People in Wales in receipt of the Independent Living Grant, the Welsh Government’s interim measure to soften the blow of the closure the Independent Living Fund (ILF) would have followed R (Luke Davey) v Oxfordshire CC and the subsequent appeal with interest in the hope that the Court of Appeal would overturn the earlier High Court decision.
The Welsh Government has confirmed that the Independent Living Grant will continue in Wales until March 2018 and in the subsequent year all those who previously received the ILF will be re- assessed and have their care and support provided for by their local authority.
It is likely that many former ILF recipients will see attempts to reduce their care and support funding in the same way as Luke Davey.
In this case we have seen the High Court loathed to strike down the Local Authority decision as being irrational and the Court of Appeal found no reason to interfere with the decision of the High Court.
One should take heart that Davey does not give local authorities a carte blanche – and it should most certainly not be taken as creating an open season to cut services. It decides that the well-being duty is a legally enforceable obligation and that once a support plan has been agreed local authorities must provide the funds to meet every aspect of that plan. It also states – in terms – that once there is evidence that a direct payment is insufficient to secure suitably qualified carers then the local authority must address this by increasing the amount paid.
Davey is a case ‘on its facts’: disheartening and quite possibly a personal tragedy for Luke Davey. Cases of this kind come along infrequently but they do not upend the social care legal order.
For us in Wales, the excellent Merton decision and the facts of the Davey case, provides the basis for disabled people to expect an assessment that gives primacy to their well-being outcomes identified by the person being assessed or their advocates. It highlights that Local Authorities need to provide a rational for any changes in provision that will stand up to the test of irrationality should it be challenged in the Courts.
The transition to local authority provision for previous recipients of the ILF is not an automatic signal for a reduction in care provision for the individual who is eligible for care and support.