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Disabled student: course compatible with work related requirements/voluntary preparation for work

Jo_Smith
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Yet another “disabled student and UC” post, I am afraid.

I have a client who is a student at non-advanced course of education. He is not a QYP (started the course when he was 19+) and does not receive any student finance. 

He has PIP but no LCW/LCWRA.  He has autism and he is studying BTEC but lives in supported accommodation, where he receives life skills training.

His 3 recent attempts at claiming UC resulted in swift, administrative closure. No DM’s decision, no appealable notice- just “claim closed”. 

In most recent attempt of claiming UC, client put in a message which I helped to compose. It explained in detail that he could be found entitled to UC if his course is found compatible with WRR or if his course is the best way to satisfy WRR. 

There was no response. No one has even attempted to examine if his course “may be included as a work-related requirement if it gives the claimant the best chance of securing work.” (http://data.parliament.uk/DepositedPapers/Files/DEP2021-0835/146_Students-eligibility-conditionality-student_income_V23-0.pdf) No discussion if perhaps his WRR could be reduced or if course could be treated as voluntary preparation for work.

I believe there is a Pavlovian response from DWP when a client selects “student” option during application process. Of course no reasonable, normal person would have chosen otherwise if they are indeed studying- without any knowledge that their course might not be a course of education at all, or that they actually may not be a “student”. As claimants are not social security law experts, a work coach should examine if they are “students” or “in education” etc, etc. But no. A big red flag pops up, buzzer sounds and claim is closed.

“The concept of ‘closing’ a claim does not exist in law” (thank you Martin! https://askcpag.org.uk/content/200069/-lsquo-closing-rsquo—universal-credit-claims ).
I wrote to the Service Centre ops manager (the gatekeeping! Pentagon would be jealous), wrote to the Advanced Customer Senior Support Lead (a.k.a. safeguarding lead), MP (twice), to request that claim is kept open at least until WRR are discussed- heard back absolutely nothing. 

Two issues:
1. What can I do to prevent automatic claim closure, is there perhaps a JR or any other format of action?
2. And flowing from that, what can I do to force DWP to actually check if this young disabled person’s course would be the best way for him to prepare for employment?

Daphne
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HI Jo

As always happy to raise via stakeholders if it’s helpful - I’ll raise it as a general issue but if you want to send me NIno I can give them that too

CPAG has some pre-action letters on claim closure - https://cpag.org.uk/welfare-rights/judicial-review/judicial-review-pre-action-letters/claim-closure-uc - although none seem to quite match but I’m sure Jess would be happy to talk to you about it and see if one can be tweaked

Elliot Kent
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I had a pretty much identical case to this a few weeks back Jo. The client was in his early 20s and was on a full-time NVQ. The DWP, having learned that, immediately ended his award without anything further. His response was to give up the course. He since got work and has, understandably but regrettably, indicated he is not interested in pursuing any back-money which might be due.

My first reaction, as someone who doesn’t deal with students too often, was that he was a person “receiving education” and would have no entitlement as a result. However further enquiry, as you note, shows that because courses of this nature do not amount to “advanced education” and do not usually give the student access to maintenance funding, they do not fall within the relevant definition under reg 12(2) and the question is then whether they are nonetheless incompatible with WRR as per reg 12(4). In my case as with yours, there was absolutely no enquiry into that and his award was just summarily ‘closed’ once he notified them about his studies.

As my case will be about 300 miles north of yours, I am guessing this is not an isolated issue…

I am not sure what the answer is. Certainly JR is an option to consider. I would just add that if the claim has just been summarily “closed” without proper notification of a decision, one option is to lodge an appeal directly. The requirement to pursue revision before appeal doesn’t apply in a case like this because reg 7(1)(b) D&A isn’t satisfied.

Jo_Smith
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Thanks Elliot. Appeal duly submitted but client, through an appointee, submitted a new claim and I am trying to fight off the “sudden death” claim closure for this new claim.

bristol_1
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Jo I am watching with yours case interest; my client is her son’s appointee.  She had made the NS ESA credits-only claim last Autumn as per the previous ‘workaround’. The law then changed in Dec before any hint of a WCA and as the son’s course started in September the only remaining route to UC appears to be: new UC claim + course compatible with WRR.

As for preventing ‘sudden death’ I am going to advise her on a journal note as you did including that ‘closing’ the claim without exploring 12 (4) would be unlawful… and then if that fails maybe try a workaround where she says ‘no’ to are you in education but then add a journal note clarifying that he is, but should not be treated as such…

Is there any benefit to her maintaining his NS ESA claim? At present he gets NICs but should the UC claim succeed, that should also credit him with NICs shouldn’t it? I’m trying to work out if he needs to submit sicknotes and continue with the NS ESA.

Jo_Smith
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bristol_1 - 01 March 2022 01:48 PM

As for preventing ‘sudden death’ I am going to advise her on a journal note as you did including that ‘closing’ the claim without exploring 12 (4) would be unlawful… and then if that fails maybe try a workaround where she says ‘no’ to are you in education but then add a journal note clarifying that he is, but should not be treated as such…

Is there any benefit to her maintaining his NS ESA claim? At present he gets NICs but should the UC claim succeed, that should also credit him with NICs shouldn’t it? I’m trying to work out if he needs to submit sicknotes and continue with the NS ESA.

May you have a better luck than me. I have even prepared a briefing note, designed to be read by a hostile and poorly trained work coach. All pretty please with cherry on op.

Nope, nada, no pasarán!

My clients claims were closed incorrectly, by staff acting ultra vires, without any investigation or exploration of eligibility. This is despite client providing information and requesting that the claim is kept open at least until work related requirements meeting can be completed with the work coach, so the work coach has a chance to establish if the course can be compatible with claimant commitment. Last claim was closed a day before WRR meeting was due to take place.

When I submitted a complaint about the first claim being closed “just like that”, this is part of the response I received: “Section 8 (1)(a) of the Social Security Act 1998 states, it shall be the Secretary of State to decide any claim for a relevant benefit. It is not explicitly dictated in the legislation that a dedicated decision maker has to make this decision. In this instance a case manager acts on behalf of the Secretary of State in deciding whether or not the claimant is entitled. Subsequently if they are not entitled, it is the case managers responsibility to close the claim.”

ADMA1 : Principles of Decision Making and Evidence , paras A1002 - A1039 say that SoS can delegate but to DMs only. There is no mention of others or advice that decision making can be delegated further. Who else can make decisions on claims? The office fire warden? The delivery guy who finds himself on the threshold of the office?
Plus of course my guy never received a proper decision notice, nor was made aware of the right to appeal.

The manager of the Jobcentre assured me that the team leader who close the claim has followed the internal guidance perfectly. I wrote to EWS as it appears that JCP claim closure internal guidance is incompatible with legislation and ADM guidance.

The bigger issue is how do you decide that continuing the course gives the claimant the best chance of securing work. This is such a subjective and personal opinion. My client, a young man with autism, is currently not able to “fit” into cultural norms and expectations of a work place. He needs a lot of support and has no chance of successful, reasonable employment. Is the work coach suitably trained to assess claimants with autism on their capability to take up employment?
My experience is that of work coaches struggling to remember basic stuff, like carers should not be asked to look for work, or people who transfer from ESA don’t have to keep submitting fit notes etc, etc.

As for your query about NSESA; keep it, there is no harm in it, and perhaps your students may at some point need to properly withdraw from the course (not just suspend or go into abeyance- they’d need to withdraw properly, off the college books) and then enrol afresh, on a “new” course, but for example on year 2 of the course.
And if they start a new course, iro PIP and LCW, they could get UC without all that trauma.

Tactical breaks from education :)

So to summarise, if you are a non-adv education student, and you are disabled but never claimed ESA because it just wouldn’t make sense (no money if you have not earned NICs), and have no kids, then you are screwed when it comes to UC.  It is obscene.

 

[ Edited: 1 Mar 2022 at 10:03 pm by Jo_Smith ]
Stainsby
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I know the context is different but the legal principles are the same.

I have successfully appealed a DWP closure of a client’s Pension Credit claim

As Martin said there is no such legal concept as claim closure.  The reality is that they have refused to award UC and that would otherwise be an appealable decísion

I have attached an extract from the “closure” letter that the DWP sent to my client, along with a redacted copy of the response that I sent direct to HMCTS.

The appeal was admitted and allowed in this case.

I think you could use this as a tactic in a UC case short of the nuclear one of JR , only substitute Regulation 7 of the UC (Decisions and Appeals) Regulations 2013 for Regulation 3ZA(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999

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Jo_Smith
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Thanks Derek, that submission is sweet.
I have already submitted an appeal but I will draft additional statement.

UB40
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Hi Jo,

I attach the DWP Spotlight guide for UC claim closure that a Work Coach would need to follow. Spotlights are supposed to indicate best practice.

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SarahD
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Just put in a MR on one of these cases. (20 year old with learning disability on very flexible life skills / work preparation course, EHCP expected to continue to age 25, max PIP etc). Claimed in January 2022.
Claim closed with no warning midway through 1st assessment period with no decision notice. Appointee baffled.

work related requirements were discussed according to appointee - kept extremely minimal (attend course, attend JCP in holidays)

Tried to escalate with JCP, but had a call back which consisted of their repeating Dec 2021 rule changes over and over - that “disabled students cannot claim UC or have a WCA” and that claimant was not in an exempt group such as a lone parent. This person did not seem to grasp that I was asking about reg 12 not reg 14.

Extremely worrying this apparent belief that being on a course is a blanket ban on receiving UC, especially in relation to this vulnerable client group

Jo_Smith
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Just to say that I have created a separate topic to focus on refusal to award a benefit, a.k.a. claim closure here: https://www.rightsnet.org.uk/forums/viewthread/18148/ just so we can separate faulty DWP assessment of disabled students from the problem of how claims are “closed” by DWP.

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I take it this wouldn’t be helpful for a disabled 19 year old on life skills training and living with parents even though they can no longer claim CB?

HB Anorak
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When was the 19th birthday and is the extent of their disability such that they would probably have LCWRA and hence no work requirements anyway?  Chances are that such a student is not “receiving education” and therefroe not prevented from claiming UC

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HB Anorak - 20 June 2022 09:53 AM

When was the 19th birthday and is the extent of their disability such that they would probably have LCWRA and hence no work requirements anyway?  Chances are that such a student is not “receiving education” and therefroe not prevented from claiming UC

He was 19 on 1st June. He will start college in September. Yes, he would definitely have LCWRA. So, how do they convince the DWP that he is not in full time education? Or are we looking at the above problems?

HB Anorak
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For the claimant to be “receiving education”, one of the following must apply:

- the claimant is a “qualifying young person” (QYP), or
- the claimant is studying full time at advanced level (= above A-Level standard), or
- the claimant gets student finance for maintenance (there is a debate about whether the Welsh Government Learning Grant satisfies this), or
- the claimant is doing any course that is not compatible with work seeking requirements

From the 1st September after his 19th birthday he is no longer a QYP; it doesn’t sound like he is studying above A-Level standard; he probably won’t have student finance (subject to the debate about the WGLG); and it doesn’t sound as if he will have any work related requirements so you don’t need to worry about the issue that began this thread.

I find it helps to keep in mind that there is meant to be a joined-up system for funding students’ living costs:
- for non-advanced education, parents until you turn 19 (with certain exceptions eg estranged from parents)  and then UC thereafter
- for advanced education, student loans and grants, supplemented by UC for students with extra costs arising from family responsibility or disability.  The controversial issue in recent years has been the amendment of the regs to make it more difficult for disabled students in advanced education (who should have access to student finance) to supplement their grants/loans with UC.

Your client falls into the non-advanced post-19 group who fund their living costs through UC

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HB Anorak - 20 June 2022 10:47 AM

For the claimant to be “receiving education”, one of the following must apply:

- the claimant is a “qualifying young person” (QYP), or
- the claimant is studying full time at advanced level (= above A-Level standard), or
- the claimant gets student finance for maintenance (there is a debate about whether the Welsh Government Learning Grant satisfies this), or
- the claimant is doing any course that is not compatible with work seeking requirements

From the 1st September after his 19th birthday he is no longer a QYP; it doesn’t sound like he is studying above A-Level standard; he probably won’t have student finance (subject to the debate about the WGLG); and it doesn’t sound as if he will have any work related requirements so you don’t need to worry about the issue that began this thread.

I find it helps to keep in mind that there is meant to be a joined-up system for funding students’ living costs:
- for non-advanced education, parents until you turn 19 (with certain exceptions eg estranged from parents)  and then UC thereafter
- for advanced education, student loans and grants, supplemented by UC for students with extra costs arising from family responsibility or disability.  The controversial issue in recent years has been the amendment of the regs to make it more difficult for disabled students in advanced education (who should have access to student finance) to supplement their grants/loans with UC.

Your client falls into the non-advanced post-19 group who fund their living costs through UC

Thank you for all the advice.