UC and disabled students

Hi,
A theoretical scenario – for those in ‘full’ digital UC areas.
Under the old ESA system a person could claim ESA as a disabled student, if they are getting PIP.
Reg 14 of the UC regs allows someone to claim UC despite being in FT ed but they have to be both getting PIP and have LCW.
So am I right that under UC a full time student getting PIP cannot be paid any UC until after 3 months once they have been assessed as having LCW (assuming they can’t be treated as having LCW for work under any of the rules in schedule 8)?
The scenario I am thinking of is a 20 year old still in ft non advanced education on PIP, the parent’s CB and CTC will have stopped at the 20th birthday. Currently they claim ESA as soon as the CB and CTC end. Under UC do they claim but get no UC for the first 3 months awaiting the LCW determination?
Many thanks.

Jane

I’ve a horrible feeling that you are right. I think CPAG took a look at this when the Regs came out, it may be worth enquiring with them.

I think having LCW as an inherent personal characteristic on the one hand and having the LCW element included in the award on the other are two different things.

A person has LCW if it has been determined that s/he has LCW following an assessment under Part 5 of the UC Regs.  In a perfect world that would be established within a matter of days after the claim is made: you wouldn’t receive the LCW element for three months, but you would already have established that you have LCW and could therefore claim as a student.  But in real life the assessment might take longer than that and the determination might not be made until after three months have gone by.  The key question then is whether that determination is retrospective: do you have LCW from the point when you first raised the matter with DWP or only from the point at which the determination is made?  Surely it has to be retrospective - otherwise entitlement would differ from case to case depending on the lottery of assessment delay

If they put in a claim for contributory ESA (which they won’t be entitled to but could be entitled to credits) would they be treated as having LCW under reg 30 provided they send in fit notes?

would be interested in a definitive answer as well as lots of my clients are ft students.

Oh no - having looked into it further - at page 990 CPAG - you cannot get LCW credits for weeks in which you are entitled to UC unless you are also entitled to ESA. So I think the cont ESA claim for credits only would fail and therefore can’t get round it that way.

Thanks, I think I agree with HB Anorak’s interpretation - both in terms of what the regs say (or don’t say) and what is likely to happen in practice.

Reg 28 says when the LCW element can be paid from, but I can’t see anything about when you can have LCW.

Daphne’s idea about claiming ESA credits is interesting - explaining that to clients is going to be even worse than underlying CA! “you should claim this even though we know you’ll get refused .....”

I have asked the CPAG helpline, they are going to look to see if they can find anything definitive.

I’m going on the LASA UC training course on Monday - so if anyone is listening you can expect this question!

Jane

That’ll be on Monday then Jane! I think the answer will be what I’ve put above unless I can find anything else…

Look forward to seeing you on Monday - I’ll have the law books at the ready…

great, see you on Monday!

This was CPAG reply when I was asked this on a training course last year:

The ‘treated as having LCW during the assessment phase’ provision will only affect claimants who have claimed ‘new style CESA’ under the 2013 ESA Regulations as there is no’ assessment phase’ within UC. Those who are treated as having LCW while waiting for a LCW decision after claiming new style CESA should qualify for UC as a disabled student if they are getting DLA or PIP. This is because the condition in reg 14 of the UC regs is that the student ‘has LCW’ which is defined in reg 39 as including having LCW for the purposes of part 4 of the ESA 2013 Regulations which includes begin ‘treated as having LCW’ while waiting for a LCW determination (reg 26).

That’s the length and the breadth of it really Sarah. All they need to do is make minor amendment to UC regs to same effect as ESA regs and problem wouldn’t be there.

A potential problem could be how the term “on the basis of an assessment” is interpreted.

Reg 39 of the Universal Credit Regulations says -

39.—(1) A claimant has limited capability for work if—

(a) it has been determined that the claimant has limited capability for work on the basis of an assessment under this Part or under Part 4 of the ESA Regulations; or

(b) the claimant is to be treated as having limited capability for work (see paragraph (6)).

Under UC, can someone who has submitted fit notes but is awaiting a WCA be said to have had “an assessment”?

Or does the term “on the basis of an assessment” in reg 39(1)(a) refer just to Part 5 of the UC Regulations with “or under Part 4 of the ESA Regulations” being ‘free-standing’?

I was thinking about this yesterday Ken and pondering as to whether the “assessment under this part” implied that an assessment was only in relation to UC and that if someone could fit themselves into any part of part 4 of the ESA regs, then they might not have a problem.

However, I came to the conclusion that this wouldn’t work because. of reg. 39(1)(a) UC regs starting with the term “determined” - reg.26 ESA regs (which would allow for the necessary exemption whilst waiting for an assessment) begins by stating:

26.—(1) A claimant is, if the conditions set out in paragraph (2) are met, to be treated as having limited capability for work until such time as it is determined

So whether or not the assessment is actually required under reg.39(1) in respect of ESA, the need for a determination to have happened clearly wouldn’t be met by the provisions of reg.26 as the claimant is only treated as LCW until such a determination takes place.

I think I need to lie down now…..

There’s no need, of course, to fit into the UC Reg 14(b) exemption if you’re not receiving education in the first place under Reg 12.  The theoretical student in the OP is not a qualifying young person, nor doing advanced education and is unlikely to be getting a maintenance loan or grant as defined by Regs 2 & 68(7) UC.  In particular, any payment to help a student under 21 yrs old complete a course which is not advanced education, which presumably maintenance would represent, would not be considered a grant for the purpose of Reg 12(2)(b).  That would just leave Reg 12(4), ie DM satisfied that the course/training was compatible with any work-related requirements that might be imposed.

That obviously raises the question what requirements are capable of being imposed pending the LCW determination.  Potentially all of them it would seem as section 22 WRA 2012 appears applicable.  However, it depends on whether the law gives the claimant the benefit of the doubt about both LCW and LCWRA prior to the respective assessments being carried out.  If so, the disabled student could rely on section 19(2)(a) WRA 2012 to escape any work-related requirements being imposed.  The 3-Judge panel of the UT in SSWP v IM was not prepared to contemplate even a WFI taking place ahead of the LCW/LCWRA assessment (see paras 26, 88 & 93 of the judgment).  That naturally followed from the risk management principles underlying its judgment.  And it was in spite of Reg 3(3) of the Work Related Activity Regs 2011 providing that any work-related activity requirement ceased if the claimant “became” a member of the support group, which might otherwise have been construed as suggesting that work-related activity was permissible prior to LCWRA assessment (see section 19(5) WRA 2012 for the equivalent provision in UC).  I think IM is strong authority for the proposition that where LCW/LCWRA is being assessed for the first time, as would be the case with the OP’s theoretical student, work-related requirements cannot be imposed until the assessments are completed.  As the “substantial risk to health” ground is carried over from old style ESA to UC, I think IM remains good law for UC in this regard.  If that’s correct, then it seems no work-related requirements could be imposed on the disabled student so there’d be no risk of the course being found incompatible with them.  It follows that they would not be receiving education under section 4(1)(d) WRA 2012 by virtue of Reg 12 UC, which in turn makes Reg 14 irrelevant.

If that’s wrong, the disabled student could apply under Reg 99(1)(a) and (5)(c) UC to escape the work search requirement and Reg 99(5A) to escape the work availability requirement (arguably the two most onerous UC work-related requirements).  It seems a sick note is all that would be needed to satisfy the “unfit for work” condition in Reg 99 as opposed to having to demonstrate LCW which, as the main discussion in this thread shows, might not be easy pre LCW assessment.  That would just leave some work preparation and work focussed interviews as the only work-related requirements that the course could be declared incompatible with under Reg 12(4) above, and I think the risk of that happening would be low.  Again, that would leave the OP’s student not receiving education under Reg 12. 

On the general point, I agree with HB Anorak that LCW should be retrospectively awarded if it cannot be awarded until the LCW determination is made.  Otherwise, as he says, the start date of the UC award would be a complete lottery.  However, I think CPAG’s advice is arguably right and that LCW is capable of existing from the outset.  Paul, I think it’s possible to reconcile Reg 26 ESA Regs 2013 with Reg 39(1)(a) UC Regs by interpreting “treated as having LCW” in Reg 26 as “treated as if it had been determined that the claimant has LCW on the basis of an assessment until such time as it is actually determined (a) whether s/he has LCW etc”.  The fact that the claim for new style ESA is likely to be refused (and, therefore, terminated) before the actual LCW assessment takes place on the ground that the disabled student doesn’t satisfy the contribution conditions shouldn’t prevent the Reg 26 determination as above being conclusive for the question of LCW in Reg 14(b) UC.  See Reg 40(1) UC etc Decision and Appeal Regs 2013.  It would remain conclusive I think until the awaited LCW determination was made.

Here are the answers to some questions I put to the DWP relating to disabled students and Universal Credit -

How in practice can a full time student be awarded universal Credit on the grounds of limited capability for work? 

DWP: 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 - and are in receipt of an attendance allowance, DLA or PIP.

Under ESA someone can claim ESA as a disabled student if they are getting DLA or PIP (as they can be treated as having a limited capability for work).
I’m not sure in practice how it’s possible for a full time student to claim Universal Credit on the grounds of having a limited capability for work.

DWP: Please see the first point, above.

Regulation 14 of the UC Regulations 2013 allows someone to claim UC despite being in FT education but they have to be both getting DLA and PIP and have a limited capability for work.

DWP: Please see the first point, above.

Schedule 8 of the regulations specifies those who can be treated showing a limited capability for work.

DWP: Schedule 8 ( and for LCWRA, Schedule 9) only details the very specific health conditions and treatments which enable a Decision Maker to make a determination of LCW without the need to refer the claimant for a WCA: it is not an all-encompassing list of what may constitute having LCW. 

This does not include full time students who are getting DLA or PIP. 

DWP: Correct: please see the point above about Schedule 8

Neither does it include those who are submitting medical evidence and have not had a work capability assessment. 

DWP: Please see the point above about Schedule 8

This means that a full time student can only be accepted as having a limited capability for work after a work capability assessment has been carried out.

DWP: In this instance, having limited capability for work means, confusingly, submitting medical evidence of having a health condition or disability rather than having been determined as having LCW following a WCA.

Regulation 41 of the regulations would allow a full time student to be assessed as to whether they have a limited capability for work.

DWP: Correct

However, regulation 28 would prevent an award of the limited capability for work element being awarded before a 3 months waiting period (although requiring someone to submit medical evidence during this time). 

DWP: Correct

On the basis of the above how is a full time student able to establish entitlement to UC?

DWP: The confusion arises over the use, in this instance, of the term ‘having limited capability for work’ when it should say ‘submitting medical evidence’. 

If they get PIP and claim UC they will not be eligible for UC – as they have not has a LCW determination.

DWP: Please see the last point, above.

Even if they submit medical evidence Schedule 8 does not allow them to be treated as having a limited capability for work.

DWP: It may do if the claimant has one of the conditions or treatments listed in Schedule 8.

On the face of it, this means that a decision to refuse their UC claim will be made shortly after they submit it. –denying them the actual opportunity of having a work capability assessment?.

DWP: As above, the confusion arises over the use, in this instance, of the term ‘having limited capability for work’ when it should say ‘submitting medical evidence’. 

Ken Butler - 13 April 2016 03:48 PM

DWP: In this instance, having limited capability for work means, confusingly, submitting medical evidence of having a health condition or disability rather than having been determined as having LCW following a WCA.

They’re certainly right that this is confusing! So, as I understand it, DWP are claiming that someone wanting to claim UC as a disabled student doesn’t have to go through the WCA but just submit ‘medical evidence of having a health condition or disability’ (which presumably an award of PIP ought to confirm!). And what happens if there is a dispute about that evidence? Or are they saying it’s going to work like now with irESA?

Did you get that via operational stakeholder’s Ken? There needs to be some clear guidance if what they are saying is correct

Hi Daphne,

I have to confess that I did get this via a query to Operational Stakeholders.

I’ll follow this up and ask if guidance will be issued and if a response can be given on this at the next operational stakeholder’s meeting.

Astonishing. Thanks for sharing this Ken, it has answered a few of the UC questions I had.

I particularly like the way that the majority of the answers give the impression that you should have somehow picked up on what the regulations ‘should say’, and any perceived problem is caused solely by your stubborn insistence on reading only the words of the regulations as written…

Jon

Absolutely. Plus, iin practise, Iwhat are the chances of the DWP ground staff allowing a claim from a disabled student? Negligible I would imagine based on that.

Jon Shaw - 13 April 2016 05:16 PM

Astonishing. Thanks for sharing this Ken, it has answered a few of the UC questions I had.

I particularly like the way that the majority of the answers give the impression that you should have somehow picked up on what the regulations ‘should say’, and any perceived problem is caused solely by your stubborn insistence on reading only the words of the regulations as written…

Jon

but as we all know the law is irrelevant.  what matters is what they write in the decision makers guide.

Ken Butler - 13 April 2016 04:48 PM

I’ll follow this up and ask if guidance will be issued and if a response can be given on this at the next operational stakeholder’s meeting.

Thanks Ken - I look forward to it ;)

Hi,

Just giving this a ‘bump’, has anyone had a case involving UC for a disabled student yet?

I’ve got one coming - person in UC full area, in ft ed, on PIP, currently parents claim CTC etc, but young person is coming up to 20th birthday…...

Will they be able to claim and be paid UC from 20th birthday (as per the DWP Magical Realism approach detailed above) or do they have to wait for WCA?

Ta!

Jane