In a very significant decision on 6 November 2013, which highlights the effects of the Equality Act 2010 on public authorities and their decision-making, the Court of Appeal has found that the Department of Work and Pensions’ (DWP) decision to close the Independent Living Fund was not lawful, overturning the High Courts’ decision of April 2013. The Government had indicated that it would not be appealing this judgement and the Independent Living Fund (ILF) will remain intact for now.
People with disabilities may receive funding under the ILF: a non-departmental Government body which provides money to help disabled people live independent lives in the community. The ILF operates an independent discretionary trust funded by the DWP and managed by a board of trustees. Its aim is to combat social exclusion on the grounds of disability and the money is generally used to enable disabled people to live in their own homes and to pay for care which would otherwise need to be given at residential care homes.
Over 19,000 disabled people receive assistance from the fund and the money is allocated by local authorities. Due to budget cuts, local authorities have had limited ability to support individuals unless their needs are very severe and so the ILF has served to supplement this provision.
In 2010, the Government indicated that the ILF was considered financially unsustainable and that it would consult to develop a new model for the future care and support of ILF users. The consultation launched in July 2012 sought the views of: ILF users; their families and carers; interested individuals; and organisations, on the proposal to close the ILF in 2015 and on how best existing users of the ILF could have their needs met after closure. The Government stated that its preferred option was to devolve funding to local government.
However, the Government has since stated that money will be devolved to already cash-strapped local authorities in England, which means that it would cease to be ring-fenced and would be subject to normal constraints and cuts within a local authority budget. And the local authorities have already said that they will not be able to offer the current level of financial support provided on ILF, potentially forcing many disabled people to move out of their homes and into residential care homes.
The Government initially decided to close the fund by March 2015 but this was delayed until June 2015 after five disabled people challenged the Government’s decision in the High Court.
The Court of Appeal unanimously quashed the decision to close the fund and devolve the money, on the basis that the minister had not specifically considered duties under the Equality Act, such as the need to promote equality of opportunity for disabled people and, in particular, the need to encourage their participation in public life. The court emphasised that these considerations were not optional in times of austerity.
On March 6, 2014, the Government announced in authoritarian style that it would go ahead with the closure of the ILF fund on 30th June 2015, saying that a new equalities analysis had been carried out by the Department for Work and Pensions. The government has shown a complete disregard for disabled people and the Court of Appeal decision. The government had failed to comply with the equality duty – and this was a rare victory entirely due to disabled people fighting back.
Unite national officer for equalities Siobhan Endean said: “Unite believes that the closure of the Independent Living Fund will have a catastrophic impact on disabled people and their right to live independent and fulfilling lives.”
“Ministers decided not to appeal, but have instead carried out a new equality impact assessment to justify the closure. Many other changes to benefits and local authority services are also undermining independent living.”
The papers released during the judicial review reveal that the Government was banking on the closure of the ILF receiving very little attention from the public and mainstream media because it only affects relatively few people. They are calculating on the British public not caring enough about our human rights. We hope they have miscalculated.
Labour has called for the retention of this vital fund which benefits the most severely disabled. To show her support for the retention of Independent Living Fund, which is relied upon by over 19,000 severely disabled, Labour’s Dame Anne Begg is the primary sponsor an Early Day Motion calling on the Government to reverse their decision to close the fund in June 2015. You can view the EDM here. You can also ask your MP to sign it.
The successful judicial review is a useful demonstration of how strictly the courts will consider whether or not a public body has complied with its Public Sector Equality Duties (PSED) imposed by the Equality Act 2010 (EA 2010). There must be hard evidence that the “decision maker” has fully complied with the requirements contained in the legislation, specifically, in this case, the duties under Section 149 in relation to advancing equality of opportunity for those who share a relevant protected characteristic.
In particular, Lord Justice McCombe restated that the court must ensure that there has been a proper and conscientious focus on the statutory criteria, rather than simply a “tick box” approach. He noted that the EA 2010 placed real obligations on the Minister under section 149 to consider, amongst other things, “the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it” and to, “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.
The Court of Appeal agreed with the Appellants that documents which the Minister (Esther McVey) had seen in the run up to her decision proved that, “the Minister did not receive a sufficient understanding of the true threat to independent living for ILF users posed by the proposal to close the fund” The Minister had received from her officials a somewhat toned down summary of the response to the consultation which did not give her a “true flavour” of the real level of threat to users posed by the proposal to close the ILF. The Court agreed that the detail set out in the local authority responses to the consultation which clearly articulated concerns about the effect of closure on users, was not seen by the Minister.
As a result, the Court of Appeal rejected the DWP’s argument that the Minister was fully aware of the effects of the proposal. The DWP’s argument was based largely on “common sense inferences” that by virtue of her role as Minister for Disabled People and the fact that she was considering the impact of closing a fund aimed at the independent living of disabled people, it will have been obvious to her that independent living may not be possible for all users. The Court of Appeal noted that a heavy burden is imposed by the EA 2010 on public authorities and therefore, there has to be hard evidence that the public body has discharged that duty.
The Labour Party included a commitment to an Equality Bill in its 2005 election manifesto. The Discrimination Law Review was established in 2005 to develop the legislation and was led by the Government Equalities Office. The review considered the findings of the Equalities Review Panel, chaired by Trevor Phillips, which reported in February 2007.
The Act was intended to simplify the law by bringing together previous existing anti-discrimination legislation. The primary purpose of Labour’s Equality Act 2010 is to codify the complicated and numerous array of Acts and Regulations, which formed the basis of anti-discrimination law in Great Britain previously. One of the most radical aspects of the Equality Act was its recognition of class – socio-economic disadvantage, apart from other protected and universally accepted characteristics.
This legislation has the same goals as the four major EU Equal Treatment Directives, whose provisions it mirrors and implements, although it extends beyond EU Directives. It requires equal treatment in access to employment as well as private and public services, regardless of the protected characteristics of age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation.
However, it’s worth noting that the achievements of the British Equality Acts 2006 and 2010 are being seriously undermined by actions of the Coalition Government at a time when recession and cuts in public services are having a disproportionate impact on women, working families, jobseekers, ethnic minorities, the elderly, and disabled people. The Home Secretary said 5 May 2011 that ‘it is not the intention of the Government to abolish the Equality Act’. But we are witnessing “death by a thousand cuts.”
As Sir Bob Hepple QC has pointed out, some provisions of the Labour Government’s EA are not being brought into force, (only roughly 90% of the Act came into force, after the Coalition quickly said it would be “reviewing several sections of the legislation passed by parliament in April 2010,”) whilst other provisions have been repealed by the Enterprise and Regulatory Reform (ERR) Bill, including the duty on public authorities to have due regard to the need to reduce socio-economic inequalities.
The failure to implement the Act in full certainly sends out a clear signal that creating a more equal society is a very low priority for the coalition.
The budget of the Equality and Human Rights Commission (EHRC) has being reduced by over 60%, its staffing cut by 72%, and its powers restricted. As from April 2013 claimants in discrimination cases in tribunals will have to pay an issue fee of £250 and a hearing fee of £950.
The public sector equality duty needs to be strengthened and strategic litigation used to force the pace of change. The further threats to the legal infrastructure make it all the more important to rally and mobilise all disadvantaged groups around equality as a fundamental human right at this crucial time. The “death by a thousand cuts” is not incidental. Once again we are seeing one element of a Tory-led planned and coordinated attack on our most vulnerable citizens, with plain evidence that this government is deliberately bypassing our rights in order to impose cruel austerity cuts on those with least.
And just in case you had any doubts about this government’s strong authoritarian tendency, it emerged last month that Government proposals making it much harder for ministers are to be challenged in the courts and have been slammed in a report by parliamentarians. Labour have strongly attacked the proposals.
A report by the Joint Committee on Human Rights extended the criticisms already voiced by MPs to Chris Grayling, the Justice Secretary behind the reforms. It says ministers’ proposal to only make legal aid payable if permission for the judicial review is granted is “a potentially serious interference with access to justice”.
Grayling combines that role with his title of Lord Chancellor, a position which has for centuries defended the judiciary.
Now MPs and peers have declared a “thoroughgoing review” of the dual role is needed because, they suggest, Graylings’ moves to undermine the rule of law are politically motivated.
Importantly, the Committee also concluded that the legal aid changes – which are now in effect – have been made without sufficient opportunity for parliamentary scrutiny. The Report recommends that the Government void the Regulations and make amendments to the Criminal Justice and Courts Bill.
Both Grayling and May have made admissions that they could not conceive of a situation where a majority Conservative government would not repeal the Human Rights Act and withdraw from the European Court of Human Rights.
The Human Rights Act and the ability of UK citizens and residents to take appeals to the European Court of Human Rights has received considerable propagandarised criticism in the UK media and the Conservative party, who claim that the Act has “ushered in a regime of “political correctness”” and who have focussed on a small number of high-profile cases involving foreign prisoners and detainees to try and discredit it.
The effect of the UK Human Rights Act 1998 was to make the rights specified in the European Convention of Human Rights enforceable in UK courts. The act is described in official Ministry of Justice information releases as “the most important piece of constitutional legislation passed in the United Kingdom since the achievement of universal suffrage in 1918” and gives UK citizens and residents protection against abuses of civil rights and personal freedoms by state and governmental authorities.
This Government wants to take that protection away, it considers itself above the law, and is relentlessly working to undermine our access to justice and protection from the Government itself. The real horror hits home when you ask yourself why.
They cannot be allowed to remain in Office another term.
Many thanks to Rob Livingstone for his excellent pictures