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disabled students

Vonny
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I have just read this https://www.rightsnet.org.uk/welfare-rights/news/item/further-limitation-of-exception-to-the-universal-credit-basic-condition-not-to-be-receiving-education-for-those-in-receipt-of-a-disability-benefit

So anyone already on a course and does not get their new style credits only ESA assessment by 15th Dec will not be able to claim UC and what happens to current UC claimants who started their course before being found to have lcw?

Why has this government got an issue with disabled people being able to afford an education?

dereksi
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Hi Vonny

I can’t see how this would apply retrospectively as the amendment only appears to apply to UC claims made on or after 15 Dec. Given this, those students who are already on UC by virtue of having lodged a credits only claim for ESA to establish a LCW should continue to receive UC. That’s my reading of it anyways.

However, the situation seems grim for anyone who hasn’t established a LCW by 15 Dec. It may still be possible for some young people who have reached the Sept after their 19th birthday and who are in some forms of non advanced education such as a life skills course to argue that they should not be treated as ‘receiving education’. This could be done on the basis that this specific cohort are only treated as ‘receiving education’ if their attendance on their course is not compatible with any work related requirements attached to their UC claim. A course of that nature may have a very high degree of flexibility and be able to accommodate the individual’s work related requirements .       

However apart from that specific group most other students are likely to be cut off from Universal Credit by these new rules, including 16-19 year olds in non-advanced education and students of any age in full time advanced education. 

Peter Donohue
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just had a case on this very subject today and whilst I have followed the gist of progress and the workarounds/law changes, further challenges etc, and I am aware that:-

a) the JR has now it seems been heard on the latest changes but judgement not yet handed down

b) further changes (which might of course be affected by the outcome of that JR) are due by 15.12.

so, for now, going off the posts in this thread, my client would have to claim so-called “credits only” NSESA to hope be placed into any LCW category….BUT ....he will not of course have any chance of undergoing and completing a WCA by 15/12 from a claim made today…...other replies seem to say that a claimant would need a determination of LCW by the 15th and not simply be “in the process” of obtaining LCW status thru their NSESA claim by the 15th.

I appreciate that LCW can only be determined by WCA and that WCA only has to be undertaken (save for certain cases) by the 13th week…....so are we basically saying it is too late now to use the workaround???

I am minded to advise to claim NSESA in case everything reverts back as a consequence of the JR outcome??

dereksi
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Hi Peter

I think you are right - lodging a credits only ESA claim now unlikely to work, as any decision on LCW won’t be reached before law changes on 15 Dec. Still worth lodging a credits only claim tho, just in case the JR is successful.

In addition in any case where there is a possibility that someone will remain in full time non-advanced beyond the Sept after their 19th birthday, a credits only claim for ESA should be lodged. Establishing in advance that someone in this group has a LCWRA will ensure that they will become eligible for UC from the Sept after their 19th birthday onwards. This is because there can be no incompatibility between that students attendance on their course and any work related conditions if they are someone who falls into the no conditionality group.  This should ensure they do not fall into any of the groups treated as receiving education under Reg 12. 

Derek

Daphne
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SSAC October minutes include a letter from DWP to SSAC which sets out which students are still eligible for UC - useful as a reminder…

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As has been mentioned previously on this thread, the JR in relation to Flinn Kays has been heard, but the judgement has still not been handed down. I wonder, does anyone have any idea of timescale in relation to this case?
Thanks

Ros
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High Court decision in Flinn Kays case just in - judicial review challenge to UC disabled student rules dismissed -

https://www.bailii.org/ew/cases/EWHC/Admin/2022/167.html

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Thanks for that, will give it a read, but sounding very disappointing.

Peter Turville
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Whilst disappointing the decision in Kays is yet another of the umpteen steps in the removal of students from entitlement to benefits that dates back over two decades beyond the CofA decision in Clarke & Faul and students increased reliance on the often limited or non-existent support under student funding provisions.

It yet again highlights the lack of ‘joined up thinking’ between the DWP and DOE on financial support for specific groups of students who fall between the (ever widening) cracks of support available from DWP and DOE.

Carolyn Green
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I am going round in circles with 16/17 year olds and would welcome any feed back (I realise I may be clutching at straws), as although I initially, reluctantly, accepted that a disabled17 year old in full-time non-advanced education would now not be eligible to claim UC if they hadn’t already had a WCA,  I have changed my mind.

This is my argument:

The basic condition about ‘not receiving education’ comes from ‘The Welfare Reform Act 2012 Reg 4(1)(d).’

So the claimant has to be :

(1)(a) at least 18 years old and (d) not receiving education.
(3) regulations may specify a different minimum age for prescribed cases *

*This is the clause which I think introduces UC reg 8 and means that there are some standalone exceptions to the basic conditions for 16/17 year olds.  If the (a) ‘must be 18 clause’ does not apply to certain 16/17 year olds then equally the (d) ‘is not receiving education’ clause must also not apply?

In other words 16/17 year olds are exceptions to the basic conditions stated in the Welfare Reform Act 2012 reg 4.  If this is the case then if we look at UC reg 8(1): https://www.legislation.gov.uk/uksi/2013/376/regulation/8 :

Only one of the seven standalone reasons (a to g) has to apply for a 16/17 to be eligible to claim UC.  The exception to this rule being reasons c, f and g if the claimant is a care leaver.  We have to read the reason and if it applies we look no further.  For example, a 16 year old still in school with no illnesses or disabilities and who has no parental support could surely claim UC under clause (g).  There would be no question (or even a possibility) of a successful Work Capability Assessment.  If a disabled 17 year old submits a Med3 the surely clause (b) should be applied and the DWP should not look at UC reg 14.

Finally UC reg 14 ( https://www.legislation.gov.uk/uksi/2013/376/regulation/14) is headed up ‘Exceptions to the requirement not to be receiving education’.  There is no requirement (or mention) of education in UC reg 8 and therefore, so long as one of clause (a) to (g) apply (taking into account the care-leaver exceptions) then the decision maker should look no further.  16/17 year olds are special cases and their claim for UC should be determined under UC reg 8.

I really appreciate any feed-back as my client is 17, turning 18 on 06/02/22, and the work coach has closed the claim as he is in full-time non-advanced education, regardless of his ability to submit ‘fit’ notes.

Peter Turville
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You don’t state the grounds on which your client has a current award of UC.
Depending on your clients circumstances, unless a UC Reg 8 criteria applies, UC Reg. 14 would appear the relevant provision to consider - the ‘without parental support’ qualifying condition?

Carolyn Green
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Hi Peter.

The claim was made 3 weeks ago on the basis that the client is 17 and is awaiting an assessment to determine whether he has LCW and has a statement given by his GP that he is not fit for work.

He was made an appointment at the local Jobcentre to discuss his claimant commitment but when he arrived he and his appointee (his foster mum) were advised that the claim had been closed as he is in full-time education.

Peter Turville
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Carolyn Green - 03 February 2022 10:50 AM

Hi Peter.

The claim was made 3 weeks ago on the basis that the client is 17 and is awaiting an assessment to determine whether he has LCW and has a statement given by his GP that he is not fit for work.

He was made an appointment at the local Jobcentre to discuss his claimant commitment but when he arrived he and his appointee (his foster mum) were advised that the claim had been closed as he is in full-time education.

Hi Carolyn
I think, unfortunately, that your client is caught by the 15/12/21 amendment referred to at the top of this thread. That is unless he had already made use of the ‘workaround’ and made a claim for ESA prior to 15/12/21 and is still awaiting a WCA. The Govt states the policy intention was always (dubious!) that under UC only a claimant who was already classed as both ‘disabled’ and as having LCFW could then commence a course of education and the UC Regs. have now been made clear so as to achieve that intention.

I am open to someone disagreeing with my opinion for the sake of clients in this situation!

nevip
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Carolyn Green - 03 February 2022 09:57 AM

I am going round in circles with 16/17 year olds and would welcome any feed back (I realise I may be clutching at straws), as although I initially, reluctantly, accepted that a disabled17 year old in full-time non-advanced education would now not be eligible to claim UC if they hadn’t already had a WCA,  I have changed my mind.

This is my argument:

The basic condition about ‘not receiving education’ comes from ‘The Welfare Reform Act 2012 Reg 4(1)(d).’

So the claimant has to be :

(1)(a) at least 18 years old and (d) not receiving education.
(3) regulations may specify a different minimum age for prescribed cases *

*This is the clause which I think introduces UC reg 8 and means that there are some standalone exceptions to the basic conditions for 16/17 year olds.  If the (a) ‘must be 18 clause’ does not apply to certain 16/17 year olds then equally the (d) ‘is not receiving education’ clause must also not apply?

In other words 16/17 year olds are exceptions to the basic conditions stated in the Welfare Reform Act 2012 reg 4.  If this is the case then if we look at UC reg 8(1): https://www.legislation.gov.uk/uksi/2013/376/regulation/8 :

Only one of the seven standalone reasons (a to g) has to apply for a 16/17 to be eligible to claim UC.  The exception to this rule being reasons c, f and g if the claimant is a care leaver.  We have to read the reason and if it applies we look no further.  For example, a 16 year old still in school with no illnesses or disabilities and who has no parental support could surely claim UC under clause (g).  There would be no question (or even a possibility) of a successful Work Capability Assessment.  If a disabled 17 year old submits a Med3 the surely clause (b) should be applied and the DWP should not look at UC reg 14.

Finally UC reg 14 ( https://www.legislation.gov.uk/uksi/2013/376/regulation/14) is headed up ‘Exceptions to the requirement not to be receiving education’.  There is no requirement (or mention) of education in UC reg 8 and therefore, so long as one of clause (a) to (g) apply (taking into account the care-leaver exceptions) then the decision maker should look no further.  16/17 year olds are special cases and their claim for UC should be determined under UC reg 8.

I really appreciate any feed-back as my client is 17, turning 18 on 06/02/22, and the work coach has closed the claim as he is in full-time non-advanced education, regardless of his ability to submit ‘fit’ notes.

In my view one of the problems with that argument is that it overlooks regulation 12

HB Anorak
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I think I can see where you are coming from in that Regs 4, 5, 8 and 12 form a bit of a wobbly edifice, but I’m not convinced by the whole argument.

I don’t really buy the idea that Reg 8 leapfrogs s4(1)(b) to (e).  All Reg 8 does is put you in the same position as someone who satisfies s4(1)(a) by being 18.  Reg 8 is introduced as prescribing circumstances in which the basic condition in s4(1)(a) only can be satisfied by a 16/17 year old, it says nothing about the additional basic conditions.

I do think there is some circularity in the Regs, but unfortunately not in a way that helps the client you are describing.  A QYP is to be regarded as receiving education - Reg 12; a QYP is defined in Reg 5 as a teenager in non-advanced education, but not someone who is receiving UC.  That applies to your client.  Reg 14 allows a young person in non-advanced education to be entitled to UC if they are without parental support, and here is where it seems to go round in circles for me: the claimant only needs to rely on Reg 14 if they are caught by Reg 12, but as soon as they become entitled to UC by virtue of Reg 14 they are no longer caught by Reg 12 because they no longer satisfy Reg 5.  It does make my brain hurt a bit!

It doesn’t help your disabled claimant who does have parental support though.

[ Edited: 3 Feb 2022 at 05:43 pm by HB Anorak ]
Charles
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HB Anorak - 03 February 2022 05:39 PM

I do think there is some circularity in the Regs, but unfortunately not in a way that helps the client you are describing.  A QYP is to be regarded as receiving education - Reg 12; a QYP is defined in Reg 5 as a teenager in non-advanced education, but not someone who is receiving UC.  That applies to your client.  Reg 14 allows a young person in non-advanced education to be entitled to UC if they are without parental support, and here is where it seems to go round in circles for me: the claimant only needs to rely on Reg 14 if they are caught by Reg 12, but as soon as they become entitled to UC by virtue of Reg 14 they are no longer caught by Reg 12 because they no longer satisfy Reg 5.  It does make my brain hurt a bit!

There is certainly some circularity in that scenario, but I think the end result is not in doubt - they are entitled to UC, and will not be a QYP.

I think it’s even less straightforward where an exception in Reg 14 does not apply. As discussed in this thread.

I can think of two possible ways of interpreting the regs:

1) It depends which comes first:
If the claimant was already on UC, and then begins a course of non-advanced education, Reg 5(5) bites, so they will not become a QYP, and UC will continue.
If the claimant was already a QYP before claiming UC, then Reg 12(1A) bites, so they will not be entitled to UC (unless an exception in Reg 14 applies).

2) The meaning of Reg 5(5) is that someone who would ANYWAY receive UC even if they had been a QYP (due to Reg 14), is not a QYP.

I think DWP would probably argue for the second interpretation. I also think it is likely that the “mischief” Reg 5(5) is coming to “fix” is a scenario where a QYP would ANYWAY receive UC (i.e., to stop the child element being paid for them when they are receiving UC in their own right).

[ Edited: 3 Feb 2022 at 10:22 pm by Charles ]
nevip
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I agree with Carolyn as far as the end result goes, but unfortunately we will often have to undertake the laborious task of walking the DWP through the statue in a manner that makes it easier for them to follow given the way their minds tend to leap frog around (before alighting on the guidance reflecting Reg 12 and then getting stuck there).

To take one example.  16-17-year-old without parental support.  The statute should be read as follows.

To meet the basic condition in s4(1)(a) of the Act then the claimant must be at least 18.  However, this minimum age requirement is disapplied by virtue of Reg’ 8(1)(g) of the UC Regs’.  But this doesn’t disapply the other basic conditions in (b) to (d), all of which must be met. 

For s4(1)(d), not receiving education, we must turn to Reg’ 12(2) where receiving education is defined.  But note, if the person is not receiving education under this definition then they can be treated as receiving education under Reg’ 12(1A) as a qualifying young person, (subject to Reg 12(1B))

Then by going straight to Reg 14(a).  If it applies, then all the facets of being in education fall away as consequently, the claimant doesn’t have to meet the basic condition in s4(1)(d) in the first place.  In other words, it doesn’t matter whether she is in education or not.

The same result is achieved but in a simpler, more focused manner which even the DWP should be able to follow.

[ Edited: 4 Feb 2022 at 08:37 am by nevip ]
Ianb
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But in Carolyn’s case they have a foster parent which, as I understand it, means that do have parental support and therefore do not meet the regulation 14 exemption.

Carolyn Green
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Thank you all so much for your input on this!  As a team we are still debating…

Jon Shaw
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Has anyone seen any hint of the High Court decision being challenged further? I can’t see anything on the Leigh Day website or the CoA case tracker…

Jon