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

UC for a ft disabled student

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stevenmcavoy
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client is a young person 18 and still at school.  parents income too high for cb and tc.  they have never claimed anything for her.  they are in a full service area.

i have just advised the client’s mum to start both a pip claim and the process for her to become appointee.

my thoughts now turn to my new friend universal credit.

in the good old days of ESA (and i never thought id say that) id have got mum to male a claim for ESA knowing it would be refused (as not yet a disabled student) but in order to protect backdate if pip subsequently awarded.  but uc gives me 3 quandaries.

1. is this even a viable option to ensure a backdate under pip?
2. can they even get UC given they cant be treated as having limited capability for work due to this weird gap uc appears to have created?
3.  anyone have any current claims with an appointee?  i was advised previously that uc was designed without a function for this, i understand its since been fixed but has anyone had this in practice?

     
Ken Butler
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Hi,

From what you’ve said, the client does not fit into any of the few circumstances where he can be treated as having a limited capability for work for UC purposes.

He also seems to be in the catch 22 situation in that he can only be awarded UC while a student if he is assessed as having a limited capability for work and receives PIP but if he claims while a student he cannot have a WCA.

See -
https://www.disabilityrightsuk.org/news/2017/may/dwp-deny-work-capability-assessments-disabled-students

https://www.disabilityrightsuk.org/news/2017/july/uc-denies-most-disabled-people-opportunity-enter-full-time-he

https://www.disabilityrightsuk.org/news/2017/august/minister-says-universal-credit-designed-encourage-disabled-people-take-education

     
stevenmcavoy
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Ken Butler - 16 October 2017 04:43 PM

Hi,

From what you’ve said, the client does not fit into any of the few circumstances where he can be treated as having a limited capability for work for UC purposes.

He also seems to be in the catch 22 situation in that he can only be awarded UC while a student if he is assessed as having a limited capability for work and receives PIP but if he claims while a student he cannot have a WCA.

See -
https://www.disabilityrightsuk.org/news/2017/may/dwp-deny-work-capability-assessments-disabled-students

https://www.disabilityrightsuk.org/news/2017/july/uc-denies-most-disabled-people-opportunity-enter-full-time-he

https://www.disabilityrightsuk.org/news/2017/august/minister-says-universal-credit-designed-encourage-disabled-people-take-education

aye thats exactly the problem i was going on about.  i was hoping they would have had a fix for that piece of sillyness by now.

 

     
HB Anorak
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Just been unpicking the law on students and UC.  Section 4 of the WRA 2012 makes it a basic condition of entitlement to UC that the claimant is not “receiving education”.  Regulations may:

- define “receiving education”, and
- provide for a claimant who is receiving education to be exempt from the basic condition

Reg 12 says that a QYP is treated as receiving education; Reg 5 defines a QYP as a 16-19 year old in non-advanced education at a school or college.  So she fails the basic condition of not receiving education.

Reg 14 sets out the cases where the basic condition does not apply and a person receiving education can still get UC.  These include being in non-advanced education but without parental support.  Being without parental support is defined in Reg 8 and would not apply here - the fact they have chosen not to claim Child Benefit (rather than claim it and pay the same amount in tax) doesn’t help.

So that leaves Reg 14(b) - on PIP with LCW.  This is an alternative to no parental support and would cover someone in your client’s position if they could get assessed as having LCW.  It seems this might be a good case to challenge DWP’s Catch 22 chicken-and-egg argument since the family seems to be comfortably off and able to stick it out over the long term, if they are game to put themselves forward as test case pioneers.  DWP will say they must instantly refuse the UC claim without conducting a WCA, because the claimant fails to meet the basic conditions and LCW is not a basic condition.  I say they are wrong: until they have done a WCA they are not in a position to say whether the claimant satisfies the basic conditions because for a student LCW is imported into the basic conditions.  I am 100% convinced that I have that right.  On appeal I would invite the Tribunal to:

- carry out a WCA, or adjourn part heard with directions to DWP to do so, and
- having established that the claimant has LCW, decide the claimant is entitled to UC.

     
WillH
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Loving HB anorak’s approach.

It makes sense - you can’t say the claimant doesn’t have LCW until you have checked whether they do, in fact, have it or not….I don’t see anything in reg 41 which prevents an assessment from being carried out. In fact arguably, it does indeed ‘fall to be determined for the first time’ whether the client has LCW.

Hope the family will go for this Steven or if not that someone will soon.

     
Ken Butler
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Is anyone aware of an Upper Tribunal or Commissioner’s decision directing that the DWP carry out a WCA?

     
stevenmcavoy
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very interesting response.  i think supporting the family with this might well be a great option.

many thanks for the detailed response.  i will update on this as things progress/i need help.

     
Ken Butler
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Whether anyone is aware of an Upper Tribunal or Commissioner’s decision directing that the DWP carry out a WCA was a genuine question.

If there are, it gives weight to the appeal.

Reg 41 of the UC regs provide that the Secretary of State “may’” carry out a WCA where it falls to be determined for the first time whether someone has LCW.

Are there any decisions holding that “may” has the same effect as ‘“must”?

Again, if there are it gives weight to the appeal.

While the UC regs need changing, having a template appeal submission for disabled students to use would be really useful.

     
PippaD
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Can a student claim CBESA credits only ( if finances allow) and avoid UC and then be found to have LCW and then transfer to UC on the understanding that they have been on a credits only claim and have LCW?

     
Ken Butler
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That would seem to work - making a claim for UC and ‘new style ESA’ with fit notes -

https://www.gov.uk/guidance/new-style-employment-and-support-allowance

A difficulty is the length of time it may take to then have a WCA and a LCW decision.

The UC problem comes when the disabled person claims UC as a full time student.

If they are studying away from home they cannot get UC and so no UC housing costs -  meaning they can’t take up their course.

     
Peter Turville
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Ken et al

Has there been any ‘progress’ on this issue? Any experience of whether DWP will accept a ‘new style’ ESA credits only claim and arrange a WCA?

Have just assisted the appointee to arrange a HV to make a UC claim for a 20 yr old (therefore no longer appointees dependent) who is still in f/t non-advanced ed who has PIP ERDL+SRMC but, of course, has not previously been assessed under the WCA. Have also completed ESA UC1 for the ESA claim.

Its time I had another student ‘test case’!!

     
Ken Butler
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Hi Peter,
Unfortunately there has been no movement at all on this issue.

The way round the UC requirement for a disabled student to have a LCW via a new style ESA claim is outlined by Angela Toal in December 2017 issue of CPAG’s Welfare Rights Bulletin -
http://www.cpag.org.uk/content/universal-credit-and-disabled-students

Has anyone an example yet of this succeeding and resulting in a successful UC claim?

Also, can I ask what people think of the following?

Is it possible for someone to make a new style ESA claim and be put forward in the queue for a WCA while their parent is still receiving child benefit and child tax credit for them?

Thanks.

     
ElaineS
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Hi Have just been reading this feed because I had an enquiry this morning from mum of disabled son in full time non-advanced education.  He will be 20 on 14/06/18.  He receives Enhanced rate for Daily Living and mobility component of PIP and she is getting CTC and CHB which will obviously end when he is 20.  We go live in Full Service on 30/05/18 so should I advise her to stop her claim for CTC and CHB before end of May and claim ESA(IR) for her son so that he doesn’t end up in this scenario.  His course should continue for a further 2 years but may need to enrol each year.  Will this constitute a change that will make him have to move from ESA to UC?

      [ Edited: 2 Mar 2018 at 11:36 am by ElaineS ]
WillH
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One option is definitely to stop CTC & CB and for him to claim irESA instead. Having to enrol each year shouldn’t make a difference as long as he continues to get PIP - ie, he is a full-time student who is able to get irESA.

Another option would be to wait until CTC & CB end anyway & go for the cont ESA with UC claim. The cont ESA wouldn’t be awarded of course (it would be a credits only claim) but it means that we know a WCA can definitely be carried out. What may be more difficult is asking for the UC claim not to be decided until there is an LCW determination (even though there is arguably a duty not to make a decision where entitlement depends on another as yet undecided factor, I think this could be the bit the DWP might be reluctant to follow).

Of course this same argument - as HB Anorak says above - ought to work whether there is a concurrent claim for cont ESA or not. That is, arguably, a decision on UC ought not to be made until it is established whether or not the full-time student has LCW. But making a cont ESA claim at least guarantees that there has to be a WCA.

From a practical point of view for this family, you don’t really want a long drawn out legal challenge, so maybe avoiding UC is the simplest route, or if the family are prepared for some practical issues, trying the cont ESA route whilst claiming UC.

     
ElaineS
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Thank you for reply Will.  Mum is a lone parent (just the two of them) so when they lose CTC and CHB it will have a huge impact on finances.  I have now explained the situation to her and she is going to end CTC and CHB before the end of May and claim ESA for him as they cannot afford to lose everything.

     
Ken Butler
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HI,

I understand that in order for a disabled young person to claim and be awarded IBESA their parents must stop claiming CTC and CHB for them.

But is this also the case with a caim for New Style ESA where the object is to get a LCW decision?

Is it possible for a parent to continue to claim CTC and CHB for their disabled son/daughter while at the same time the disabled son/daughter makes a claim for New Style ESA that will progress to a WCA appointment and LCW decision?