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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Challenging disabled students refusal of UC – official error?

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Va1der
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Claim online? Or are you saying they are refusing to accept online claims or process them for WCAs?

seand
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Welfare rights officer - Wheatley Homes

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WR Adviser - 15 September 2020 02:54 PM

We are now seeing gatekeeping at DWP preventing nsESA claims to be made to force WCA.  Appointees are told to telephone to make the ESA claim, DWP staff are then refusing to accept a claim when the appointee telephones.  As I see it, a pre-action letter is the only way to address these gatekeeping issues.  Unless anyone has any other suggestions?

submit claims online? https://www.apply-new-style-employment-support-allowance.dwp.gov.uk/eligibility-start

Abi Sheridan
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Elliot Kent - 04 August 2020 07:06 PM

One of the most baffling areas of UC to follow and advise on recently has been the treatment of disabled students.

And now in a further development, DWP have issued new legislation to “clarify” the regulations to give effect to the policy intent. Obviously these new Regulations - which simply “clarify” what has already apparently been the case for 5 years - are so incredibly urgent that couldn’t go through SSAC in advance and have been laid before Parliament the day before they come into effect. And no impact assessment, because of course they don’t change anything.
https://www.rightsnet.org.uk/welfare-rights/news/item/exception-to-the-universal-credit-basic-condition-not-to-be-receiving-education-for-those-in-receipt-of-a-disability-benefit

So we are invited to accept that a major change in policy to refuse entitlement to UC for new disabled students who do not already have an LCW assessment was decided on in 2012, but was not announced publicly, was not mentioned or discussed in the consultation document and which was not subject to an impact assessment, and which now needs to be urgently clarified five years hence because the legislation which was intended to introduce the change apparently did not do so emphatically enough.

Does anyone else cynically wonder whether the “urgency” that meant no consultancy or parliamentary oversight was them realising that most new students will begin in September, only a couple of weeks after the change? Seems suspicious (read: downright hostile) to me that this was rushed through 2 weeks before the start of term….

Daphne
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Wolverhampton Welfare Rights have produced a Benefits Bulletin on Disabled Students and Universal Credit and a supplement following the legislative change at the beginning of August - attached.

Thanks to Mark Perlic for sharing these.

FWK77
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Has anyone had any more experience of how the nsESA/WCA workaround claims are being processed/dealt with?
In particular has anyone had a claimant already on a FT non advanced course who has used the nsESA workaround, subsequently been assessed as having LCW and thus made a new claim for UC that has been accepted (I realise the turnaround would have been a quick one for this to have happened since the change!).

Also in cases where the disabled student is in the scenario above and pursues a nsESA claim to get LCW before making the claim for UC, is there anyway to mitigate what could be weeks if not months of ‘lost entitlement’ (for want of a better phrase) to UC whilst waiting for the WCA to be carried out?

Cheers

barbs1000
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Hi sorry to tag into this post. I have an appeal, pre change in the regs. I am arguing that UC should not have closed his claim made in October, until they had assessed the claimant for LCW. I won’t go into any details but it was a nightmare to get an ESA NI claim only accepted and a further nightmare to get a WCA. We now have a decision. Client awarded SG from 30.1.20. Presumably, although the UC claim was made in October we can only ask for a backdate of UC to 30.1.20. Just want to be sure before I write the submission. Many thanks in advance

Stuart
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More insight confirming DWP’s ‘justification’ for the urgency to issue regulations to ‘clarify’ disabled student UC claims policy highlighted in SSAC minutes of its 23 September meeting -

The urgency of the regulations was driven by a recent Judicial Review… [referring to the case in this thread and this thread?]. The court date was set for 31 July, to challenge or concede to the Judicial Review.  The legislation was laid on the 4 August with a coming into force date of 5 August.  As the consent order could have potentially been settled in a few days after the 31 July, the Department’s concern was that they would not have the legislation to maintain policy to ensure operational policy flows.  Had the amending regulations not been in place, this could have caused a burden on the Department.

DWP has also set out scenarios in Appendix 1 and 2 of the minutes, giving examples of when and how much eligibility may be established.

Elliot Kent
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Shelter

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Here are my questions for SSWP as a non-member of SSAC

(1) If the reason why no consultation or impact assessment was conducted in implementing the new Regulations was because there was “no policy change”, what consultations or impact assessments were done when the policy was originally adopted? What is the objective justification for discriminating as between a person who already has an LCW assessment and someone who does not have one but would qualify for one?

(2) If the policy had already been adopted when the UC Regulations 2013 were introduced, as they must have been given that we are told that they were intended to reflect the policy, why did the report to SSAC contextualise the changes in terms of being a continuation of the exceptions in the previous system when the intention was to change policy?

Elliot Kent
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So DWP has admitted that it acted unlawfully and in breach of the UC Regs in its approach to these cases.

https://gcnchambers.co.uk/secretary-of-state-for-work-and-pensions-operated-unlawful-policy-for-years-of-refusing-universal-credit-claims-from-disabled-students-r-kauser-and-jl-v-secretary-of-state-for-work-and-pensions-co/

Rather than change its approach to comply with the law, the DWP has decided to change the law to comply with its approach.

My questions remain unanswered.

Daphne
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From Garden Court Chambers -

Secretary of State for Work and Pensions operated unlawful policy for years of refusing Universal Credit claims from disabled students: R (Kauser and JL) v Secretary of State for Work and Pensions (CO/987/2020, 7 October 2020)

A new decision of the High Court has demonstrated that between 2013 and 2020, thousands of disabled students entitled to Universal Credit for essential living costs were unlawfully barred from claiming benefit. That happened because the Government had misunderstood the law about how to assess such claims, and adopted an unlawful policy of rejecting them without conducting Work Capability Assessments.

Significantly, on Monday 3 August 2020 – ie the working day immediately after she conceded the judicial review claim – the SSWP amended the 2013 Regulations. The amendment provides that for disabled students making UC claims on or after 5 August 2020, decision-makers are no longer required to refer claimants for a WCA where they are in receipt of attendance allowance, disability allowance or PIP and have not previously been determined to have limited capability for work.

For students incorrectly refused UC in the past (before 5 August 2020), it may be possible to ask the Secretary of State to revise her decision; indeed, hopefully the Secretary of State will urgently review past incorrect decisions on her own initiative.

For disabled students who need UC in future, it may still be possible to be referred for a work capability assessment by claiming contribution-based Employment and Support Allowance, or by asking to be credited with national insurance contributions. Those routes may lead claimants to be referred for a WCA, resulting in a determination that they have limited capability for work.

Further, there may be scope for legal challenge to the amending Regulations.

Dan Manville
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I can’t help but think that there is a category of people; those of a certain age who wish to go straight from FE to HE, in receipt of PIP already, that would be disadvantaged by this change.

I’d love to hear from anyone affected…

Ken Butler
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Hi,

Would anyone have views on the following?

The 6/10/20 High Court judgement CO/987/2020 -
https://www.rightsnet.org.uk/pdfs/CO_987_2020.pdf
held that the Secretary of State for Work and Pensions acted unlawfully in failing to determine whether two disabled students had LCW before deciding their entitlement to universal credit.

The effect of this was nullified by the new regs - SI.No.827/2020 -
https://www.legislation.gov.uk/uksi/2020/827/made
that came into force from 5/8/20 that provide for no determination of a disabled students LCW.

Its not clear if the DWP will limit any payment of UC arrears to those disabled students refused UC before 5/8/20 by invoking the ‘error of law’ anti-test case rule – on the grounds that it was the High Court Judgment that established the mistake in the law.

But is it possible to argue that official error revision instead is appropriate and so result in arrears being payable prior to 5/8/20?

On 31/7/20, the Secretary of State told the Court she would not be defending this claim and subsequently admitted breaching regulation 14(b) of the Universal Credit Regulations 2013 by -
• failing to determine whether the claimants had a LCW; and
• failing to conduct a WCA before deciding the Claimants’ entitlement to UC.

Given this, was the error of law was admitted before the High Court Judgment and amounts to official error?

Also, even if the DWP itself agrees to undertake a case review exercise to identify those disabled students wrongly refused UC before 5/8//20, would these claimants first need to provide back dated medical evidence for any WCA to take place?

Thanks very much to anyone who has any views on either of the above.

Daphne
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Leigh Day have published a press release about the case and advise -

Other disabled students who were refused a WCA prior to 5 August 2020 and therefore lost out on their claim for universal credit, should ask the Secretary of State to revise her decision.

Although the DWP has callously changed the regulations to prevent more disabled students being entitled to a WCA, there may be scope for legal challenge to the new regulations.

Ruth Knox
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For the disabled students who cannot argue that they are not receiving education (on grounds of reg12 (4)) and who are now required, as from 5 August, to have had a WCA, would it be a good tactic to claim New Style ESA (credits only) and request backdating for three months.  This ought to mean that they should hava a Work Capability Assessment immediately, and hopefully bring the possibility of an earlier claim for UC?

Alternatively what about a claim for UC at the same time, which would be refused, and the refusal challenged on the basis that it should have been “stacked” on grounds that they will, when eventually assessed, be found to have had limited capability for work from the date on which the claim was made?

Glenys
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Ken Butler - 13 November 2020 11:41 AM

On 31/7/20, the Secretary of State told the Court she would not be defending this claim and subsequently admitted breaching regulation 14(b) of the Universal Credit Regulations 2013 by -
• failing to determine whether the claimants had a LCW; and
• failing to conduct a WCA before deciding the Claimants’ entitlement to UC.

 

Trying to find the section of CO/987/2020 that stated that the S of S admitted the failures. as that would be crucial to a revision on grounds of official error.
Can only find where it says that she “no longer intended to defend the claim. She did not file any grounds of defence or evidence. “
- but is that the same thing?
Or is it written in some other document?

Thank you!