The Court of Appeal, in Bracking and others v Secretary of State for Work and Pensions [1] found that the Department of Work and Pensions' ("DWP") decision to close the Independent Living Fund was not lawful, overturning the High Court's decision of April 2013[2].

This successful judicial review is a useful and interesting 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 the duties under Section 149 in relation to advancing equality of opportunity for those who share a relevant protected characteristic.

Background

The Appellants were people with disabilities who receive funding under the Independent Living Fund ("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. 

The Appellants' solicitors wrote letters before claim criticising the nature of the consultation and what they claimed to be the inadequacy of the information provided to consultees. The DWP rejected these criticisms and the Appellants commenced proceedings on 4 October 2012. A statement was made by the DWP on 18 December 2012 that despite user concerns, the ILF would be closed with effect from March 2015 as "the current situation [was] unsustainable". On the same day the DWP published the Equality Impact Assessment ("EIA").  The Appellants subsequently amended their grounds of claim on 18 January 2013 to challenge the DWP's decision on the basis of inadequacy of the EIA and the failure by the Minister to discharge the PSED.

At first instance the court found that there had been an "anxious consideration" of the effects of closure of the ILF and that the consultation process had not been flawed. The court concluded that the EIA had considered the threat to users and that the Minister - as a result of reading the EIA - had sought assurances from officials and other parts of the Government that transitional measures would be put in place to support users who would lose funding as a result of the closure of the ILF.

The Appellants and applied for permission to appeal the decision. The Court of Appeal, in its judgment of 6 November 2013, granted permission and also heard the appeal at the same time.

The Appellants' case

The Appellants' key submission was that the EIA and other materials presented to the Minister provided an inadequate base from which the Minister could discharge the PSED.

The Appellants also argued that the consultation process was inadequate for various reasons but the Court of Appeal dismissed this argument. Lord Justice McCombe considered that the consultees had been properly consulted and that the explanation given by the Government for the proposed closure of the ILF had been short but adequate.

Judgment

The Court of Appeal considered Section 149 of the EA 2010 and the case law surrounding the PSED duties in detail. 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"[3].

The Court of Appeal agreed with the Appellants that documents which the Minister 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"[4].  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. Ultimately, it was not possible for the Minister to discharge her duty without the full information being presented to her.  As this was not done, the Minister was lacking the "essential foundation" for the discharge of the PSED.  The appeal was allowed and the decision quashed.

Conclusion

This is a significant decision which once again highlights the effects of the EA 2010 on public authorities and their decision-making. The PSEDs must be taken seriously, even if the decision taken would have been the same as if these duties were not considered.  McCombe LJ said he had come to his decision 'reluctantly' and indicated that he felt that the Minister would not have been prevented from making the same decision if she had looked at all the evidence and considered her equality duties properly. Nevertheless the Court of Appeal upheld the clear wording and purpose of the EA 2010 and quashed the decision in light of a lack of evidence that the Minister had rigorously and conscientiously considered its provisions.  

The Government has indicated that it will not be appealing this judgment and the ILF remains intact for now.