High Court upholds decision to close Independent Living Fund

08/12/14

Mrs Justice Andrews today dismissed a judicial review claim challenging the decision of the then Minister for Disabled People (Mike Penning MP) to close the Independent Living Fund.

The ILF is a non-departmental public body operating a discretionary trust intended to support severely disabled people and facilitate independent living. Some 18,000 severely disabled people benefit from it. The decision to close the Fund, and transfer funding to the devolved administrations and to local authorities in England, was first taken in December 2012. That decision was quashed by the Court of Appeal for failure to comply with the public sector equality duty. The decision was retaken in March 2014. The retaken decision was challenged under s. 149 of the Equality Act 2010.

The Claimants argued that the retaken decision was flawed because there was no quantitative information about how many ILF recipients would lose out and and by how much. Mrs Justice Andrews held that there was no obligation to produce a quantitative analysis. It was sufficient to assume (as the Minister had) that closure might well put independent living in peril for a large number of people.  The materials before the Minister were sufficient to enable him to discharge the public sector equality duty and he “went about the exercise with the requisite thoroughness, conscientiousness and care”. 

The Equality and Human Rights Commission had intervened in the proceedings to make arguments based on the UN Convention on the Rights of Disabled People, which it argued contained a principle of “non-regression”. The Minister’s decision was said to be flawed because, on the materials disclosed, he had not directed himself that the decision to close the ILF would breach the Convention. Mrs Justice Andrews held that there was no general principle of “non-regression” in international law, that the provisions of Article 4 of the UNCRPD were aspirational only and that (as an unincorporated treaty) the UNCRPD could not be relied upon to elucidate the scope of s. 149 of the Equality Act 2010, which was not ambiguous. Reliance on a 2012 report of the Joint Committee on Human Rights was impermissible because it would give rise to a very real danger of infringing Parliamentary privilege.

The judgment is here.

The BBC report can be found here.