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Challenging disabled students refusal of UC – official error?
One of the most baffling areas of UC to follow and advise on recently has been the treatment of disabled students.
As we know, students cannot normally claim or be entitled to UC but an exception is made for those who are both disabled (in receipt of PIP/DLA) and incapable of work (assessed as LCW). The problem is that an assessment of capability for work cannot take place within UC until an entitlement has been established - so a chicken and egg problem arises that a new claimant can’t show they are entitled until they’ve had a WCA and can’t have a WCA until they can show they are entitled.
When challenged on these cases, DWP tended to adopt a “workaround” by essentially parking the claim until the WCA was conducted.
However Leigh Day have then launched a judicial review in a case where a claimant was refused UC. The DWP response to that has been that actually it isn’t an accidental chicken and egg situation but a deliberate policy decision that existing claimants ought to be encouraged into education.
https://www.leighday.co.uk/News/Press-releases-2020/June-2020/Disabled-student-launches-legal-case-for-right-to
Aside from being an insultingly weak justification for changing who is supported by the benefit system, I am struggling greatly to find any public evidence contemporaneous with the 2013 regulations which suggests that there was any intentional change in policy. In particular, there is nothing in the explanatory memo sent to SSAC which mentions anything about a change - the memo says:
34. In Universal Credit,as in the current benefit system, the majority of people in fulltime education are not to be entitled to benefit. However, there are to be some exceptions.
35. The regulations define the circumstances in which a person is to be treated as being in education and not entitled to Universal Credit. [...]
36. As now, there are a number of exceptions specified in regulations, and the following groups of full time students in advanced and non advanced education can still be able to qualify for Universal Credit and be treated as eligible adults:
[...] disabled students who are single or where they are part of a couple and one or both of them is disabled;
Note the two references to things remaining as in the current system and the description of the exempted group as being “disabled students” rather than “disabled claimants who begin study”.
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.
Utterly bizarre - I read this in disbelief yesterday. Absolutely unsatisfactory for disabled people.
And it still fails to recognise the situation for young disabled people in further education and life skills courses who reach the age they are no longer included in parents claims. No grants or loans. Just young vulnerable people usually with learning difficulties.
So do we have to advise people to make a credits only ESA and hope for an assessment asap before claiming UC as the get around
And have to remind UC repeatedly that young people doing FE and life skills that it should be considered compatible with any work related requirements
This will cause a lot of difficulty for some parents/guardians and also affects disabled young persons who move to supported living but are still “qualifying young persons” (unless one of the other provisions of regulation 14 applies).
I would assume that in the cases referred to by Vonny, they will have reached the age where they are no longer !qualifying young persons” so will not be caught by regulation 12 unless, for some reason, DWP think that 12(4) applies in any particular case -
(4) A claimant who is not a qualifying young person and is not undertaking a course described in paragraph (2) is nevertheless to be treated as receiving education if the claimant is undertaking a course of study or training that is not compatible with any work-related requirement imposed on the claimant by the Secretary of State.
Otherwise, I assume that we are looking at getting New Style ESA claims in early so that WCA can be carried out before the need to claim UC arises; or, where relevant, getting a HB claim up and running with an SDP, then benefit from legacy ESA rules (until the SDP gateway closes)
[ Edited: 5 Aug 2020 at 09:09 am by Brian JB ]This will cause a lot of difficulty for some parents/guardians and also affects disabled young persons who move to supported living but are still “qualifying young persons” (unless one of the other provisions of regulation 14 applies).
I would assume that in the cases referred to by Vonny, they will have reached the age where they are no longer !qualifying young persons” so will not be caught by regulation 12 unless, for some reason, DWP think that 12(4) applies in any particular case -
(4) A claimant who is not a qualifying young person and is not undertaking a course described in paragraph (2) is nevertheless to be treated as receiving education if the claimant is undertaking a course of study or training that is not compatible with any work-related requirement imposed on the claimant by the Secretary of State.
Otherwise, I assume that we are looking at getting New Style ESA claims in early so that WCA can be carried out before the need to claim UC arises; or, where relevant, getting a HB claim up and running with an SDP, then benefit from legacy ESA rules (until the SDP gateway closes)
Yes I was thinking about the people who are no longer qualifying young people, could the move to supported living whilst still a qualifying young person be argued as coming under exception of cannot live with parents due to a risk to mental health?
I am reminded of the judgement of LJ Hoffmann in Clarke & Faul:
One would therefore expect that a student’s exclusion from social security benefits would be mirrored by his entitlement to an education award and a student loan. Otherwise there would be an anomalous class of people who for no obvious reason were left to destitution without state support of any kind. It is of course possible that for some reason which escapes us, such an anomaly was intended by the draftsman. But the courts should, I think, try to construe the regulations to reflect a coherent policy unless the language clearly makes this impossible.
Clarke and Faul concerned ‘intercalating’ higher education students but the above would apply equally to those in non-advanced education caught by the the requirements of Reg 14 and the ‘clarification’.
It will be interesting to see if ‘work arounds’ such as claiming ESA(C) continue to assist (as far as they do in individual cases).
In a city of 30K higher education students all of the enquiries we receive on this issue concern young people in non-advance education. With the approach of the new academic year we anticipate enquiries from parents, support workers etc about young people attending basic skills courses etc. who will turn 20 in the academic year and cease to be a ‘qualifying young person’.
It appears, in the absence of alternative funding through grants and loans etc. for this class of students, it is the govts. intention to confirm it has created a new ‘anomalous group of people’.
The only practical advice for many in this situation would appear to be to abandon their course and then claim UC. I wonder if DWP will now provide information to parents, carers, learning disabilty teams, course providers etc. about the options facing these students?
“The policy enables disabled people already assessed as LCW to enter or remain in education and better their prospects of obtaining work.”
so if a claimant is already in receipt of ESA or has had a WCA for NSESA credits only - they can claim UC, and this will enable them to remain in education and better prospects for work ....
but if a claimant has not had a WCA for another benefit, and then needs to claim UC, this isn’t possible and therefore would not be eligible. This means that they would likely have to abandon their course of education (unless they had other support or income stream) so how does that assist to better prospects of obtaining work? surely acts against the very principle!
I increasingly believe this gov does not have any principles
I think we are going to have to remember the list of other exemptions to receiving education
For disabled students who are no longer qualifying young persons, e.g. they have reached the age of 20, reg 12 will not bite if it the course doesn’t fall within 12(2) unless reg 12(4) applies. I hope that work coaches would accept that 12(4) doesn’t apply in cases where the disabled person is on a life skills or similar course
For disabled students who are no longer qualifying young persons, e.g. they have reached the age of 20, reg 12 will not bite if it the course doesn’t fall within 12(2) unless reg 12(4) applies. I hope that work coaches would accept that 12(4) doesn’t apply in cases where the disabled person is on a life skills or similar course
I think life/basic skills courses should be ok and english for refugees has seemed fine so far with the work coaches here, fingers crossed
This is really bad news and just totally ignores the young people who have long term illness/disability but who can no longer to part of their parent’s ‘benefit household’ forcing vulnerable people to make a claim to nsESA delaying any financial support. I raised the issue with one of our MP’s in April and got this response:
I am told that the aim of regulation 14(b) is, however, not to enable a person to be referred for a Work Capability Assessment in order to determine whether they have LCW, but instead to encourage existing claimants (with health conditions) to take up education that may help them into work in the future. Thus, the Minister tells me, a person claiming Universal Credit will only be able to utilise regulation 14(b) if, for example, it had already been determined, in an earlier claim or a claim for Employment and Support Allowance, that they have Limited Capability for Work.
The Minister was however keen to point out that the Department is currently reviewing this policy.
So I assume the new regs are the outcome of the ‘review’.......
Just doubling down on what Brian JB said above, because I initially missed the significance of that and so have some contributors to the thread.
The cases that seemed to be irrationally caught by this new amendment were those of young adults with LD doing courses at a level that does not attract student finance (life skills etc) but too old to be included on their parents’ means tested benefit claims. But as Brian says, these courses will not satisfy the threshold definition of “receiving education” in the first place, so they are eligible in principle for UC. The possible complicating factor is Reg 12(4), which deems a person to be in education if their course is incompatible with work requirements, even if the course is below the Reg 12(2) level. People with moderate to severe LD will normally have LCWRA and often don’t even need a face to face assessment to establish that as it is obvious from the papers - so they won’t have any work requirements. But it does need the work coach to be sensible in the early weeks while the claimant is waiting for LCWRA to be confirmed - don’t set any work requirements that are incompatible with the course and proceed on the assumption that the claimant will have LCWRA
Does anyone know if there is a date and reference number for the Judicial Review.
Jim
Does anyone know if there is a date and reference number for the Judicial Review.
Jim
I don’t think it has permission yet.
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?