Universal credit for young people without parental support

Jessica Strode looks at rules regarding entitlement to universal credit for 16-17 year olds and under-21 year olds who are ‘without parental support’.

Under section 4 of the Welfare Reform Act 2012, the basic conditions of entitlement for universal credit (UC) include that a claimant is at least 18 years old and is not receiving education.1s4(1)(a) and (c) Welfare Reform Act 2012 Exceptions to these rules are provided by the Universal Credit Regulations 2013 (UC Regs).

Regulation 8(1)(g) of the UC Regs provides that the minimum age of entitlement is reduced to 16 where claimants are ‘without parental support’ (Note: regulation 8(1)(g) does not apply to 16/17-year-old care leavers.2Reg 8(1)(2) UC Regs)

Regulation 14 of the UC Regs provides an exception from the requirement not to be receiving education for claimants aged up to 21 (or 21 where they turn 21 during the course), where the course is non-advanced education and the claimant is ‘without parental support’.

‘Without parental support’ is defined by regulation 8(3) of the UC Regs, and essentially requires that the young person is not being looked after by a local authority and either has no ‘parent’ or cannot live with her/his parents (including because of estrangement), or is living away from them with neither parent able to support her/him financially for specified reasons. Also, regulation 8(4) of the UC Regs provides that ‘“parent” includes any person acting in the place of a parent’.

CPAG has received reports of 16/17 year olds who are estranged from their parent(s) and have moved in with a boy/girlfriend who still lives with her/his parent(s) and are then refused UC because they are living with a ‘person acting in the place of a parent’ – ie, their boy/girlfriend’s parent(s)). Eighteen to 21 year olds in non-advanced education face the same issue.

Caselaw tells us that not all adults in situations such as this are acting in the place of parents. Specifically, for example, immigration sponsors3R(IS) 9/94, available at administrativeappeals.decisions.tribunals.gov.uk and ex-foster parents after the care order has ended4CIS 11766/1996, available at rightsnet.org.uk/resources/income-support are not acting in the place of parents.

The Decision Makers’ Guide (DMG), used by DWP legacy benefit decision makers, states that to determine if a person is acting in the place of a young person's parents, the decision maker should consider: ‘factors such as’ whether the person provides: supervision and financial, moral, social or other care and guidance, shelter, food and clothing, and, is responsible for any necessary disciplinary action as would be appropriate for someone the same age as the young person.5para 20668 DMG

In addition, caselaw provides that the decision maker must consider the ‘degree of commitment and permanence’ in the arrangement (a temporary arrangement will not count); whether there is ‘some degree of parity or equivalence between the parent and any person who may be acting in the parent’s place’; and that ‘the adult must in practice be acting broadly in a way that a parent would’. The adult must also not be providing financial support, have included the young person in her/his own benefit award, or claimed child benefit for her/him.6NP v SSWP [2009] UKUT 243 (AAC)

The Advice for Decision Making staff guide (ADM), used by UC decision makers, states only (in contrast to the relatively helpful DMG): ‘(p)arent includes any person acting in the place of a parent’. Mistakes are therefore more likely to be made by decision makers deciding UC claims.

Where there is a dispute as to whether someone is acting in the place of a claimant’s parent, arguably the ‘decision maker should accept the evidence from the young person or representative unless there is stronger evidence to the contrary or the evidence is self contradictory’ since this is the standard of proof provided elsewhere in the ADM.7para E1054 ADM re living away from parents due to ‘serious risk to physical or mental health’; reg 8(3)(b) UC Regs

If you are an adviser and have a 16/17-year-old client in this position, please use CPAG’s judicial review pre-action template JR129 ‘Claim closure as estranged 16/17 year old “receiving education” or “living with someone in place of a parent”’.8cpag.org.uk/welfare-rights/judicial-review/judicial-review-pre-action-letters/students

Regulation 8(1)(b) of the UC Regs provides that the minimum age of entitlement for UC is reduced to 16 where a person ‘is awaiting an assessment’ to determine limited capability for work (LCW) and has provided a fit note.

A problem arises when a 16/17 year old who will have LCW once assessed cannot get UC because (using DWP phraseology) ‘the DWP computer system does not allow a referral to medical services to be made unless an award of UC is in place’. This confuses ‘awaiting an assessment to determine LCW’ with ‘having been referred for a medical examination’, which is not the condition in regulation 8(1)(b) of the UC Regs. Judge Jacobs confirmed in SSWP v RM [2014] UKUT 42 (AAC), considering the analogous employment and support allowance provisions, that an ‘assessment’ does not ‘necessarily equate with a medical’. This is because an assessment is carried out to decide whether or not a claimant has LCW. As part of that assessment the DWP may, or may not, refer her/him for medical examination. The evidence gathered at the medical is then used by the DWP to conduct the assessment.

Thus, the provision of a fit note which states a claimant is not capable of work raises the question of whether or not that claimant has LCW and it does not matter whether or not that claimant is referred for a medical. Regulation 8(1)(b) of the UC Regs requires that someone be awaiting an assessment to determine whether s/he has LCW. Once a fit note has been provided, a claimant is immediately awaiting an assessment to determine whether s/he has LCW.

Alternatively, if UC entitlement is dependent on the claimant actually having LCW (under regulation 8(1)(a) of the UC Regs, the requirement is that the person ‘has LCW’), then refusing to investigate whether that person has LCW before deciding their claim is arguably unlawful. R (Kauser and JL) v SSWP (CO/987/2020) considered the analogous requirement to ‘have LCW’ for full-time students receiving personal independence payment to qualify for UC. In Kauser, the parties agreed that ‘upon the claimants claiming universal credit, the Secretary of State was required to determine whether they had limited capability for work […] by conducting a work capability assessment’. New regulations9In force from 5 August 2020, the Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2020, No.827 have since been introduced that provide that a claimant must have been determined to have LCW before starting her/his course. However, no such regulations have been introduced to prevent a 16/17 year old from arguing that the DWP must decide whether s/he has LCW before deciding her/his UC claim where LCW will exempt her/him from the requirement to be 18 rather than from the requirement not to be receiving education.

Claimants without parental support who are aged 16/17, or 18-21 and in non-advanced education, are entitled to UC. If claims are refused acting in the place of a parent’, check the nature of the relationship and remember that not all adults act in the place of parents.

Those 16/17 year olds who will have LCW once assessed should challenge decisions that refuse them UC because they ‘have not yet been assessed to have LCW’ as they are awaiting an assessment as soon as a fit note has been provided and/or because it is unlawful to decide their claim without assessing first whether they actually have LCW.