Disabled people’s legal rights if we can’t #SaveILF

by stevebroach

Although the Independent Living Fund operates in Scotland and Wales, the post is focussed on the transfer to Local Authority support in England.

The government has decided to close the Independent Living Fund (ILF) with effect from 30 June 2015. The description of the ILF on the gov.uk website (link above) is that the ILF ‘delivers financial support to disabled people so they can choose to live in their communities rather than in residential care’. The contradiction between closing the ILF and the aims of the No Right Ignored green paper is stark and obvious. The sum being transferred to local authorities is less than the current funding through the ILF and is not ringfenced.

Disabled people and organisations are campaigning under the #SaveILF banner to try to reverse the closure decision. The first judicial review challenge to the closure decision succeeded in the Court of Appeal. The second judicial review challenge failed after the government re-made the closure decision. This is a rare example of a fundamental weakness with judicial review – that a challenge to the process which succeeds may just result in the decision being taken again lawfully. The most recent legal step in the campaign was a complaint to the UN Disability Committee launched last week by two disabled women.

It goes without saying that I strongly agree with all those challenging the closure decision. The ILF has been closed to new applicants since June 2010 and doesn’t support anywhere near enough people – but you deal with the unfairness this creates by providing better community support for all disabled people, not by taking away vital funding from those whose lives have been fundamentally changed for the better by the ILF. The numbers involved are also significant – the ILF currently supports around 18,000 people. How realistic is it to expect that local authorities will manage well the transfer of responsibility for this group of severely disabled people at a time of deep cuts to their budgets across the board?

However there has been no clear promise that I have seen from any of the major parties to reverse the ILF closure decision after the May election. It seems that only Caroline Lucas for the Greens has expressly supported retaining the ILF. Hope that Labour would reverse the closure decision if in government after the election appears to have been dashed. I hope this changes – but given the Fund closes at the end of June we can’t afford to wait to work out what happens next if (as seems highly likely) the closure decision stands.

The headline message is that the responsibility for providing support for disabled people who have received ILF funding will transfer solely to Local Authorities. My view is that the law is likely to require in most cases that a very similar level of support is provided after transfer – although that may well not be what happens in practice without challenge from disabled people, advocates and friends, families and allies. In particular it will be unlawful if the closure of the ILF results in disabled people being forced into residential care. I’ll explain my thinking on this below – but first we need to look at what the official guidance says on the ILF closure process.

The starting point is the statutory guidance issued under the Care Act 2014, as it will be unlawful for Local Authorities not to follow this guidance in the absence of a considered decision not to do so. There is also non-statutory guidance on the ILF transfer programme issued by the Fund in April 2014 and aimed at current ILF recipients. This guidance describes a six stage transfer process which should be followed.

The Care Act guidance deals with issues relating to ILF closure in chapter 23 on ‘Transition to the new legal framework’. The section on the ILF starts at para 23.26. In the second paragraph (23.27) the guidance states ‘Local authorities will have to meet all former ILF users’ eligible needs from 1 July 2015. Funding in respect of former ILF users will be distributed to local authorities on the basis of local patterns of expenditure following transfer, to allow them to meet users’ care and support needs’ (emphasis added).

It is therefore essential that there is a proper determination of which needs are ‘eligible’ before the ILF closes for every current ILF recipient. As the guidance states at 23.28, ‘Local authorities will need to plan for the transfer of adults currently receiving ILF payments to ensure that their care and support continues and is not interrupted during this period’.

To do this Local Authorities will have to complete an assessment under the Care Act and apply the new national eligibility criteria to determine which needs are eligible for support.  As I have blogged previously, I think that the new national eligibility criteria are more generous that the current ‘substantial’ band. Importantly the outcomes which can make a person ‘eligible’ include:

  • Being able to make use of the home safely
  • Maintaining a habitable home environment
  • Developing and maintaining family or other personal relationships
  • Accessing and engaging in work, training, education or volunteering
  • Making use of necessary facilities or services in the local community
  • Carrying out caring responsibilities for a child

These are the kind of independent living outcomes which the ILF has previously funded.

The duty under section 18 of the Care Act 2014 is to ‘meet needs’, not provide a particular service. This raises the possibility that a Local Authority would purport to meet a person’s needs by a means which does not promote an independent life for them – at its most stark by offering only a package of residential support in a care home on grounds of cost. We know some local authorities are already operating ‘maximum expenditure policies’ where the cost of care at home is capped at the level of the cost of a care home placement for that person.

Para 10.27 of the guidance is of great importance in cases like this:

In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles. The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value. (emphasis added)

This final sentence is obviously key. Needs should be met in the way which delivers the desired outcomes for the best value. None of this will be achieved by forcing a disabled person into a care home or other residential accommodation against their will. This is reinforced by a later paragraph of the guidance, para 11.7:

At all times, the wishes of the person must be considered and respected. For example, the personal budget should not assume that people are forced to accept specific care options, such as moving into care homes, against their will because this is perceived to be the cheapest option. (emphasis added)

So in addition to this clear message in the Care Act guidance, what are the ‘related public law duties’ that local authorities will have to comply with when someone transfers from ILF support? As well as the general requirement to act rationally, reasonably and fairly, one of the central requirements will be to respect the person’s human rights. This includes the ECHR rights directly incorporated into English law by the Human Rights Act 1998, most notably Article 3 concerning freedom from inhuman and degrading treatment and Article 8, which mandates respect for the individual’s family and private life and their home. Article 5 ECHR is also important, as it protects a person’s liberty which may be deprived if they are placed in a care home against their will. These rights bring with them ‘positive obligations’ on the state to take steps to avoid them being breached.

However the recent Supreme Court judgment in the Benefit Cap case (R (SG) v Secretary of State for Work and Pensions) makes clear that in interpreting the ECHR rights incorporated by the Human Rights Act 1998 the rights under the other human rights conventions may also be highly relevant (blog post on what the Benefit Cap judgment means for international human rights in English law to follow). The most obviously relevant right in the UN Convention on the Rights of Persons with Disabilities (CRPD) in ILF transfer cases will be Article 19, headed ‘Living independently and being included in the community’. The essence of Article 19 is that disabled people should be able to choose where they live on an equal basis to others, not to be forced into particular living arrangements (this is also the principle behind the #LBBill being promoted by the Justice for LB campaign). So any decision taken by a local authority which requires a former recipient of ILF funding to live in a place or in a way which is different than they would choose may well breach Article 19 of the CRPD, read with Article 8 ECHR.

Would such a decision breach the Care Act itself? Possibly, depending on how the courts interpret the well-being duty in section 1. This duty states that in carrying out their Care Act functions in an individual case the local authority must ‘promote that individual’s well-being’. ‘Well-being’ is then defined in a lengthy list of factors, including ‘personal dignity’ and ‘control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided)’.

It may well be that the courts hold that forcing a person into residential care against their will breaches the well-being duty. However notably absent from the list in section 1(2) is the principle of choice which is so central to the Article 19 CRPD obligation. This is why there must be some degree of caution about the optimistic words of the Care Act guidance at paras 1.18-1.19; ‘Although not mentioned specifically in the way that “wellbeing” is defined, the concept of “independent living” is a core part of the wellbeing principle…The wellbeing principle is intended to cover the key components of independent living, as expressed in the UN Convention on the Rights of People with Disabilities (in particular, Article 19 of the Convention)’. However the guidance should be read at face value until a court expresses a different view.

The link between the well-being duty and the ILF transfer process is expressly made in the Care Act guidance at 23.29. However the guidance also makes clear not only that resources are generally relevant to local authority decisions (see para 10.27 cited above), but also that direct payments may not be made ‘where the costs of an alternate provider arranged via a direct payment would be more than the local authority would be able to arrange the same support for, whilst achieving the same outcomes for the individual’ (para 11.26). We may well therefore need the full force of the human rights obligations to stop disabled people’s right to independent living being undermined by the ILF closure.

The Care Act guidance describes a ‘Transfer Review and Support Programme’ being run by the ILF to assist users to transfer to local authority support. This should involve a face-to-face meeting with an ILF assessor and a local authority representative. However this cannot take the place of a full assessment by the local authority and a determination of eligible needs under the Care Act eligibility regulations. This is plainly required given that the closure of the ILF will be a highly relevant change of circumstance for those who currently benefit from it.

I hope that everything I have written above will become entirely irrelevant because the next government will heed the call to reverse the ILF closure decision. If it doesn’t, given the overall pressures on local authority budgets it seems likely that many post-ILF cases will be fought out between disabled people and their local authorities, including in the courts. This does not seem to be the most auspicious of likely starts for the new Care Act era.

The need to save ILF has been highlighted powerfully recently by Tom Shakespeare on Radio 4’s A Point of ViewThe Independent Living Strategy group – a group of disabled people and allies from a range of organisations concerned about independent living – are about to launch a survey about people’s experiences of independent living and specifically the ILF transfer. This film by Kate Belgrave and Ros Wynne-Jones shows disabled people making the case for why ILF should be retained. As Daphne Branchflower states in the film, ‘everyone…deserves to be able to reach their full potential. The ILF definitely helped me to reach my full potential’. Will we be able to say the same about the Care Act in five or ten years time?

I hope this post is some help for disabled people and their allies who are planning for the transfer from ILF to local authority only support from 1 July 2015. We must not let the dire (and understandable) predictions that local authorities will breach disabled people’s human rights after ILF transfer come to pass. Comments on how the process is working and any observations on these legal issues most welcome below.

#SaveILF

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