ON APPEAL FROM HIGH COURT QBD ADMIN COURT
MR JUSTICE BLAKE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KITCHIN
LORD JUSTICE McCOMBE
| (1) STUART BRACKING and others
|- and -
|SECRETARY OF STATE FOR WORK AND PENSIONS
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Lisa Busch (instructed by the Treasury Solicitor) for the Respondent
Helen Mountfield QC (instructed by Clare Collier) for the Intervener, The Equality and Human Rights Commission
Crown Copyright ©
Lord Justice McCombe:
(B) Background Facts
"…to seek views on the Government's proposal as to how the 19,373 existing users of the ILF should have their care and support needs met from 2015. While the Government is fully committed to funding users' care package up to 2015, we do not believe that the continued operation of the ILF as a legacy fund would be sustainable or justifiable."
In the next paragraph this appeared:
"The Government's preferred option for the future support of existing ILF users is that the ILF is closed in 2015, and that ILF funding is devolved to local government in England and to the devolved administrations in Scotland and Wales."
"10. On a number of occasions since the ILF was created the eligibility criteria have been changed to match changing demand and funding allocations. In 2008, in the face of increasing applications and costs, funding was changed from a demand led to a cash limited basis, and the eligibility criteria were changed to focus support on applicants with the greatest needs. Further changes to the eligibility criteria were required when the budget allocation for 2010/11 was reduced by the previous Government. However, ahead of, and in anticipation of the new rules, a very sharp increase in applications put the ILF budget under significant pressure, and in June 2010 the trustees had to take the decision that the fund would be temporarily closed to new users. At this point, it was clear that a strategic decision was needed on the role of the ILF from 2010/11, taking account of changes in the wider care and support system, in particular the roll-out of direct payments across the UK, personal budgets in England and other models of self-directed support in Scotland, Wales and Northern Ireland.
11. Unlike direct payments which are a payment of the cash equivalent of commissioned services, personal budgets let users know up front what funding they are eligible for and give them maximum flexibility over how that funding is used to meet agreed outcomes. Funding can be taken as a direct cash payment, in the form of services or a combination of both. This model of self-directed support incorporates many of the features which made the ILF approach popular, but supports much greater flexibility in how funding can be used to deliver independent living outcomes. The social care white paper, "Caring for our future: reforming care and support", published this week sets out the Government's plans to reform care and support, which includes the intention to put personal budgets on a proper legal footing, and to create a new legal right to receiving care and support through a personal budget. This will be supported by the improved availability of high quality information and advice, enabling people to exercise genuine choice and control over the care and support they need.
12. It was against this policy backdrop that the Government concluded that it was no longer appropriate for a NDPB operating as a trust to administer an increasing amount of social care funding in parallel to the mainstream social care system. The objectives of the ILF could be met within the care system administered by local authorities, in a way that is more responsive to the needs of, and accountable to local people. Alongside that decision the Government committed to fully protecting [sic] care packages of existing users until 2015."
"Question 1: Do you agree with the Government's proposal that the care and support needs of current ILF users should be met within the mainstream care and support system, with funding devolved to local government in England and the devolved administrations in Scotland and Wales? This would mean the closure of the ILF in 2015.
Question 2: What are the key challenges that ILF users would face in moving from joint ILF/Local Authority to sole Local Authority funding of their care and support needs? How can any impact be mitigated?
Question 3: What impact would the closure of the ILF have on Local Authorities and the provision of care and support services more widely? How can any impact be mitigated?
Question 4: What are the specific challenges in relation to Group 1 users? How can the Government ensure this group are able to access the full range of local Authority care and support services for which they are eligible?
Question 5: How can DWP, the ILF and Local Authorities best continue to work with ILF users between now and 2015? How can the ILF best work with individual Local Authorities if the decision to close the ILF is taken?"
"We will publish our response to this consultation in Autumn 2012. Alongside that response, which will set out the detail of our decision, we will publish a full Impact and Equality Impact Assessment. It would be premature to attempt to conduct a full Impact and Equality impact assessment at this stage because the details of our proposal have not yet been developed. The overview below is our initial assessment of the potential impacts for the different equality groups, as far as we are able to tell at this stage."
With regard to disability, the paper went on to say this,
"In general, ILF payments are not paid on the basis of a particular impairment or health condition, but according to support needs. Nonetheless, we know that current users have a range of primary and secondary disabilities and we will be assessing how the closure of the ILF would impact particular groups of users on the basis of their impairments."
"Two core principles lie at the heart of this White Paper. The first is that we should do everything that we can - as individuals, as communities and as a Government - to prevent, postpone and minimise people's need for formal care and support. The system should be built around the simple notion of promoting people's independence and well-being.
The second principle is that people should be in control of their own care and support. Things like personal budgets and direct payments, backed by clear, comparable information and advice, will empower individuals and their carers to make the choices that are right for them. This will encourage providers to up their game, to provide high quality, integrated services built around the need of individuals. Local authorities will have a more significant leadership role to play, shaping the local market and working with the NHS and others to integrate local services."
"It is clear from the responses to consultation that the prospect of the ILF closing is causing current users anxiety, and that the fund has played a really important role in the lives of users and their families. But we also heard that the ILF had had its problems, that the current arrangement is unsustainable and that local authorities face challenges in supporting disabled people in a consistent and equitable manner given the complex way in which ILF funding interacts with the local authority funding for each user.
We have considered all views carefully and, while I understand user concerns, I do not think the current situation is sustainable. Our commitment to maintaining current awards until 2015 remains, but on 31 March 2015 the ILF will close, and from that point local authorities in England, in line with their statutory responsibilities, will have sole responsibility for meeting the eligible care and support needs of current ILF users. The devolved administrations in Scotland, Wales and Northern Ireland will determine how ILF users in each of those parts of the UK are supported within their distinct care and support system. Funding will be devolved to each local authority and to the devolved administrations on the basis of the pattern of expenditure in 2014/15.
To ensure a smooth transition Government and the ILF will be working with the social care sector in England to produce a Code of Practice to guide local authorities on how ILF users can be supported through the transition. I expect that the devolved administrations in Scotland, Wales and Northern Ireland will engage with the ILF to develop processes and guidance reflecting the distinct approaches to care and support in those parts of the UK.
The ILF will also be conducting a transfer review programme over the next 2 years which will ensure that the details of the care arrangements are captured and shared with their local authority and help those users not currently receiving any local authority funding to engage with the mainstream care systems so they can access the services they are eligible for."
"28. The proposal to close the ILF in 2015 and devolve funding to local authorities in England and the devolved administrations in Scotland and Wales will mean that all users have their needs assessed and met through the mainstream care and support system under one eligibility and charging regime. It will allow local authorities to use all the available funding to support every user of the social care system in a fair and consistent way. See paragraph six for information on ring-fencing. This reform is likely to allow local authorities to provide increased funding or provide a better service to some users of the social care system. We cannot systematically identify who will benefit from this reform given the variations in policies and approaches across local authorities and the very large number of users, approximately 1.575m in England, of the social care system. The devolved administrations are free to distribute and use the funding as they see fit. However, we anticipate they would also pass on funding to local authorities to help meet the care and support needs of current users.
29. Current ILF users may face reductions or alterations in their care packages due to the reform. Currently the ILF funds some aspects of care that some local authorities do not and may provide different levels of flexibility in the use of funding compared to the ILF. The ILF may also provide a greater level of funding than the local authorities would do if the user were transferred to their care.
30. Under the reforms laid out in the Department of Health White Paper, entitled "Caring for our future: reforming care and support", there would be a national minimum eligibility criteria introduced in England before this reform was enacted. Group 2 users require at least £200 of local authority funding per week to meet the ILF eligibility criteria. Therefore, it is reasonable to presume that all Group 2 users will be provided with support by local authorities from 2015 in line with their statutory duty to fund assessed care needs if their needs remain similar to their current needs. However, there may be some alterations or reductions to some users' current packages. Some Group 1 users may have needs that would be defined as moderate or low under the FACS criteria as Group 1 users do not have to a minimum level of local authority funding or any local authority contact to qualify for ILF payments. It is unlikely that local authorities would provide any funding for those individuals. This would have a negative impact on those individuals. 1,812 of the 3,008 Group 1 users have some local authority contribution to their care package and are therefore likely to have needs that would be assessed as eligible for support under the national minimum eligibility criteria. The remaining 1,196 Group 1 users are not known to have a local authority contribution. 759 of these users reside in England, 274 are in Scotland, 74 are in Wales and 89 are in Northern Ireland. Those users may have needs which would be assessed at any of the four levels of the Fair Access to Care Services (FACS) criteria. Therefore, some are likely to be eligible for local authority support and some will not. It is not possible to predict which FACS criteria classification those users would fall into when assessed by the local authority due to the wide variation in funding usage and uncertainty over how much of their funding is currently used to fund needs which the local authority would fund under their system.
31. It is not possible to provide information on the care packages that each individual will receive from local authorities in 2015. This is because there are differing circumstances in each individual case and local authority policies differ. Some needs may also change in the time before ILF closure and this will alter any packages that individuals receive in the future from local authorities.
32. There is a potential negative impact on users of the ILF fund although whether there is any actual impact and how great that impact will be is dependent on individual circumstances. There is a potential positive impact for some users of the social care system who are not ILF users as they may get an improved service or level of funding from their local authority due to the greater amount of funding available. The Government's belief is that any negative impacts are justified by the policy aims of providing greater equity and fairness in the social care system and delivering this funding at a local level in a way which is accountable to local people through the electoral system."
(C) The Law
"108. It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken: R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168.
112……It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this."
"149 Public sector equality duty
(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;
(2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department  EWHC 199 (QB) (Stanley Burnton J (as he then was)).
(3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health  EWCA Civ 154 at [26 – 27] per Sedley LJ.
(4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a "rearguard action", following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing  EWHC 2062 (Admin) at [23 – 24].
(5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions  EWHC 3158 (Admin), as follows:
i) The public authority decision maker must be aware of the duty to have "due regard" to the relevant matters;
ii) The duty must be fulfilled before and at the time when a particular policy is being considered;
iii) The duty must be "exercised in substance, with rigour, and with an open mind". It is not a question of "ticking boxes"; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;
iv) The duty is non-delegable; and
v) Is a continuing one.
vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.
(6) "[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria." (per Davis J (as he then was) in R (Meany) v Harlow DC  EWHC 559 (Admin) at , approved in this court in R (Bailey) v Brent LBC  EWCA Civ 1586 at [74-75].)
(7) Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be "rigorous in both enquiring and reporting to them": R (Domb) v Hammersmith & Fulham LBC  EWCA Civ 941 at  per Sedley LJ.
(8) Finally, and with respect, it is I think, helpful to recall passages from the judgment of my Lord, Elias LJ, in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills  EWHC 201 (Admin) (Divisional Court) as follows:
(i) At paragraphs [77-78]" Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para ) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision. 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 greater weight to the equality implications of the decision than did the decision maker. In short, 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. If Ms Mountfield's submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making."
(ii) At paragraphs [89-90]" 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 than 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…….."
(D) The Arguments and my Conclusions on them
i) The failure to reveal in the consultation that the anticipated costs of closure of the ILF were some £39 million;
ii) The Minister had considered submissions from officials as to the possible postponement of closure of the ILF which she was advised was "not in the best interests of" ILF users, without consultation with such users on that point;
iii) The consultation was said to be flawed because it failed to explain why closure of the ILF was being proposed at all;
iv) It was submitted for the Appellants that the Judge failed to give adequate reasons for finding that the consultation was adequate.
"16….The CRPD prohibits discrimination against people with disabilities and promotes the enjoyment of fundamental rights for people with disabilities on an equal basis with others….
17. The CRPD provides the framework for member states to address the rights of persons with disabilities. It is a legally binding international treaty that comprehensively clarifies the human rights of persons with disabilities as well as the corresponding obligations on state parties. By ratifying a convention, a state undertakes that wherever possible its laws will conform to the norms and values that the convention enshrines. "
"Loss of Support - Most individual respondents felt that if transferred to the LA their care package would be reduced or that the outcomes that they currently achieve would not be provided for…
Loss of Current Care Team - Many ILF users have been supported by the same care team for many years and feared their LA would not enable them to retain them after transfer."
"7. …As we expected and given the current challenges facing the care and support system, the majority of ILF users are opposed to closure of the fund, with many doing so on the basis that there could be no guarantee that their current level of funding would be protected into the future. Where users agreed with the principle of closure they felt strongly that funding devolved to local authorities should be ringfenced or their care packages protected…"
"We recognise user concerns about potential reductions in their care packages…We do recognise that upon reassessment by LAs, most users are likely to see some reduction in the current funding levels…
While there can be no guarantees on how the devolved funding is used the LGA/ADASS have stated that LAs will consider using discretion to offer a period of protection or a phased move to lower levels of funding on a case by case basis. They have noted that LAs will need to balance any protection they offer with the needs of other disabled people…"
"Because LAs assess care needs using Fair Access to Care (FACS) criteria, users are unlikely to receive the same level of funding after reassessment. This may undermine care packages and may mean that some users, such as those with particularly high care packages, may not be able to live independently in their own home. [sic: homes]" (Italics added).
"There may be some reduction or alteration in care packages for some current ILF users because local authorities are not always able to provide the same type or level of support to users that the ILF does…"
"You told us that the support provided by the ILF had played a really important role in the lives of users and their families, and that there was real concern that the closure of the fund would undermine the ability of users to lead full and independent lives…".
"8. Provision from April 2015.
Transitional arrangements need to be in place from 1 April 2015 which enables users to plan for and mange any change in their support. The arrangement of a period of phased transition being provided that supports the protection of independent living outcomes is one of the issues for consideration during this transition period.
We believe that it is essential that before the end of the transfer programme all ILF users and their representatives have a clear understanding of how their eligible support needs will be met immediately following the transfer.
Any change to support arrangements made by the local authority should take into account the impact upon care providers making certain that the user is able to meet legal and contractual obligations where provision is reduced or replaced. In particular this includes redundancy payments and notice periods."
"Getting the transition process right will be critical. The Department for Work and Pensions (DWP) has been and will continue to work very closely with the representatives of local government and the devolved administrations on how we can support users through the transition. To guide individual local authorities the Government, ILF and social care sector in England will co-produce and publish a Code of Practice which will provide guidance on how ILF users can be supported through transition over to sole local authority care and support.
In early 2013 the ILF will publish a transition plan setting out how users will be supported over the next two years in preparation for the transfer. This will include how a review programme will ensure that the details of the care arrangements are captured and shared with their local authority, and how those users not currently receiving any local authority funding will be supported to engage with the mainstream care system. On-going engagement with users and organisations representing disabled people will be crucial; in early 2013 the ILF will commence an intensive programme of user and stakeholder engagement on the plans for transfer.
I know that users will face the future with a degree of anxiety, but I want to reassure them that Government as a whole is fully committed to making this process work for them, and to ensuring that they can continue to live the lives they want to between now and 2015 and into the future."
"However, in order to comply with our public sector equality duty any decision you take must be informed by an Equality Impact Assessment. To ensure we do not increase the likelihood of a successful claim it is important that you consider the Equality Impact Assessment and the Impact Assessment before making a decision on the future of the ILF. These have been put to you alongside this submission. "