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Disabled Students and Universal Credit

 

Ken Butler
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A disabled full time student is eligible for ESA if they receive DLA or PIP. They are “treated as having a limited capability for work” (LCW) on this basis.

A work capability assessment (WCA) is carried out only to see if they should be in the support group (and so receive a higher amount of ESA).

But most new disabled students will be excluded from being able to claim Universal Credit. This means they won’t get the support towards housing costs that large numbers of students in receipt of PIP or DLA currently do.

Under UC a disabled student cannot – except in very limited circumstances – be treated as having a LCW (Schedule 8 of the UC Regs 2013).

A disabled student claiming UC will be immediately refused because they do not have a LCW (but cannot be assessed to see if they have a LCW as they are not a UC claimant).

Disability Rights UK is looking for case studies about the value of ESA and Housing Benefit to disabled students to lobby for the UC regulations to be amended.

Any relevant examples, please send to our student helpline @ .(JavaScript must be enabled to view this email address)

     
stevejohnsontrainer
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Hi Ken,

What stops a student from starting a Full Service UC claim as a sick person, and await their LCW assessment in the normal way via a UC50? Why would they be locked out in principle, as you seem to imply?

Cheers,

Steve

     
stevejohnsontrainer
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Answering my own question, do you mean because they are auto excluded as full time advanced students? If yes, I suppose that means claim UC before starting study? Sorry for not thinking this through first!

     
Ken Butler
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Hi Steve,

You’re right.

The problem is that disabled students are automatically excluded on the basis that they are disabled students.

     
Peter Turville
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Ken Butler - 25 May 2017 11:55 AM

Hi Steve,

You’re right.

The problem is that disabled students are automatically excluded on the basis that they are disabled students.

I wouldn’t agree that they are excluded because they are ‘disabled students’ (rather as ‘students’ - because at the point of claim they do not have and cannot be treated as having LCFW).

Arguably the intention of UC Reg. 14(b) is to replicate ESA Reg 18. The problem you rightly identify is that as under UC there is no provision to treat someone as having LCFW equivelant to ESA Reg. 30. As you note the provisions in UC Reg. Sch. 8 only replicates the more restricted ESA Reg. 20.

The lack of an equivelent to Reg 30 is an issue for a broad category of UC claimants pending determination of LCFW, not just ‘disabled students’.

So the policy question is - did the DWP intend to exclude most ‘disabled students’ by the devious route of providing no equivelent of ESA Reg 30? A Kafkeresk way of saying we intented that you would be entitled but we deliberately provided you with no method by which you could prove LCFW to achieve that entitlement.

Given the long term policy intention going back before Clarke & Faul to exclude student from benefits it would not come as a great suprise if this were the next step - but it does seem a very byzantine way, even for DWP, to achieve it.

Given the small number of potential claimants involved I might give DWP the benefit of doubt and conclude this is an unintended consequence of providing no equivelent to ESA Reg. 30? Have you raised it at a policy level with DWP?

     
Ken Butler
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Hi Peter,

We have raised it with the DWP on a policy level.

Last year we were advised by the DWP that “a disabled student can claim UC if they have limited capability for work – which in this instance means submitting medical evidence of having a health condition or disability”.

But the DWP is now clear that this is not the case -
https://www.disabilityrightsuk.org/news/2017/may/dwp-deny-work-capability-assessments-disabled-students 

This means that under UC most disabled students will not only be denied a top up to their student finance but will not be able to study away from home (as they are excluded from UC housing costs help).

Disability Rights UK is campaigning for UC to be payable to disabled students as ESA is now.

We are seeking the personal experiences from disabled students to explain what kind of difference the extra income of ESA/HB has made to them.

Any relevant examples, can be sent to our student helpline @ .(JavaScript must be enabled to view this email address)

     
HB Anorak
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Is there not an obvious work-around here: DWP simply delays making a decision about the UC claim until after the WCA?  Moreover, as discussed in another thread that I cannot find at the moment, I think the effect of a successful WCA is that the claimant has LCW from the point at which s/he asserted that s/he had LCW, even though the UC award does not get increased for three months.

So the sequence of events goes:

- claimant applies for UC and says they have LCW
- everything goes quiet for a bit
- WCA carried out, sure enough you have LCW
- UC awarded from date of claim
- LCWRA element added from Month 4 (or WRA if that still applies to the claimant)

      [ Edited: 26 May 2017 at 08:18 am by HB Anorak ]
Ken Butler
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We did raise the option of not making an immediate decision on a disabled student’s UC claim but waiting until after a WCA but the DWP has dismissed this.

This means that a disabled student’s UC claim will be refused on them making it.

     
Peter Turville
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Thinking out loud - is the purpose of UC Reg 18 in practice to act as transitional protection for a ‘disabled student’ who already have LCFW and then claim / are transferred into UC but to exclude new ‘disabled students’ thus in the longer term excluding this group all together from benefits and into reliance on student support?

In terms of work arounds maybe it requires a challenge to a refusal of UC in an individual case where that disabled student is excluded because they are a ‘student’ and don’t,  at the point of claim, have LCFW. I feel another student test case coming!

I certainly understand the financial loss this will mean for disabled students. Yet another example of the lack of joined up policy thinking between Dept. for Education & DWP in policies towards student support and benefits for ‘non standard’ / vulnerable students?

     
HB Anorak
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I agree it needs a test case. It seems to me DWP must have determined that the claimant does not have LCW. The key issue for me is whether they are in a position to make such a determination without conducting a WCA. If the claimant asserts s/he has LCW, that surely requires a WCA to be carried out before any decision to reject the UC claim

     
Ken Butler
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Hi,

In brief, The DWP position is that the UC regulations do not allow a disabled student to have a WCA assessment.

Here is a recent shortened exchange between me and the DWP.

Q: “It’s clear from this that the Department’s position is that those disabled students in full time education entitled to DLA or PIP where –

•their medical evidence of a treatment or condition does not fall within Schedules 8 and 9 of the Universal Credit Regulations 2013; and
•where they do not have a valid determination of limited capability for work or limited capability for work and work-related activity following a previous work capability assessment

-    are not eligible for Universal Credit (UC).

However, this seems to place such students in a catch 22 situation.

This is in the sense that they cannot be eligible for UC if they have not been assessed as having a limited capability for work but they cannot have such an assessment carried out unless they are a UC claimant (in the sense that no decision has been made on their claim)?

Regulation 41 in the Universal Credit Regulations provides that work capability assessment cannot be carried out for the first time unless it falls to be determined that a claimant has a limited capability for work.

If a disabled student’s UC claim is refused, is the Department’s position that Regulation 41 means that they cannot have a work capability assessment (WCA)?

If so, would it not be possible for the Department to defer making a decision on such a claim in order for a WCA to be arranged to determine limited capability for work and so UC eligibility?”

A: “Thank you for your email of 25 April asking about routes to a work capability assessment in Universal Credit (UC) and whether determining entitlement to UC can be delayed until a person has had a work capability assessment.

Your understanding of Regulation 41 in the Universal Credit Regulations 2013 is correct: a person who meets entitlement conditions for UC is referred for a work capability assessment where appropriate. As the work capability assessment is not part of determining whether a person is entitled to UC, determining entitlement to UC cannot be delayed until a person has had a work capability assessment.

Turning to your other question, I can only reiterate that the design of UC is different to that of Employment and Support Allowance.  The rules in UC are designed so that a person in receipt of UC because of disability or ill health is not discouraged from taking up education that may help them in the future, and to maintain the position where young people in education can get the financial help they need in specific situations, for example where they are estranged from parental care. For those students including disabled students and those with health conditions not entitled to UC, financial support is available through various loans.”

We’d really welcome anyone coming up with an arguable case against the DWP’s interpretation of regulation 41 -
http://www.legislation.gov.uk/ukdsi/2013/9780111531938/regulation/41


     
dsimmons
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Hi Ken,

The DWP appears to be reading wording into regulation 41 which is not there i.e. that it only allows them to carry out a WCA where a person satisfies the basic conditions of entitlement to UC (including not being in FT education). In fact, regulation 41(1)(a) only states that a WCA can be carried out where it ‘falls to be determined for the first time whether a claimant has limited capability for work or for work and work-related activity’. ‘A claimant’ is defined in section of the WRA 2012 as a single (or joint) claimant who ‘makes a claim for universal credit or in relation to whom an award of UC is made’. It is clear, therefore, that it is sufficient to make a claim to be classed as ‘a claimant’, regardless of whether the conditions of entitlement are satisfied, and that being ‘a claimant’ is sufficient to allow the DWP to carry out a WCA under regulation 41. The DWP should, therefore, arrange for WCA to be carried out as soon as possible and then make a decision on the claim. Otherwise, their ‘catch 22 approach’ to regulation 41 would effectively and unlawfully make regulation 14(b) of the UC Regulations (disabled students) inapplicable (i.e. render it ‘otiose’ in legal terms).

     
HB Anorak
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DWP’s interpretation relies on two assumptions that are (in my opinion) both incorrect.

The first is that a “claimant” for the purpose of Reg 41 means a person who already has an award of UC.  The term “claimant” has no definition in either the general interpretation in Reg 2 or in Part 5 itself.  In the absence of a definition it seems to me that it covers any person who has made a claim for UC, including cases where the claim has yet to be decided.  In other benefits, for example HB and IS, the term “claimant” is defined as the “person claiming HB/IS”.  It seems obvious that a person awaiting a decision on a claim is “claiming” the relevant benefit.  I can see no reason why this should not be carried over to UC.

The second incorrect assumption is, in their words, that ” the work capability assessment is not part of determining whether a person is entitled to UC”.  Well, in the case of a full time student it simply is.  I can see what they are saying: it’s not like ESA where having LCW is a threshold requirement for access to the entire ESA scheme, whereas in UC it normally determines which conditionality group you belong to and it is a given that everyone in principle is eligible to claim UC per se ... but not a full time student, for heavens sake!  Here is the full chain of legal reasoning:

Section 3 WRA 2012:

A single claimant is entitled to universal credit if the claimant meets—
(a) the basic conditions

Section 4:

For the purposes of section 3, a person meets the basic conditions who—
(d) is not receiving education
(2) Regulations may provide for exceptions to the requirement to meet any of the basic conditions

UC Reg 14:

A person does not have to meet the basic condition in section 4(1)(d) of the Act (not receiving education)if—
(b) the person is entitled to attendance allowance, disability living allowance or personal independence payment and has limited capability for work

It is impossible to decide whether a student meets the s3 basic conditions, and whether s/he is therefore entitled to UC, without conducting a WCA if that is the key variable on which his/her entitlement relies.  So the WCA is indeed “part of determining whether a person is entitled to UC”

I cannot see how DWP has a leg to stand on with this.

EDIT: overlapped with dsimmons - of course, the definition of “claimant” in the Act adds further weight.

 

      [ Edited: 31 May 2017 at 11:15 am by HB Anorak ]
Ken Butler
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Hi,

Thanks very much for both your contributions.

Both logically set out and make sense.

But the problem for me is as follows.

What allows an ESA claimant to progress to a WCA is that they can be treated as having a LCW on the production of med certs.

But under UC the ability of being treated as a having a LCW is very restricted - only if you fall under Schedule 8 or 9 of the UC Regs 2013.

If an ESA claimant does not submit fit notes (and they could not otherwise be treated as having a LCW) their claim is refused.

I’m not aware of any case law that holds this is incorrect.

At the moment, I don’t think that the arguments presented around ‘being a claimant’ would succeed either in the case of someone who did not submit med certs for ESA or when claiming UC.

Does this make sense?

     
HB Anorak
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As I understand it, being treated as having LCW in ESA allows the claimant to receive ESA at the assessment rate pending a WCA.  The “treated as” provision isn’t there to allow the WCA to take place at all - it’s there to allow ESA to be paid while you wait.  In UC, if we are right about the initial decision on the claim requiring a WCA first (and we are right), the claimant unfortunately cannot receive anything while they are waiting.  But it doesn’t stop them being entitled with effect from the date of claim after the WCA has been done.

     
Ken Butler
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Hi, sorry for not responding sooner.

I think we may have to agree to disagree.

You cannot be entitled to ESA without either having a LCW or being able to be treated as having a LCW.

It’s more than just being able to be paid.

If you make a claim but don’t submit med certs, then your claim will be quickly refused - on the grounds that you don’t meet one of the basic conditions of entitlement.

Your ESA claim isn’t held open until the DWP can arrange for you to have a WCA.

Even if the DWP did hold open a disabled student’s UC claim then it might take nine months to a year before they had a WCA.

For someone seeking to move to a different area of the country to study this is impractical.

Not only is a positive WCA decision uncertain but the lack of a WCA means they could not take up accommodation and their college or university place.

What’s needed is UC rule that replicates the ESA one - allowing disabled students to be treated as having a LCW if they receive PIP.

Because HB forms part of UC, in effect disabled students can only study in areas where UC hasn’t been rolled out and it’s still possible to claim ESA and HB.

 

     
HB Anorak
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Fair point that WCA delays make it impractical for a disabled student to rely on the argument above and a much better solution would be for a “treated as” provision to be inserted in UC.

The drafter of both the ESA and UC Regs obviously contemplated the WCA being completed quickly - within three months at the outside - but we know that isn’t how it works in practice.

From a legal, if not a practical, point of view it should work like this:

UC claimant: “I assert that I have LCW and, as you can see, I am on DLA, so that means I can get UC while I’m studying doesn’t it?”
DWP: “Weellll ... yes, but until we’ve done a WCA we don’t know whether you have LCW or not, do we?  So I’m afraid it’s going to be a week or two before we can give you a decision, but don’t worry: you’ll still be entitled from the beginning of your claim if the WCA establishes that you do indeed have LCW and have had it all along.  Oh and after three months you might get a higher rate of UC as well”.

And in the case of ESA:
ESA claimant:  “I assert that I have LCW and, as you can see, I am on DLA, so that means I can get ESA while I’m studying doesn’t it?”
DWP: “To begin with, yes: we will treat you as having LCW while we set up a WCA and that means you are entitled to ESA straightaway.  If the WCA confirms that you have LCW you will remain on ESA.  Oh and after three months you might get a higher rate of ESA as well”.

In a perfect world ... but I maintain there’s no legal reason why it shouldn’t be that way.  I agree a “treated as” provision really should be added to UC though.

     
mjn500
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I have asked David Malcolm at NUS / Equality Challenge Unit to take this up (based on some of the very clear explanations here) but haven’t heard anything back as yet.

Mel .