Universal credit and disabled students – no way in?
Angela Toal describes amended rules regarding disabled students and eligibility for universal credit.
Introduction
In August, new regulations were introduced which narrow the options for disabled students’ entitlement to universal credit (UC). This article sets out the implications of the change, and what options remain for disabled students to get UC.
The changes
Amendment regulations (the Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2020, No.827) came into force from 5 August 2020. They amend regulation 14(b) of the Universal Credit Regulations 2013, by restricting claims for UC to those students with a disability who have already been found to have limited capability for work (LCW) for UC (or been treated as having LCW under certain provisions). Specifically, someone must have LCW before s/he starts studying, where s/he starts education during her/his UC claim, or before claiming UC, where s/he is already in education when s/he claims UC. S/he must also get personal independence payment (PIP) or certain other disability benefits.
So, such students can no longer make a claim for UC and be assessed for LCW, as was advocated in a previous Bulletin article.1https://cpag.org.uk/welfare-rights/resources/article/universal-credit-and-disabled-students This argument was also the foundation of a successful legal challenge (regarding the rules before the changes) led by Leigh Day solicitors.2R (Kauser and JL) v Secretary of State for Work and Pensions, CO/987/2020, (6 October 2020); https://www.leighday.co.uk/News/Press-releases-2020/June-2020/Disabled-student-launches-legal-case-for-right-to The DWP says, regarding the changes: ‘The policy enables disabled people already assessed as LCW to enter or remain in education and better their prospects of obtaining work.’3para 7.2, Explanatory Memorandum to the amendment regulations, available at https://www.legislation.gov.uk/uksi/2020/827/pdfs/uksiem_20200827_en.pdf
Contributory ESA for credits for LCW
The advice to disabled students who are otherwise blocked from getting UC is to apply for contributory (new-style) employment and support allowance (ESA). Although they will not be entitled to any contributory ESA (in most cases at any rate), this will allow them to be assessed for LCW (to see whether they can get national insurance (NI) credits for LCW). If they are found to have LCW (or limited capability for work-related activity), then they can claim UC as they will now satisfy the requirement of having a determination of LCW.4Confirmed in an email from DWP to CPAG, 31 August 2020
Tactically, it may be a good idea for a young disabled person to go through this process as soon as possible after reaching age 16. Although receipt of certain other benefits stops someone from counting as a ‘qualifying young person’ (see section below), and therefore stops her/his parents claiming benefits for her/him, getting NI credits does not.
Note that CPAG has come across cases where the DWP is gatekeeping applications for contributory ESA. For such cases, there is a judicial review template on CPAG’s website that can be used.5JR93 at https://cpag.org.uk/welfare-rights/judicial-review/judicial-review-pre-action-letters/work-capability-assessments
Young students who were previously qualifying young people
Parents can get amounts in their UC for young students in non-advanced education who are ‘qualifying young people’. This applies to someone in non-advanced education of more than 12 hours a week who has not yet reached 1 September after her/his 19th birthday, as long as s/he started, was enrolled on or accepted on the course before s/he turned 19.6Reg 5 Universal Credit Regs 2013, No.376 (‘UC Regs’) There are similar, although more generous, rules for child benefit and child tax credit.
(Note that CPAG is involved in a case challenging the earlier end date of these amounts in UC.7https://cpag.org.uk/welfare-rights/resources/test-case/universal-credit-19-year-olds-full-time-non-advanced-education CPAG is arguing that the rules are irrational and discriminatory, as such young people usually cannot claim UC in their own right.)
In terms of young students with a disability, once these additional amounts end in their parents’ benefits, they would in the past have been eligible for ESA in their own right, provided they get PIP or disability living allowance.8Regulation 18 Employment and Support Allowance Regs 2008, No.794 As we have seen, the rules are different for UC, with no provision made for such young people
to be eligible for UC while in education.
Not ‘receiving education’?
In non-advanced education (ie, below the level of Higher National Certificate), it may be possible for a disabled student to qualify for UC through not counting as ‘receiving education’ for UC. This can apply despite being on a full-time course. The definition of receiving education for those in non-advanced education is that someone is:9Reg 12 UC Regs 2013
a qualifying young person (see above); or
on another full-time course for which a loan, grant or bursary is provided for maintenance; or
on a course that is not compatible with ‘work-related requirements’ – ie, what someone is expected to do in terms of looking for work.
If a non-advanced student has no loan or grant for maintenance (such funding is not generally available in England or Wales, but may be available in Scotland and Northern Ireland), is not a qualifying young person and her/his course is not incompatible with her/his work-related requirements, then s/he does not fit the definition of receiving education for UC. A disabled person might not have any work-related requirements, or might have reduced requirements due to her/his disability, which can be met alongside attending the course. If so, then s/he should not count as receiving education for UC. This means a claim for UC can succeed straightforwardly under the normal rules, without having to fit into one of the exception groups in regulation 14.
Conclusion
The government policy to enable ‘disabled people already assessed as LCW to enter or remain in education and better their prospects of obtaining work’ ignores the situation of young people who are moving from being a dependent on their parents’ claim to claiming benefits in their own right, and undermines their ability to continue in education. It also does not assist those who are on UC and waiting to be assessed for LCW (as advisers will know, it can be a long wait), and who in the meantime decide to start a course of education.
The options outlined above of applying for contributory ESA on a credits-only basis, or of attempting to be treated as not receiving education, are difficult both to understand and to action. They are essentially work-arounds, required because of the barrier to claiming UC that has been put in place. Young disabled students, and others, are in some cases leaving education due to the difficulties in getting UC while studying. Advisers are encouraged to feed any such cases into CPAG’s Early Warning System.10cpag.org.uk/scotland/ews for Scottish cases and cpag.org.uk/early-warning-system for the rest of the UK
 
2     R (Kauser and JL) v Secretary of State for Work and Pensions, CO/987/2020, (6 October 2020); https://www.leighday.co.uk/News/Press-releases-2020/June-2020/Disabled-student-launches-legal-case-for-right-to »
3     para 7.2, Explanatory Memorandum to the amendment regulations, available at https://www.legislation.gov.uk/uksi/2020/827/pdfs/uksiem_20200827_en.pdf »
4     Confirmed in an email from DWP to CPAG, 31 August 2020 »
6     Reg 5 Universal Credit Regs 2013, No.376 (‘UC Regs’) »
7     https://cpag.org.uk/welfare-rights/resources/test-case/universal-credit-19-year-olds-full-time-non-advanced-education »
8     Regulation 18 Employment and Support Allowance Regs 2008, No.794 »
9     Reg 12 UC Regs 2013 »
10     cpag.org.uk/scotland/ews for Scottish cases and cpag.org.uk/early-warning-system for the rest of the UK »