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Students and benefits eBulletin - March 2023

Universal credit overpayment recovery caselaw, Access courses and benefits, and claiming benefits when a course ends.

In this issue

  • Universal credit overpayment recovery caselaw
  • Access courses and benefits
  • Claiming benefits when a course ends

Universal credit overpayment recovery caselaw

On our advice line we regularly hear of cases where students have been wrongly advised by DWP and as a result end up with an overpayment of benefit. This might be students being wrongly told that they can stay on universal credit while they are studying, only to be told several months later that this was a mistake and they have to repay the money. Or it might be students who are told their student funding doesn't affect their universal credit, and six months later are told that in fact it should have affected their universal credit and they have been overpaid.

Unfortunately, all overpayments of universal credit are recoverable, even where this was due to an error by DWP. DWP can decide not to recover the money if someone requests this, but in practice such requests are seldom granted. However, a new decision K, R (on the application of) v Secretary of State for Work and Pensions [2023] EWHC 233 (Admin) has important implications for recovery of such overpayments.

The case concerned a parent whose 17-year-old son had started an apprenticeship, but the client wrongly kept getting the child element for this young person. She queried this a number of times, but was told that it was correct. Two years later she was told that she had been overpaid by more than £8,000.

At the High Court it was found that the Secretary of State’s decisions to refuse to waive the claimant’s UC overpayment were unlawful and breached the claimant’s legitimate expectation. The refusal to waive failed to give lawful regard to all relevant considerations.

'In accordance with the defendant’s (ie, the DWP’s) policy, the following matters were relevant considerations: 

  1. how the overpayment arose
  2. the debtor’s conduct, and in particular whether she acted in good faith
  3. whether and to what extent she took steps to notify the defendant of all relevant information and to query her entitlement

The third decision only addressed these matters to the very limited extent set out in [10]. This is manifestly inadequate.' (paragraph 129)

Basically, the parent had done all they could to query their entitlement, and keep DWP up-to-date with changes, but when she was repeatedly told it was correct she had a ‘legitimate expectation’ that this was the case.

You can read more about the case on the Public Law Project website, and there is also a link at the bottom of the webpage to advice for advisers and what it might mean for future cases.

Access courses and benefits

Various different types of Access course exist, but generally these are short courses which prepare a student for another course. Some are part of the Scottish Wider Access Programme (SWAP). Some are part-time and others are full-time. When it comes to universal credit (UC), what is crucial is whether or not the student counts as ‘receiving education’, and if they do, whether they are nonetheless in a group of students who is eligible for UC.

The Universal Credit Regulations 2013 (UC Regs), at regulation 12, define someone as receiving education if they are on a full-time advanced / higher education course. Advanced education is defined as being above the level of an NQ higher or advanced higher course. If this is the nature of the Access course then they will count as receiving education and will only be able to get UC if they are in certain groups (generally parents, someone with a non-student partner and some students with a disability) (regulation 14 of the UC Regs).

If the Access course is non-advanced / further education and the student is under 19 (or is 19 but was under 19 when they were accepted on, enrolled on or started the course) and on a course of more than 12 hours per week, then they will count as receiving education. This is also the case for anyone of any age on a non-advanced education course for which they are receiving a bursary maintenance allowance. Similarly to above, if they count as receiving education then they would only be able to get UC if they are in certain groups (generally parents, someone with a non-student partner and some students with a disability), but with an additional group in non-advanced education of someone under 21 (or age 21 if they turn 21 on the course) who is ‘without parental support’ (for example, estranged from their parents). If they are 20 or over (or are 19 and were already 19 when they were accepted on, enrolled on or started the course), and they don't get any bursary maintenance allowance, then they will only count as receiving education if their work coach thinks they are not able to meet their work-related requirements while on their course.

In both non-advanced / further and advanced / higher education, if the Access course is part-time then students may be able to get UC as long as their work coach accepts that they are able to meet their work-related requirements while on their course.

For more on who counts as receiving education for UC, and which students may be eligible for UC, see our factsheet Universal credit and students

Depending on the length of the course and the number of hours per week, students may be eligible for council tax exemption. For non-advanced / further education courses, this may also depend on the age of the student. You can read the details on council tax exemption for students in part 4, chapter 19 of CPAG’s Benefits for Students in Scotland Handbook, which is free to access.

Claiming benefits when a course ends

When you finish a full-time course you no longer count as a student for benefit purposes, and can therefore claim benefits in the same way as anyone else. The date you can claim from is usually the day after the last day of the final academic year of your course.

You must usually claim universal credit (UC) rather than legacy benefits (such as income support and housing benefit), but if you already get legacy benefits you can stay on them.

Claim online at gov.uk/apply-universal-credit. An ‘assessment period’ of one month follows the date of claim, and payment is usually made a week after the assessment period ends. This means it is usually at least five weeks from claiming UC to being paid. If you are in hardship while waiting for your first UC payment you can ask for a short-term advance. However, note that this is repayable from your UC award (over 24 months). Alternatively, you could try claiming a Scottish welfare fund crisis grant.

Student income is not counted as income in the ‘assessment period’ in which your course ends. This means students eligible for UC (eg, student parents) whose UC stopped during term time because their income was too high can reclaim in the last month of their course, when student income is ignored.

Note: student parents with a child/ren under 16, who are making a new claim for UC at the end of a course, should also apply for Scottish child payment from Social Security Scotland. See Scottish child payment for more information, and apply at mygov.scot/scottish-child-payment/how-to-apply

Example

Jackie’s course ends on 9 June 2023. She is a parent with a six-year-old child, but did not get UC during the course because her student income was too high. She claims UC on Monday 15 May. She is eligible for UC because she is a parent. Her first assessment period runs from 15 May to 14 June. Her student loan is not taken into account as income in this assessment period, as this is the assessment period in which her course ends. Her first payment is made on 21 June, and she receives her maximum UC amount on this date as no student income is counted.

Note: if you live in ‘specified’ supported or temporary (eg, homeless) accommodation you must claim HB for help with rent. You may need to claim this together with UC for your living costs.

Now that you are no longer a full-time student you may be liable for council tax, but if you have a low income you should claim council tax reduction from the local authority to reduce your bill.

Check what benefits a student can claim

Advisers can phone CPAG in Scotland's advice line for advisers and frontline staff if you want to check what benefits a student can claim, or if you have any other questions about social security benefits. 

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eBulletin
Published on
1 March 2023
Relevant to
Scotland,

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