charging regime administered by LAs. In line with wider Government policy, the transferred funding will not be ring-fenced. How the funding is allocated will therefore be a matter for each individual LA, based on local priorities. This is likely to have an impact on ILF users due either to reductions in the amount of support a person receives or because of changes in how that support is delivered. The precise reduction or change is not easy to predict with accuracy given that the allocation of funding would, if your decision is to close the ILF, be a matter for the individual LA. (LAs themselves are subject to the PSED.) In their joint response to last year's consultation, the Local Government Association and the Association of Directors of Adult Social Care stated that:
'As ILF recipients transfer into the LA system in 2015, and are subsequently reviewed against the [local authority assessment] criteria, the value of the personal budget calculated through the Resource Allocation System will generally be at a lower level than the initial ILF/LA budget.'
- Devolved Administrations. The impact on the care and support arrangements of ILF users living in Scotland and Wales is likely to be different as the devolved governments there would be free to decide how best to distribute the funding devolved to them in respect of ILF users. The Scottish Government published its own consultation document in August outlining four possible models for distributing the funding in Scotland, including the establishment of a new trust or partnership to administer the funding on a national basis (in Scotland). The National Assembly for Wales had been planning to issue a consultation document on 25 November, but, in the light of the Court of Appeal judgment, did not do so. The position in Northern Ireland is different as Northern Ireland already funds users living there, but we understand that the Northern Ireland administrations would also develop specific proposals for supporting former-ILF users. It is difficult to determine what the impact would be but if you decide to close the ILF and the devolved administrations in Scotland and Wales decide not to ring-fence the funding, it is reasonable to assume that the impact on users' care and support packages will be similar to the impact on English users.
Handwritten note: "assumption that impact will be same in Devolved Administrations."
30. On the assumption that there would be significant changes to the present arrangements for most ILF users, and that these changes could have serious impacts for a significant proportion of current users, the likely impact of those changes is considered separately here under each individual limb of the EA (although it is specifically to be noted that it would be possible to analyse some of the matters under either or both of the first two limbs)"
32. A common concern raised in last year's consultation was that changes to care packages would mean that they would not secure the same outcomes as they have with the ILF. In particular, some users felt that they would have less control over their daily lives, including the ability to do normal day-to-day activities, because reductions in the number of care hours funded or changes to how that support was delivered would mean that they could no longer employ a personal assistant to support them. A significant number of users provided more detailed testimony about how they believed their ability to live independently would be compromised. There is very little, if any, evidence however, that respondents believed that closure of the ILF would lead to direct discrimination, harassment or victimisation of disabled people.
33. Examples of the concerns ILF users have over loss of independence and control over their lives include:
"The ILF has helped me get my quality of life back…it has let me be a relatively normal person that just happens to be in a wheelchair….If I lose those 46 hours a week [ILF support] I will be back to just basic care. I am going to be a prisoner in my own home. It will be like a life sentence."
"Before I was introduced to the ILF I was looked after by the local authority. I had no life at all, just a horrible existence. I didn't get out of bed for months at a time. I was not encouraged to take part in life with the children. My care was extremely basic – to be kept clean, fed and medicated."
Handwritten note: "little or no evidence that ILF closure will cause discrimination or harassment. However impact on ability to live independently."
34. The impact of this change is likely to vary according to whether the user is a Group 1 or a Group 2 user. Some Group 1 users are likely not to qualify for local authority support because their needs are likely to be assessed as 'low' or 'moderate' under LA eligibility criteria. Closure of the ILF would have a significant impact on this group if, because of the loss of support, there is a consequential impact on their ability to live independently or to participate fully in society. However, we know that 60% of Group 1 users have some local authority contribution to their care package, indicating that they may also have support and care needs that might be assessed as eligible for support under the national minimum eligibility criteria. This impact is impossible to quantify given the variety of health conditions and disabilities and variations in local provision.
Handwritten note: "Mike, this is a key consideration for you, some users could have their life impacted and their ability to live independently."
35. The position for Group 2 users is different, as these users are already required to be in receipt of a minimum amount of local authority funding in order to meet the ILF eligibility criteria. For the vast majority of Group 2 users this minimum contribution is now £340 a week. The requirement to have this level of local authority funding means that it is reasonable to assume that Group 2 users have support needs that would be defined as 'substantial ' or 'critical' under local authority assessment criteria. Nevertheless, it is very likely that this group of users will also see some reductions or changes to their current care and support package. It is however very difficult to quantify precisely what the impact of closure would be on care and support packages at an individual level. This would involve making speculative or predictive assessments that, for example, compare ILF recipients with other disabled people who do not have access to the ILF, or comparing ILF users receive now with what they could get from 2015 onwards.
Handwritten note: "Mike, Group two also likely to see their packages reduced or changed."
39. A small number of those who responded to the 2012 consultation on the future of the ILF, and who expressed concern about changes to current care packages, explained their perceptions of how this would affect their lives in practice. In particular, they explained how they believed this would impact on their ability to live in their own or family home; on their educational or employment status or aspirations; and on their ability to access social or other community-based activities. Some specific examples include:
'Through support from the Independent living Fund I have been enabled to go back to University and to enter employment, firstly through casual work as an "expert by experience" for the Care Quality Commission and to then go on to get my first full-time job in 20 years… I am worried for the day that my 42 hours funded by the ILF disappear… (and I can) no longer able to pay for the support I need to lead the meaningful life I currently enjoy thanks to the ILF.'
'I am an active member of the Disabled People's movement, which includes being co-Chair of the [a local disability equality forum] that advises [local council] on its disability policies and supports local disabled people. I am also a school governor of a local infants school, and I am involved with [local university] in the training of social work students and medical students. I am able to do all this because of the support of the ILF to pay for personal assistance. However, without this funding I would either be trapped in my own home, or worse institutionalised in a care home.'
Both examples were highlighted in the margins.
40. The ILF's primary function is to make cash payments to enable users to purchase services, most commonly, the employment of a personal assistant or carer. Direct payments have been a feature of the ILF from the outset – at a time when there was no clear legal provision for local authorities to make direct cash payments within the adult social care system. It is however undoubtedly the case that the flexibility around how direct payments from the ILF are used has enabled many users to take up a range of employment, educational and social opportunities. Developments mean that the mainstream adult care and support system will (by 2015) include many of the features currently associated with the ILF such as direct payments and personal budgets.
42. A number of those responding to the consultation expressed fears about having to enter residential care and, as a result, being unable to choose their place of residence…
Handwritten note: "Mike you also discussed these concerns."
44… As set out above, many ILF users responding to the consultation on the future of the ILF made representations about how they believed closure would affect their daily lives; there is little or no available evidence however about any specific role that the ILF may have had in helping to build good relationships between disabled people and non-disabled people. The ILF does not have a specific remit in this area; however, the ILF has contributed to users' ability to engage in social and community activities and that this is likely to have brought users into greater contact with non disabled people; and that this may have made some positive contribution to the promotion of understanding and the development of good relationships between disabled and non-disabled people.
50. The evidence set out in the accompanying EA makes it clear that a decision to close the ILF would have a significant impact on the care and support packages of a very significant proportion of the ILF's existing 18,000 users. A number of users have also made representations around how they believe such changes would affect their ability to live independently; to have control over their daily lives; and to access educational and employment opportunities…"
It is clear from the annotations made by the Minister's Private Office on the 19 December submissions that (a) the Minister had already discussed the concerns expressed by current ILF users in response to the consultation that they would have to go into residential care, and (b) the Minister was not only aware of, but concerned about the prospect that if they were put in sole charge of the funds, LAs would decide to use cheaper day centres instead of providing the funding for disabled people to attend educational and social events of their own choosing. Thus he was plainly conscious of the adverse impact that closing the ILF was likely to have on existing users.
The first draft of the EA was appended to the submission of 12 December 2013. The draft went through three revisions, and the final version was published on 6 March 2014 simultaneously with the announcement of the Minister's decision. Like the submissions to the Minister, it spelled out in unvarnished terms the likely effects of the closure of the ILF on a significant number of current users. Thus the final EA included the following:
"31. All ILF users are considered to be disabled people because eligibility to receive ILF funding is dependent upon an entitlement to a higher rate of Disability Living Allowance (HRDLA) or the Enhanced Rate of the Daily Living Component of Personal Independence Payment (PIP). Therefore, closure of the ILF will have a direct effect on disabled people, and in particular, those disabled people who are current users of the ILF.
33… The ILF has undoubtedly played a significant role in supporting its users to live independently in their own homes, to access educational and employment opportunities and to participate actively in their communities. Closure of the ILF and the fact that the funding transferred to local authorities and the devolved administrations will not be ring-fenced in respect of current ILF users or disabled people more generally, has generated concern that ILF users will, as a result of reductions or changes to their current care and support arrangements, be denied opportunities they now have to participate fully in society.
36. The most common concerns articulated in the consultation responses from, or on behalf of individuals, were concerning the competence, efficiency and capacity of local authorities to deliver. These were linked to worries about their care packages being reduced and being unable to achieve the same outcomes as they have with the ILF. This is most likely because the ILF provides greater flexibility in the use of funding than most local authorities. It is almost certain that closure of the ILF will mean that the majority of users will face changes to the way their support is delivered, including the real possibility of a reduction to the funding they currently receive. This is because the ILF funds some aspects of care that some local authorities do not and may also provide different levels of flexibility in the use of such funding.
37. Loss of ILF funding could mean that current ILF users will have to make different choices about their daily lives. For example, this might be because they will no longer be able to employ a personal assistant. The extent to which this will occur is impossible to calculate, given the variety of conditions and differences in local provision.
38. Another common concern raised in the consultation was about inability to access social activities, voluntary work or employment either because of reductions in the number of care hours funded, or because the local authority would fund attendance at a day centre rather than pay for a personal assistant to accompany people to activities of their choice.
39. There is little evidence that respondents believed that closure of the ILF would lead to direct discrimination, harassment or victimisation of disabled people. However, a significant number of users did provide more detailed testimony to show how they believed their ability to live independently and to participate fully in society would be compromised."
Like the submissions to the Minister, the EA contained examples of the concerns expressed by ILF users about the loss of their independence and control over their daily life, and specific quotations from the responses to the consultation. These included the following:
"Before I had ILF my parents who both work full time had to help me with the most basic of tasks (getting undressed, eating dinner, assistance getting to the bathroom during the night) making me feel like a burden to my own family. My social life hit a stand still as I was unable to go out and meet friends as I was too unwell to really leave the house."
"…people like me will end up sitting alone looking out of the window for most of the day unable to even go to the toilet. Until now, being severely disabled… and unable to walk or use my hands or arms, I've been able to lead a fulfilling life… [without the ILF] I will be imprisoned at home, and will even have to give up my dogs."
At paragraph 65, it was noted that "[c]learly, the personal view of ILF users and their representatives are important considerations." At paragraph 73, it was noted that:
"…the ILF funds some aspects of care that some local authorities do not and may also provide different levels of flexibility in the use of such funding. The ILF may also provide a greater level of funding than would be available if the local authority had sole responsibility for meeting an individual's care and support needs. As set out earlier in this document, many ILF users responding to the consultation on the future of the ILF made representations about how they believed closure would affect their daily lives."
In relation to England, closure of the ILF was said to be "likely to have an adverse effect on ILF users because of monetary reductions in the amount of support a person receives and because of changes in how that support is delivered". The consultation response of the Local Government Association ("LGA") and the Association of Directors of Adult Social Services ("ADASS") was quoted:
"As ILF recipients transfer into the LA system in 2015, and are subsequently reviewed against the [local authority assessment] criteria, the value of the personal budget calculated through the Resource Allocation System will generally be at a lower level than the initial ILF/LA budget" [emphasis added].
In relation to Scotland and Wales the following was said:
"It is not possible to determine the impact of the closure of the ILF on users living in Scotland and Wales before firm proposals have been made, however, if the transferred funding is not ring-fenced for disabled people there is likely to be an adverse impact on ILF users which is broadly the same as that in England."
The conclusions included the prediction that:
"a large number of users will experience some reductions to the current funding they receive, including those in Group 2. In some cases ILF users have indicated that they consider the impact would be severe."
At paragraphs 61 and 62, it was noted that:
"61. A small number of the approximately 2000 plus people who responded to the 2012 consultation on the future of the ILF, and who expressed concern about changes to current care packages, explained how this would affect their lives in practice. Nevertheless, those who did provide further detail explained how they believed this would impact on their ability to live in their own or family home, on their educational or employment status or aspirations, and on their ability to access social or other community-based activities.
62. In addition to those users who expressed fears about having to move into residential care, referenced above after paragraph 40, a number of users stated that with the support of ILF-funded personal assistants they had been able to access higher education and enter employment. Their concern was that they would be unable to continue in higher education or employment if the overall level of support was reduced. As a consequence they would be disadvantaged as the opportunities that had been afforded to them would be reduced."
The evidence before the court indicates that throughout the entire process the Minister paid very close attention to the potential negative impact on existing users of closure of the ILF. This Minister was by no means passive. He did approach the matter with an open mind and explore the various options that were open to him. He was alive to the concerns expressed by ILF users about the likely adverse impact on their quality of life if he decided to close the ILF and they could no longer afford to pay for personal assistants. He repeatedly requested, and was provided with, further information from his officials, and he did take reasonable steps with regard to the possibility of obtaining additional evidence.
One matter that the Minister was particularly concerned to explore, and which is referred to repeatedly in the documents, was the possibility of making provision for ring-fencing the money. It is self-evident that the Minister would not have been concerned with exploring the viability of that option if he was not fully cognizant of the adverse implications for ILF users if LAs were left with an unfettered choice of how to spend the money that would otherwise have been earmarked for the ILF, and decided to spend it on something else. It is obvious that if each LA received from the DWP the equivalent sum to the proportion of the ILF currently paid to each user in its catchment area, but decided to spend that money on public transport or housing or schools instead, those ILF users would be financially disadvantaged by up to £450-£500 per week. However, the precise extent of the impact of the disadvantage of receiving less funding on each user's ability to live independently or engage in social or other activities would depend on various factors, including the nature of the person's disabilities and whether and to what extent that shortfall would be sufficiently compensated by payments from other sources.
The Minister received extensive advice on the possibility of ring-fencing and on the option of using a grant under s.31 of the Local Government Act to pay LAs for the cost of ILF support packages. There was a note included with the 19 December materials which made it clear that ring-fencing could not be achieved for the devolved administrations. The note also made the point that ring-fencing inhibited LAs from meeting their statutory responsibilities in a flexible way in line with local needs and priorities, and that it could also create an unnecessary additional administrative burden, especially for those LAs with small numbers of ILF constituents.
It was apparent from the note that other Government departments, (including the Treasury) were against the idea of ring-fencing, and their views were summarised. There was discussion about alternatives, and about mitigating factors, including a direct quotation from the consultation response of LGA and ADASS which stated:
"It will be important in the first instance to base the transfer of funds in each LA area upon the commitments to service users in that area. This is important to protect those people during the transitional period, and to avoid an inappropriate scenario of financial winners and losers across the LA system.
As time passes, as people's needs are reviewed and as pre-2015 ILF funding completely loses any identity within people's personal budgets, it may be appropriate to consider a move towards a formula-based distribution of this element of the social care funding, in order to reach an equitable spread of these resources as a new generation of service users and carers are supported within social care services."
It was pointed out to the Minister, among other matters, that LAs are also subject to the PSED, and that they could not take decisions to change an individual's care package without discussion with the user on how their required outcomes can be reached and maintained.
Ms Hipkin and her team had a meeting with the Minister on 6 January 2014, during which it became apparent that the Minister mistakenly believed that some ILF users had already been transferred to LA-only support. Ms Hipkin explained to the Minister that this was not the case, (though the Minister's Private Office seemingly continued to labour under that misapprehension for at least a few more days, see paragraph 78 below). She also told the Minister that there were difficulties with using information from the transfer review programme as a source of evidence of future impacts. She did not mention that she had considered commissioning a further study in November, or that DWP analysts had visited the ILF to explore the utility of such a study. The Minister made it clear to Ms Hipkin and the other officials at the meeting that he would not be rushed into making a decision.
Also on 6 January 2014 an information pack was provided to Minister with handwritten annotations from his Private Office. In the cover note his Private Office wrote:
"Here is the pack that puts together all of the information you have received to inform your decision on the ILF. As you have frequently flagged this pack includes extensive advice on your concerns that ILF funding is not ring fenced. You need to carefully consider the equality impact of your decision and the effect it will have on individuals' lives…it is crucial when making your decision that you take account of disabled people in general but also on particular groups of disabled people."
The note also stated: "if you have any doubt that you need extra information please request it from the team."
Following the meeting, an email was sent by the Minister's Private Secretary to officials which stated as follows:
- "Following the numerous pieces of advice the Minister has received over the past months- the Minister wanted to outline his concerns that despite understanding the policy direction of localisation, that if the money was to be devolved to Local Authorities, it could possibly not be used correctly or reduced in the amount given to individuals as the money was not ring-fenced as raised by Baroness Campbell. [emphasis added]
- The Minister however agreed that from a logical point of view, ILF money would best be localised as local authorities understand the needs of individuals far better than a centralised scheme. The Minister also realises that having local authorities delivering social care, but not having control over the ILF, was an inconsistent scheme.
- The Minister discussed the possibility of ring-fencing the ILF spend within the DCLG budget, however noted that this would be without precedent given the DoH social care funding is not ring fenced (£15bn) and the Treasury do not believe in hypothecated funding and would go against localisation - a core coalition government policy plank.
- The Minister also discussed the possibility of using S.31 to ring-fence ILF funding to LA's. However - this would only be applicable to England and not Scotland and Wales. This would also mean ILF was retained within the department, which would therefore imply we do not achieve the policy objectives: 1) of localisation which better informs decisions & 2) ensuring join up with social care. 3) New burden costs for local authorities due to the S.31.
- The Minister was provided with written advice on the implications of keeping ILF funding within the department and the impact on individual users that this could have.
- AP1 - The Minister would like to see 1) How many reassessments have taken place which have reduced an individual's care package 2) Why the decision to reduce the care package were taken;
A separate email from Mike Driver, the Finance Director General, to the Minister in relation to the option of ring-fencing and going down the route of a s.31 grant said:
- AP2 - The Minister would like to see again, every piece of individual advice he has been provided, along with the outcomes of verbal discussions that he has had with officials, in one single information pack - upon which he can take a final decision with his ministerial colleagues on the next steps for the ILF. Can AP1 be included within AP2 - which needs to be with the Minister by Wednesday morning - sorry for tight deadline…"
"given that (a) a s 31 grant would only give limited assurance over how the money is spent and that (b) this could only be applied to the c70% of the ILF funds attributable to England, I do not believe that the substantial financial risks that this would bring would be justified."
On 8 January 2014 officials responded by providing further documentation in response to the Minister's questions. These included a note on ILF expenditure, which set out the impact of a £30 million reduction to the ILF funding if the ILF was retained in-house and made subject to a 10% reduction in line with the general reduction to DWP expenditure in 2015/16. They stated that it was:
"difficult to estimate what the effect of such a reduction would be at an individual level given the wide variation in user packages; the average payment is currently around £320 but packages range from around £90 -£800 a week. So individual reductions could range from around £9 to as high as £80 a week.
The impact on an individual with the highest care packages could be significant; at the higher end of the scale a cut of £80 per week could be equivalent to losing one 8 hour PA shift a week, and would have a significant impact on an individual with 24 hour care needs."
Thus the Minister was told that some ILF users would be up to £80 a week worse off even if the ILF fund was kept within the DWP and paid by way of grants to LAs under s.31, and that this reduction could still lead to an inability to pay for essential personal assistance.
In response to the further information, a note from the Minister's Private Secretary to officials expressed the Minister's thanks for the work that had gone into the documents and added:
"As you know [the Minister] has expressed that it is essential that he takes plenty of time, with the widest possible source of evidence to make this decision.
The Minister will consider these documents once more and consult with the Secretary of State, before making his final decision. In particular he will take a fine tooth comb to considering the impacts on individuals lives, and their ability to live indep, whatever his decision
As you know [the Minister] has been concerned around the need to ring fence funding from the ILF if it were to be devolved and he has outlined that he will ensure he is particularly stringent in considering the limitations of a decision that did not ring fence the ILF funding before coming to a decision." [emphasis added].
It is apparent from what happened next that these statements about the rigour of the Minister's consideration were not just window-dressing. Following a private one-to-one meeting between the Minister and the Secretary of State, the Minister asked for a pause to consider the implications of the decision for the ILF. An email sent on 9 January from the Minister's Private Office to officials said this:
"The Minister is concerned by the constant references within his pack to the lack of evidence available on the impacts of a decision – and therefore feels that a pause whilst more evidence can be gathered is the most appropriate way forward."
Thus the Minister did address his mind specifically to the question whether further evidence should be obtained on the likely impacts of a decision to close the ILF. Ms Hipkin was not copied in to that email, but she was asked verbally by the Minister's Private Office to provide further advice on a number of issues, including the potential for piloting the closure on a small sample of ILF users in order to test its impact, and about what officials had learned from the transfer review programme in relation to "the transfers that had already taken place" (of course, none had). Ms Hipkin and her team prepared some further powerpoint slides in response to those requests.
In order to implement a pilot scheme, it was obvious that sufficient notice of partial closure of the ILF would need to be given to ILF users in the selected pilot areas. Since a commitment had been made that ILF funding would continue until 31 March 2015, the pilot schemes could not commence until April 2015. Moreover, the pilot would not have been a true pilot if it commenced before the Care Bill became law and before the relevant LAs had made funding decisions based on the £262 million allotted for the relevant year. Thus the pilot could not have accurately predicted the quantitative impacts of the decision to close the ILF; its utility would have been in providing hard evidence of the qualitative impact (i.e. demonstrating whether users' fears about loss of independence were realised).
During a meeting with Mr Driver on 17 January 2014, the Minister was shown the powerpoint slides on the ILF, including consideration of piloting the closure of the fund. The slides had been shared with the Minister's Private Office a few days previously. The Minister was informed that piloting the change "in order to obtain evidence of the impact on users could only be achieved by transferring some ILF users/ users living in a particular LA areas to the new arrangements in advance of the proposed closure date." This raised the following issues:
i) Piloting the closure of an organisation would be an unusual step;
ii) Variations in peoples' circumstances/disabilities and in LA policies/ practices were likely to limit the usefulness of any pilot evidence in demonstrating the likely impact of closure on ILF users more generally;
iii) Piloting the changes in 2014/15 would not reflect the measures in the Care Bill that will be introduced in England in April 2015; and
iv) It would have limited application for users in Scotland and Wales as the devolved administrations are likely to develop their own arrangements for supporting former ILF users.
There was also extensive discussion at the meeting of a document prepared by officials headed "testing the impact of closing the ILF" which referred to the Transfer Review Programme that the ILF had been undertaking prior to the Court of Appeal's decision. The document pointed out that all activity relating to closure of the ILF had ceased with immediate effect following that decision, and stated that all ILF users continued to be supported by the ILF and the vast majority- around 94% - were also supported by their local authority. Thus if there was any residual doubt in the Minister's mind about Ms Hipkin's advice to him on 6 January that no ILF user had yet transferred to LA-only support, this would have disabused him. The note went on to make the same points about the potential pilot scheme that were highlighted in the slides.
At the meeting, Mr Driver agreed to investigate whether it would be possible to replicate the Social Fund model with regards to the ILF. He did carry out those investigations but subsequently confirmed to the Minister (at an impromptu meeting on 21 January 2014) that the model was unlikely to be viable, inter alia because of the huge variation amongst various LAs, the fact that the social care budget is not ring-fenced, much of the funding is in devolved territories, and ring-fencing was against the general government position on funding allocations.
Following the 17 January meeting, in an email from the Minister's Private Office to Mr Driver (and others) the Minister's Private Office confirmed that the Minister had been advised about "initial concerns around the practicalities of this [piloting] including regional disparities (inc devolution), funding guarantees to date and the difficulty in procuring meaningful data using volunteers." That email highlighted to officials that they should be prepared to deal with further questions from the Minister.
However, following his further discussions with Mr Driver about the Social Fund model on 21 January, the Minister confirmed to his Private Office staff that he was satisfied that piloting was not feasible and should not be pursued.
In mid to late January 2014 there were further discussions between senior officials and the Minister's private secretaries. On 22 January 2014 the Minister requested clarification of the feasibility of different end dates – i.e. bringing forward the closure of the ILF to the earliest achievable date in 2014 or deferring closure until June 2015. A further submission to the Minister on timing and closure issues and an assessment of the effects of bringing forward or deferring closure was delivered to his Private Office on 24 January. On 29 January the Minister requested (and was provided with) information about potential media flash points.
On 4 February 2014 the Minister requested an updated EA and briefing pack. This was provided to him on 6 February, and on 11 February he made the decision in principle to close the ILF with effect from June 2015. However, that decision was put on hold to allow the Minister to consider a revised EA – the final version, which was prepared on 4 March 2014. In order to support his consideration of the updated EA, the Minister received additional legal advice on the UN Convention on the Rights of the Child, which remains privileged.
On 5 March 2014 an email from the Minister's Private Secretary to officials stated that:
"The Minister has carefully considered the latest equality analysis, which included information about the potential impact on children, alongside the other advice he has received in relation to the Future of the ILF.
Having considered all the material put to him, and having paid particular attention to the three elements of the Public Sector Equality Duty and the UN Conventions, the Minister has decided that the ILF should be closed on 30 June 2015."
In the announcement of his decision on the following day, the Minister specifically noted the adverse impact on current ILF users' ability to live independently and pursue educational, employment and social activities :
"It is clear to me, from considering all of the evidence, that there is considerable concern among Independent Living Fund users, about the potential impact of closing the fund on their independence and on their ability to exercise choice and control over how their care and support is managed. I also recognise that many users believe that closing the Independent Living Fund will affect their ability to continue to live independently in their own homes, to pursue educational and employment opportunities and to participate in social activities."
The challenge to the current decision
The Claimants do not suggest that relevant information was withheld from the Minister by his advisors. Nor is it their case that the Minister failed to have "due regard" to the materials which were before him. They accept that the Minister was aware of the various ways in which the ability of ILF users to live independently could be impacted, and of the gravity of the potential consequences of the closure of the ILF on individual disabled people (being forced to move into residential care, losing the ability to work and pursue education, participate in social activities etc.). The basis of their challenge is that further, and different, information should have been made available to the Minister to enable him to understand the "extent of the impact" that closure would have on independent living. Insofar as decisions were taken not to pursue other potential avenues of information-gathering, Mr Wolfe QC, (who appeared on behalf of the Claimants as he did in Bracking (No.1)) rightly contended that those decisions could not be part of the discharge of the duty to have "due regard" to the need to obtain further information/evidence if they were taken by ministerial advisors such as Ms Hipkin rather than by the Minister himself, bearing in mind that the PSED is non-delegable.
The Claimants relied upon dicta in Bracking (No.1) in support of the contention that the Minister was required to understand the extent of any adverse impact, and that this meant undertaking a quantitative assessment of how many ILF users would be adversely affected and in what respects. At (4), summarising the principles derived from earlier cases, McCombe LJ stated that:
"A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated…."
In paragraph  he stated that there was nothing in the EIA to identify "what precise impact was envisaged to persons potentially affected."
At - Elias LJ said that the PSED requires government to confront the anticipated consequences in a conscientious and deliberate way in so far as they impact upon the equality objectives for those with the characteristics identified in s.147(9) of the 2010 Act. (Emphasis added.) He accepted the criticism of the EIA that accompanied the 2012 decision as "Panglossian" in its view as to the effects of the proposed decision on those who would cease to receive payments from the ILF, observing that there was nothing in the EIA or in the document setting out the response to the consultations which "identifies in sufficiently unambiguous terms the inevitable and considerable adverse effect which the closure of the fund will have, particularly on those who will as a consequence lose the ability to live independently" [emphasis added].
In my judgment there is nothing in Bracking (No.1) or indeed in any earlier authority to support the Claimants' contention that in order to discharge the PSED the Minister or those advising him were required to undertake a more detailed assessment of how many current ILF users would be financially worse off, and to what extent, if the ILF were closed, let alone how many of them were likely to lose the ability to pay for essential personal assistants. That is based on a misunderstanding of what was meant, in context, by the word "extent". It is clear from the analysis of the judgments set out in paragraphs 23-26 above that the focus of the Court of Appeal was on whether the Minister truly appreciated the gravity of the impact of closure on ILF users, particularly the most vulnerable among them.
This is hardly surprising, given that Mr Wolfe's submissions in Bracking (No 1), as recorded in paras - of the Court of Appeal judgment, were to the effect that the documents presented to the Minister "did not give a true flavour of the impact of the closure 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" and that there was nothing that showed that the Minister "personally had a full appreciation of the real threat to independent living for ILF users". This was because, among other matters, the Minister had not been shown responses from the LGA to the consultation which made it clear that reductions in funding would be inevitable. This time round, that omission was rectified. Moreover it could not seriously be argued that the documents presented to the Minister this time did not give a true flavour of the impact that closure was likely to have on very many current ILF users.
However, Mr Wolfe submitted that the materials before the Minister gave an insufficient sense of the scale of the impact of the decision on users of the ILF. He contended that an understanding of the scale of any adverse impact was essential to deciding whether or not to go ahead with the decision to close the ILF; and even if it was to close, whether the money should nonetheless be ring-fenced. In this important respect, there was no material difference to the information placed before the Minister's predecessor.
No criticism was made of the accuracy of the summaries of the results of the consultation that were given to the Minister in the submissions or in the various versions of the EA. They cannot conceivably be described as painting a "Panglossian" view, and Mr Wolfe wisely did not seek to renew that particular criticism. However, he submitted that whilst the consultation process enabled those likely to be affected to express their concerns about what might happen to them, those concerns were no substitute for objective evidence as to what was actually likely to happen. The Minister had no material which would enable him properly to evaluate whether those concerns were well-founded. Mr Wolfe disputed that the Minister was being told to assume that they were.
Mr Wolfe contended that the utility to the Minister of the information in the consultation was "downplayed" in the advice he received, where it was pointed out that in some cases, users' responses to the consultation may have been derived from an outdated view of LA provision and how it is delivered and do not reflect the fact that service users can now increasingly exercise more choice and control over the way they receive support. I do not accept that criticism; there was no attempt by those advising the Minister to dilute or negate the concerns expressed by those who were consulted. Any qualifications expressed were fair and balanced, and drew the Minister's attention to factors that were relevant to his evaluation of the information.
Mr Wolfe referred to the passages in the submissions to the Minister and in the EAs that indicated, for example, that it was "very difficult to assess" the extent to which the fears expressed by ILF users would be realised in practice, that it was "impossible to quantify" the impact on the ability of Group 1 users to live independently or participate fully in society, given the variety of health conditions and disabilities and variations in local provision, or that it was "very difficult to quantify precisely what the impact of closure would be on care and support packages at an individual level" for Group 2 users because "this would involve making speculative or predictive assessments that, for example, compare ILF recipients with other disabled people who do not have access to the ILF or comparing what ILF users receive now with what they could get from 2015 onwards." The Minister was told "as a result it is very difficult to assess the impact in relation to your EA duty".
Both Mr Wolfe and Ms Mountfield contended that it was no answer to the Claimants' criticism for the Defendant to say that it was impossible to obtain data that was 100% accurate or precise, because the statutory duty is not to form an evidentially perfect assessment. The PSED merely requires the decision-maker to undertake enough qualitative and/or quantitative analysis to form a rational appreciation of the degree and extent of the problem, not simply its existence and nature. There was no justification for concluding that because such an evidence-gathering exercise would involve speculative or predictive assessments it would not produce evidence that had some value, and in consequence deciding not to carry it out. The Minister therefore had insufficient information properly to assess the practical effect that closure of the ILF would have on existing users. It was insufficiently precise for the submission or EA to refer to a "significant [adverse] impact on the care and support packages of a very significant proportion of the ILF's existing 18,000 users" or to state that "it is probable that the majority of current ILF recipients… will face some reductions or changes to the current funding they receive and that in some cases ILF recipients have indicated that the impact would be severe".
Mr Wolfe submitted that this was far too vague. Was it likely, or probable, that 18 people would (for example) have to move into residential care, or give up work or higher education or social activities? Or 18,000? Or what proportion in between? Although he acknowledged that the Minister was told that it was probable that the majority of ILF recipients would face some reductions or changes in funding, that "majority" could be anything between 51% and 99%. (I interpolate that a majority would still be more than 9,000 people). Moreover, a reduction in funding might not impact on services, because the level of funding received might still be adequate; and a change in services might not impact on independent living, because the recipient might still get the same level of services delivered in a different manner. Whilst those points are true, the tenor of the materials placed before the Minister effectively indicated that whilst it was impossible to predict the impact with any precision, he should approach the decision by assuming the worst, namely that most ILF users would be worse off financially and that a significant number would be unable to remain in their own homes or pursue the activities that the ILF currently enabled them to pursue.
The Claimants suggested that there were a number of evidence-gathering exercises that could and should have been undertaken as part of the discharge of the PSED. Mr Wolfe pointed out that the Minister himself appeared not to have agreed with his advisers' assertion that he had all the information that he needed, and that at least in January 2014 he felt that a pause while more evidence could be gathered was the most appropriate way forward. The suggestions made by the Claimants were as follows:
i) Using information obtained from the Transfer Review Programme, as the Minister himself had suggested in January 2014;
ii) Asking LAs in the light of their experience of assessments and reassessments outside the Transfer Review Programme and in the light of their up to date planning and budgeting (including now that the amount of money to be devolved to each could be worked out);
iii) Asking the LAs which had previously commented on likely impacts in the consultation, to update their comments in the light of their up to date planning and budgeting (including now that the amount of money to be devolved to each could be worked out);
iv) Asking local authority bodies, such as the LGA and ADASS, which had previously commented on likely impacts, to update those comments in the light of LAs' up to date planning and budgeting (including now that the amount of money to be devolved to each could be worked out);
v) Asking the ILF Trustees, in the light of LAs' up to date planning and budgeting (including now that the amount of money to be devolved to each could be worked out);
vi) Considering the comparable position of disabled people who had not been in receipt of ILF funds because their claims were only made after it had closed to new applicants in June 2010;
vii) Considering the comparable position of disabled people still accommodated in Assessment and Treatment Units;
viii) Asking ILF users (or a sample of them) themselves, in the light of LAs' up to date planning and budgeting (including now that the amount of money to be devolved to each could be worked out).
Mr Wolfe accepted that none of those inquiries would get "accurate"/"precise" information because 100% "accuracy" or "precision" will only rarely be possible, particularly when it comes to predicting the impacts of decisions on large numbers of disabled people. However he submitted that did not justify not taking any of those (or other similar) steps to acquire more information on the likely extent of the impact. However Mr Wolfe failed to give the court any satisfactory explanation of why the outcome of the evidence-gathering exercises that he said the Minister should have undertaken would have left him any better informed as to the scale of the adverse impact of the decision on ILF users. In particular Mr Wolfe was unable to explain why such evidence was likely to be any more reliable than the results of the previous consultation, or so obviously sufficiently reliable to make the exercise worthwhile.
Most of the suggestions would involve re-running a form of consultation; but the Claimants' challenge to the original consultation failed.
Of the various hypothetical evidence-gathering routes suggested, in his oral submissions Mr Wolfe concentrated on obtaining information from LAs as to the likely impact on a sample of ILF users within their catchment areas, in the light of their up to date planning and budgeting. Although the precise amount of money that each LA would receive had not yet been finalised, Mr Wolfe contended that in the light of the Defendant's indication that the spending for the first year 2015/2016 would follow the pattern of current ILF funding geographically, there was sufficient information available for them to be able to make a fairly accurate estimate of how the £262 million was to be divided up between the devolved administrations and the LAs, and roughly how much they would each receive.
Although ring-fencing would not be imposed on LAs, they would still be free to ring-fence the money received either by reference to former ILF users or at least within the general care and support budget available both to former ILF users and other disabled people, including those who may have qualified for the ILF had it not closed to new entrants in 2010. Thus Mr Wolfe submitted it was important to ascertain, for example, whether LAs would be ring-fencing the money voluntarily; that would give at least some evidence-based indication as to how many ILF users were likely to suffer any serious disadvantage, as those living in LAs which did not ring-fence were generally likely to suffer a worse financial impact than those living in LAs which did.
He said that the LAs could be asked how they proposed to spend the money they expected to receive as their share of the £262 million, because they would already have planned ahead sufficiently for the anticipated reductions in their overall funding as part of their general budget-setting exercise, including how those reductions would impact on the care budget. They could also be asked, by reference to a sample of ILF users within their constitutency, to assess that person's needs, calculate his or her personal budget and predict what care package this would provide. However Mr Wolfe did not explain how the sample would be drawn so as to make it sufficiently representative, and how it might be possible to extrapolate data from that sample that was sufficiently reliable for the Minister to be able to draw inferences as to the likely impact on ILF users across the whole constituency of 18,000.
Mr Chamberlain pointed out that although indicative indications had been given as to how much of the £262 million that England, Scotland and Wales would each get, no decision had yet been made as to what each LA in England would get. Thus the assumption underlying Mr Wolfe's submissions that there was additional information available to the LAs that would have enabled them to give any better evidence of the scale of the impact of closure of the fund on ILF users within their areas was factually incorrect. Even if an educated guess were made, if the final decision resulted in different sums being made available to each LA, as remained a possibility, then the utility of the postulated exercise would be substantially undermined. Moreover, a sampling in LAs in England would only relate to the 70% of ILF users who live in England; the Scottish and Welsh assemblies had not yet made any decision about how they would distribute the money and whether they would require ring-fencing.
Mr Chamberlain also referred to the responses in September and October 2014 made by LAs to Freedom of Information requests by two individuals via the website "what do they know?" The requests were as follows:
Following the new decision by the Government to close the ILF (Independent Living Fund) on June 30th 2015 and devolve funding to Local Authorities, please could you answer the following questions.
1: Will monies transferred from the closure of the ILF to your local authority be ring fenced to ILF recipients in your area? If no decision has yet been taken, what is the process and timescale for this happening?
2: Please could you state the process and timescale for meeting with current ILF recipients to prepare personal care plans for 1st July 2015 onwards (bearing in mind the assessments at the Transfer Review visits only indicate desired outcomes and do not produce an actual care package)?
3: Will you be making any special dispensation for allowing ILF users to continue to employ their current & in many cases long standing carers of many years, bearing in mind some may be paid a higher rate than what LA's may usually advise and be family members too?
Although some LAs stated that they did not hold the information requested, approximately 110 LAs had responded to the request by the time of the hearing of the claim for judicial review. Around 20 of these either said that they will ring-fence funds specifically for former ILF users in 2015/16 or that the funds will be ring-fenced to the care and support budget. This figure includes those who have said that ring-fencing is likely to be available for a limited period (e.g. for the first year). Around the same number said that funds for former ILF users will not be ring-fenced. Within this group a number of authorities qualified that response by stating that, whilst the funding will not be ring-fenced, they will seek to preserve current support levels for individuals or will offer some form of transitional protection.
However, the vast majority of those LAs who have responded (around 70) indicated that no decision had been made as yet on the question of ring-fencing. In my judgment that is telling. The quality of the information obtained from a similar exercise directed by officials at LAs prior to the decision taken in March 2014 would have been no better. Possibly even more respondents would have said at that stage that they had not yet decided whether they would ring-fence the funds. How, then, could that information have given the Minister any better assistance in assessing the scale of the adverse impact on ILF users than the information he already had?
The Minister was already alive to the danger that if the money was not compulsorily ring-fenced, at least some of the LAs would not use it to make payments to the former ILF users or even keep it within the adult social care budget. He was also told from the LGA/ADSS consultation response that in any event under the new system funding for their care was likely to be reduced (i.e. the loss of £450-£500 per week was unlikely to be made up from another source). It was obvious that if either of those things happened there was a real prospect that many of the former ILF users would not be able to afford to continue to pay for a personal assistant, and that for some of the most seriously disabled, that might mean having to go into residential care, and for others, giving up doing the other things to enhance their quality of life that the ILF payments currently enabled them to do.
Most responses to the Freedom of Information requests explain that the LA is working with the ILF and attending the (current) programme of Transfer Review and Support visits, with a timeline that expects these to be completed by January 2015. They also indicate that users will need to undergo a further detailed assessment under LA standards and guidance between February and July 2015 or after transfer. The majority of responses indicate that this will be dealt with on a case by case basis and that individual needs and outcomes will be taken into account in the reassessment process (as was the case under the previous Transfer Reviews). Until that process had been undertaken there was no meaningful information that could be provided as to the likely practical impact of any predictable reductions in funding on those individuals.
Therefore, had LAs (or the LGA and ADASS) been consulted additionally as the Claimants suggest at ii, iii and iv, this updated or further consultation would have added nothing meaningful to the information already before the Minister about the likely scale of the adverse impact. The ILF Trustees were no better placed than the LAs would have been to provide reliable data. As for asking ILF users themselves, that would be no different to re-running the original consultation, and they would probably be the worst of the potential sources of reliable information because they would not know as much as the LAs. The Defendant's objection is not, as the Claimants would have it, that a further exercise of this type could not produce statistically perfect information. It is far more basic than that, namely, that the results of the exercise would tell the Minister nothing more, or at least nothing that he could reasonably rely upon, about the number or proportion of ILF users (even in England) who would suffer the envisaged adverse impacts on their independence if he closed the ILF.
The position of disabled people in Assessment and Treatment Units is simply not comparable with ILF users, since they are excluded from ILF assistance. In any event, the needs and wishes of disabled people vary substantially (a matter to which the Minister had specific regard), so the needs and wishes of such people cannot legitimately be equated with the needs and wishes of ILF users. It is therefore difficult to see how a consultation with those in Assessment and Treatment Units would have left the Minister any better informed about the likely scale of the impact on ILF users.
So far as using the previous Transfer Review programme is concerned, the Minister did consider this, as well as the possibility of rolling out a pilot scheme. Since no transfers to purely LA funding had actually taken place, however, there would be no direct empirical evidence available of how a transferred individual had actually been affected by the transition. That is presumably why the Minister concentrated on considering, instead, whether such hard evidence could be obtained by piloting. Obviously, information gathered in circumstances where there had been no transfer would be of less utility than information gathered in circumstances where there had.
As to the predictive sampling exercise based on the transfer reviews that was previously considered and rejected by Ms Hipkin, the obvious practical difficulties and complexities thrown up by data protection issues and the question of "informed consent" from existing users have not been addressed, let alone answered, by the Claimants. A rational decision was taken by officials that using fictional hypothetical case studies would not work, and Mr Wolfe did not seriously suggest that this would have been an appropriate course. Moreover, as Ms Hipkin had pointed out, the nature of individual care plans is that they are highly specific and tailored to individuals, thus it is not possible to extrapolate from samples what the impact of closure would be on a different ILF user with different needs, or whether such needs would be the same at a different point in the future.
Once again, that is not a counsel of perfection, as Mr Wolfe sought to portray it – it is pointing out that the exercise would not assist the Minister in terms of providing him with any more reliable evidence about the scale of the adverse impact or the likely percentage of those within the 18,000 who would have to go into residential care, or cease work, or cease involvement in outside activities. The Claimants submitted that Ms Hipkin exaggerated the difficulties involved in carrying out the exercise she originally envisaged; I disagree. If the Minister came to the conclusion that a pilot scheme was unworkable for all the reasons given to him, the impediments to obtaining any meaningful data from the Transfer Reviews that had already taken place were even worse.
The suggestion made by the Claimants noted at paragraph 101(vi) above was superficially attractive, in that it might at least have produced some comparative evidence of the way in which those currently without ILF support, who would have qualified for such support prior to the closure of the fund to new entrants, manage their lives without it. In theory such an exercise could have provided some evidential basis for predicting how withdrawal of that financial support might be expected to impact upon those from whom it was withdrawn – provided that the nature and extent of the disabilities of the non-ILF individuals sampled could be sufficiently equated with disabilities of comparative ILF individuals living in the same LA catchment area.
However, there were virtually insuperable practical obstacles to carrying out that comparative exercise. It would have been highly problematic to identify comparable individuals who would have qualified for ILF had it remained open after July 2010; eligibility is determined following a detailed individual assessment based on ILF eligibility criteria. It is obvious that the ILF would have no such data relating to people who were unable to apply to it; and LAs do not hold any data that would allow them to determine whether individual users of adult social care services would also have qualified for ILF had they applied prior to July 2010, let alone what the extent of that support they would have received would have been. Even if they had held such data, the LAs would have had to pass it to the ILF to undertake the individual assessments as whether the individual concerned would have qualified, and that would raise similar issues of informed consent and data protection.
In this context, I must address the attempt by Ms Mountfield to rely upon the report of the Joint Parliamentary Committee on Human Rights in 2012. She submitted that it was useful background evidence, and that it provided a source of much useful evidence about the interaction of closure of the ILF (then to new users only) and other changes to benefits and social care provision affecting disabled people, which any Minister giving due regard to the implications of closure of the ILF on the opportunity for disabled people to live independently ought to have considered. In the light of Mr Chamberlain's objections I have refrained from reading the JCHR report. However, if that is what the JCHR report is about, the information in it is not particularly useful background (the background, as set out earlier in this judgment, is uncontroversial). Nor is it likely to help me to decide the issues in this case, which have nothing to do with the interaction of the closure of the ILF to new entrants with other changes to benefits and social care provision affecting disabled people. Ms Mountfield submitted that it was appropriate for the court to use the JCHR report in the way in which Lord Mance had used it in R (Nicklinson) v Ministry of Justice and others  3 WLR 200,  UKSC 38 at . However, I derive no assistance from that authority; the context in which Lord Mance referred to the JCHR report in passing was very different.
Ms Mountfield further submitted that the JCHR report evidenced the Minister's "failure to focus on obvious available sources of information which might have informed his assessment of the interaction of the closure of the ILF and other changes to social care policy and funding". Of course the JCHR report does not evidence anything about what the Minister did or failed to do; what Ms Mountfield meant was that the Minister could and should have looked at the report because its contents were relevant or might have informed his decision. She said that it identified an available "comparator group" relied on by the Claimants, i.e. those who would have qualified for ILF funding had the fund not closed in July 2010. However, for the reasons I have already stated, there were insurmountable practical obstacles to using that comparator group to provide any useful data.
The Defendant relied on OGC v Information Commissioner  QB 98 per Stanley Burnton J at  - and ; R(Wheeler) v Officer of the Prime Minister  EWHJC 1409 at - and R (Cala Homes) v Secretary of State for Communities and Local Government  EWCA Civ 639 at  and . Mr Chamberlain submitted that by application of the law on Parliamentary privilege it was not lawful for evidence to be tendered or received or submissions made concerning proceedings in Parliament for the purposes for which Ms Mountfield sought to use the JCHR report. An opinion expressed by a Parliamentary select committee on an issue that falls to be determined by the courts is irrelevant, and it would be wrong in principle either for a party or the court itself to seek to rely upon that opinion.
I agree with Mr Chamberlain that in the present case there is a very real danger of infringing the rules on Parliamentary privilege if the court were to accede to Ms Mountfield's submissions. However, even if it were permissible, without infringing Parliamentary privilege or putting the Defendant at a forensic disadvantage, to submit that the Minister should have looked at the JCHR report "as a source of useful information", that submission would not have advanced the Claimants' case. The use to which Ms Mountfield wished to put the report was aimed at supporting the Claimants' suggestion at vi) with which I have already dealt in paragraphs 117 and 118 above. It would provide no answer to the Defendant's response to that suggestion, which I have already found to be a complete riposte. I cannot and will not draw any inference as to whether the Minister did or did not look at the JCHR. There is no evidence about that either way; the Defendant is understandably unwilling to engage with the point. Nor would it be right for me to draw any adverse inferences as to the discharge of the PSED, if he did not look at it, from his failure to do so.
I am satisfied that there is no substance in any of the Claimants' criticisms. The Minister had sufficient information to enable him to discharge the PSED and he went about the exercise with the requisite thoroughness, conscientiousness and care. I agree with Mr Chamberlain's submission that this is a misconceived attempt to get the Court to "micro-manage" the information gathering aspect of the PSED and should be resisted, just as the Court of Appeal rejected the very similar criticisms of the EIAs in Hurley & Moore and Zaccheus. In my judgment the information gathered and considered by the Defendant was plainly adequate for the purpose of performing the PSED. Even if, which is highly doubtful, he could have obtained further relevant information, he was under no obligation to do so. As a matter of substance there was compliance.
This Minister went about his task very conscientiously. He had due regard to the need to obtain sufficient evidence to discharge his duty. He personally considered the question whether he should seek to obtain more evidence before he took his decision. He was concerned that he was being told by those advising him that it was impossible to assess the practical impact of closure with any greater precision than what could be gleaned from the consultation process, and he did not simply take that information at face value but decided to test it. Once he appreciated that ring-fencing was unlikely to be achievable, he actively considered, with his advisers, whether he could obtain any better evidence of the impact on a representative sample of ILF users of closure of the fund without ring-fencing, by investigating what actually happened after there had been a transfer to LA-only funding. However, having explored the possibility of obtaining such evidence, he made the rational decision not to seek it. Short of going down the pilot scheme route, which he reasonably decided not to pursue, there was nothing that he could have done that would have left him any better informed than the results of the consultation did. In fact the information before him was sufficient to enable him to discharge the PSED.
In order to make the decision about whether to glean any further information from the Transfer Reviews, the Minister did not need to be told that Ms Hipkin had already considered going down that route and discounted it, or that DWP analysts had visited the ILF. It sufficed for him to be told, as he was, that there were difficulties with using information from the transfer review programme as a source of evidence of future impacts. Not long after that conversation, it can be inferred that the Minister abandoned the idea of using the Transfer Reviews in favour of the alternative of running a pilot scheme. In any event, any further evidence-gathering operation along the lines of the sampling exercise considered by Ms Hipkin would have left him no better informed about the scale of the impact of closure on the 18,000 ILF users or even on the 70% who live in England.
Even if I had held that there was a breach of the PSED because Ms Hipkin, rather than the Minister, took the decision not to commission the specific proposed study of 15-20 ILF users based on the transfer review programme, I have no doubt, in the light of his decision to abandon the idea of the pilot scheme, that the Minister would have reached the same conclusion as Ms Hipkin did – the scheme she rejected would have produced even less reliable evidence than a pilot scheme would.
However, there was no breach of the PSED. It is clear that this time round the Minister had a focussed regard to the potentially very grave impact upon individuals in this specific group of disabled persons, within the context of a consideration of the statutory requirements for disabled people as a whole. What was put before the Minister did give him "an adequate flavour of the responses received" [from the consultation] "indicating that independent living might well be put seriously in peril for a large number of people". He did not need to know how large that number was likely to be in order to discharge his duty, so long as he knew or assumed (as he did), that it was most (or a substantial number of) ILF users.
It is clear that the Minister did properly appreciate the impact of the proposals on the substantial group of disabled persons currently benefiting from ILF funding. He had sufficient information to enable him to make a proper assessment of the practical effect of the proposals on the particular needs of those persons and their ability to live independently. The information provided to the Minister identified in sufficiently unambiguous terms the inevitable and considerable adverse effect which the closure of the fund will have, particularly on those who, as a consequence, will lose the ability to live independently.
The information the Minister considered did "pull no punches"; there can be no question here of advisers telling the Minister what he wanted to hear, or what they thought he wanted to hear, or of the Minister paying lip service to his obligations under s.149 of the 2010 Act or the relevant Articles of the UNCRPD (as at one point Ms Mountfield sought to suggest he did).
As Elias LJ put it in Bracking (No 1) at , the issue was whether "the Minister was sufficiently aware of the very real adverse consequences which closing the fund would have on the lives of many of the more disabled." In my judgment, on the evidence before the court on this occasion, this particular Minister was very well aware of those consequences and of the practical effect that closure of the fund and the consequential reduction in funding provided through LA support was going to have on the ability of many ILF users to live independent lives, including (but not limited to) living in their own homes. He did not need to know precisely how many of them were likely to be affected or to carry out a quantitative assessment of the impact. It sufficed that he knew, as he did, that the impact would be substantial and significant.
Had the Court of Appeal in Bracking (No 1) been faced with the evidence that this court has seen, I have no doubt that the majority decision on this issue would have been different and that Elias LJ's conclusions would have been reinforced. This time, the issue does not depend on the drawing of inferences but on clear and cogent evidence that demonstrates that the Minister discharged his duty.
For those reasons, despite the very able submissions of Mr Wolfe, this claim for judicial review must be dismissed.
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