Factual and Procedural Background
This opinion concerns an application for permission to appeal against an Order of Mr Justice Blake dated 24 April 2013, which dismissed the Appellants' application for Judicial Review of a decision made on 18 December 2012 by the Respondent, a Minister of State in the Respondent's Department responsible for Disabled People. The decision challenged was to close the Independent Living Fund ("ILF") by the end of March 2015. The Appellants are persons with disabilities currently receiving ILF funding, which assists them in living independently.
The ILF is a Non-Departmental Government Body operating an independent discretionary trust, funded by the Respondent's Department and managed by trustees. Established originally in 1988 and reconstituted in 1993, it works with local authorities to provide care packages and direct payments to disabled persons to support independent living and combat social exclusion. Over 19,000 people currently receive assistance through the ILF.
In December 2010, a Ministerial Statement indicated financial unsustainability of the ILF and proposed a consultation on a new care model. Local authorities have statutory duties to assess and provide community care services, with eligibility criteria set out in "Fair Access to Care Services" ("FACS"). The ILF supplements local authority provision, especially for those with needs not met by local authorities due to budget constraints.
In July 2012, the Respondent's Department launched a consultation proposing closure of the ILF in 2015, with funding devolved to local governments and devolved administrations. The consultation sought views on the proposal and its impact on ILF users, their families, carers, and other stakeholders. The consultation document explained the history of the ILF, reasons for proposed closure, and the Government's wider reforms in social care, including personal budgets and integration within statutory care systems.
Following the consultation, the Minister announced the decision to close the ILF on 31 March 2015, committing to maintain current awards until that date and devolve funding to local authorities thereafter. Transitional arrangements and a Code of Practice were planned to guide local authorities and support ILF users through the transfer.
The Appellants challenged the decision on grounds including alleged failure to discharge the public sector equality duty ("PSED") under section 149 of the Equality Act 2010, inadequacy of the consultation, reliance on unimplemented Government policy proposals, and insufficiency of the Judge's reasons for dismissing their claims. The Equality and Human Rights Commission intervened in support of the Appellants. Proceedings commenced on 4 October 2012.
Legal Issues Presented
- Whether the Respondent lawfully discharged the public sector equality duty imposed by section 149 of the Equality Act 2010 in deciding to close the ILF.
- Whether the consultation preceding the decision was adequate and complied with legal requirements.
- Whether the decision unlawfully relied on the assumption that Government White Paper proposals and draft legislation would be enacted.
- Whether the Judge below gave adequate reasons for dismissing the Appellants' judicial review claim.
Arguments of the Parties
Appellants' Arguments
- The Respondent failed to discharge the PSED properly, lacking adequate information and conscious consideration of equality matters specific to ILF users.
- The consultation was inadequate, specifically for failure to disclose the estimated costs of closure, failure to consult on possible postponement of closure, failure to explain reasons for closure, and inadequate reasons given by the Judge.
- The decision unlawfully assumed that Government White Paper proposals would be implemented without proper consultation or legal basis.
- The Minister was not properly informed of the significant risks to independent living for ILF users posed by closure.
Respondent's Arguments
- No obligation existed to include closure costs in consultation as they were internal accounting matters irrelevant to consultees.
- Postponement of closure was not a proposal at consultation stage but a reaction to consultation responses, so no further consultation was required.
- The reasons for closure were adequately explained in the consultation document and Ministerial foreword.
- The Minister was entitled to rely on Government policy proposals and did not need to consult further on them.
- The Minister, as Minister for Disabled People, was aware of the likely impacts and the requirements of the Equality Act and discharged the PSED through consideration of the Equality Impact Assessments (EIAs) and other materials.
- The Minister actively sought to mitigate adverse impacts through transitional arrangements and a Code of Practice.
- The Appellants were effectively seeking to micro-manage government decision-making beyond what the law requires.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v North and East Devon Health Authority, ex p. Coughlan [2001] QB 213 |
Legal principles governing proper consultation by public bodies, including timing, sufficiency of reasons, adequate time, and conscientious consideration of responses. |
Used to assess adequacy of consultation process regarding ILF closure. |
| R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168 |
Requirements for consultation to be meaningful and effective. |
Referenced as authoritative statement on consultation duties. |
| Equality Act 2010, section 149 (Public Sector Equality Duty) |
Imposes duty on public authorities to have due regard to eliminate discrimination, advance equality of opportunity, and foster good relations. |
Central statutory framework for assessing Minister’s compliance in decision-making. |
| R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 |
Equality duties as integral to anti-discrimination legislation; evidential importance of recording steps taken. |
Guided court’s understanding of PSED requirements. |
| R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWHC 199 (QB) |
Importance of evidential record of compliance with equality duties. |
Supported requirement for Minister’s conscious consideration and record. |
| R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154 |
Duty is personal to decision-maker; cannot be satisfied by officials’ knowledge alone. |
Emphasized Minister’s personal responsibility to have due regard. |
| Kaur & Shah v LB Ealing [2008] EWHC 2062 (Admin) |
Equality duty requires assessment of adverse impact before policy adoption, not as afterthought. |
Applied to assess timing and rigour of Minister’s consideration. |
| R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) |
Outlines detailed requirements of PSED: awareness, timing, substance, non-delegability, continuity, and record-keeping. |
Framework for evaluating Minister’s compliance with PSED. |
| R (Meany) v Harlow DC [2009] EWHC 559 (Admin) |
Distinguishes general regard to equality from specific conscious consideration required by PSED. |
Supported finding that Minister’s consideration must be focused and explicit. |
| R (Bailey) v Brent LBC [2011] EWCA Civ 1586 |
Affirmed the requirement for specific regard to equality obligations. |
Reinforced need for explicit attention to equality criteria. |
| R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 941 |
Officials must rigorously enquire and report on equality issues, not merely tell Ministers what they want to hear. |
Supported criticism of overly optimistic or incomplete reporting to Minister. |
| R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) |
Clarifies scope of court’s review of PSED compliance and duty of inquiry before decision. |
Used to assess whether Minister had proper focus and information on equality impacts. |
| Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 |
Duty of public authorities to be properly informed before making decisions. |
Supported argument for duty to acquire relevant information under PSED. |
| Burnip v Birmingham CC [2012] EWCA Civ 629 |
Construction of Article 14 ECHR in disability discrimination context. |
Referenced in relation to international disability rights obligations. |
| AH v West London Mental Health Trust [2011] UKUT 74 (AAC) |
International obligations under UN Convention on the Rights of Persons with Disabilities (CRPD). |
Used to emphasize the importance of independent living rights in equality considerations. |
Court's Reasoning and Analysis
The court first addressed the adequacy of the consultation process. It found that the omission of the estimated costs of closure from the consultation documents did not detract from consultees' ability to respond meaningfully, as these costs were internal accounting matters unrelated to the impact on users. The court held that there was no requirement to consult on possible postponement of closure because that was not a proposal at consultation stage but a later consideration. The reasons for closure were sufficiently explained in the consultation document and Ministerial foreword, particularly in the context of wider Government social care reforms. The court also rejected the argument that reliance on Government White Paper proposals was unlawful, reasoning that it was reasonable for the Minister to work within the framework of Government policy.
Turning to the public sector equality duty, the court emphasized the statutory requirement for public authorities to have "due regard" to eliminating discrimination, advancing equality of opportunity, and fostering good relations. The legal principles require a conscious, rigorous, and substantive consideration of equality impacts, supported by adequate evidence and records.
The court found that the Minister did not receive sufficiently clear or comprehensive information to demonstrate a proper appreciation of the significant adverse impact the closure of the ILF would have on the ability of many disabled persons to live independently. The evidence suggested that officials provided an overly optimistic or incomplete account of the risks, and the Minister’s focus was on fairness across disabled persons generally rather than the particular needs of ILF users. The court noted the absence of evidence that the Minister explicitly considered the specific statutory criteria or the positive obligations under the Equality Act and relevant international obligations, such as the UN Convention on the Rights of Persons with Disabilities.
While the Minister took some steps to mitigate impacts through transitional arrangements and a Code of Practice, the court concluded that this did not compensate for the failure to have proper due regard at the decision-making stage. The court rejected the Respondent’s invitation to infer compliance from the Minister’s position and general awareness, holding that such an approach would undermine the statutory role of the PSED.
Consequently, the court allowed the appeal on the basis that the PSED had not been discharged lawfully, notwithstanding that the consultation was adequate and the decision to close the ILF was within Government policy.
Holding and Implications
The court’s final decision is to ALLOW THE APPEAL AND QUASH THE DECISION to close the Independent Living Fund as made on 18 December 2012.
This ruling means the challenged decision is declared unlawful due to failure to comply with the public sector equality duty. The decision must be reconsidered with proper and rigorous regard to the statutory equality criteria. The judgment does not establish new legal principles but reinforces the stringent requirements of the Equality Act 2010 on public authorities, particularly concerning decisions affecting disabled persons. The direct effect is that the Minister’s decision is set aside and must be revisited, ensuring compliance with the PSED. No broader or novel precedent beyond the application of established equality law principles is created.