“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.”
“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?”
“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…”
“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.”
“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.”
“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.”
“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 theEquality Act 2010 and that in some cases ILF recipients have indicated that this impact would be severe.”
“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 of6 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.”
“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…” • 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. • 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.” • 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: • 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: “Mike, Group two also likely to see their packages reduced or changed.”
“Mike you also discussed these concerns.”
“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.”
“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.”
“…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.”
“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”
“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.”
“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.”
“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.”
“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.”
“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.”
“if you have any doubt that you need extra information please request it from the team.”
“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.”
“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.”
“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.”
“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.”
“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 on30 June 2015 .”
“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.”
“A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated….”