Universal credit and disabled students – an update

Introduction

In December 2021, new regulations were introduced which further narrowed the options for disabled students’ entitlement to UC. In addition, the judgment of a High Court decision on the subject heard in late 2021 was handed down at the end of January 2022. This article sets out where we are now for disabled students hoping to claim UC.

A little bit of history

Before UC, means-tested benefits support for disabled students was through income-related employment and support allowance (ESA) and housing benefit (HB). The rules for these benefits allowed those who got a disability benefit (personal independence payment, disability living allowance, etc) at any rate to qualify for ESA/HB while studying full time, with some additional routes to HB for students with a disability.

When UC was introduced, entitlement for disabled students was only possible if someone had a disability benefit and also had limited capability for work (LCW).1 This was a narrowing of eligibility, and inevitably fewer people met both these criteria than met the previous ESA/HB criteria.

It quickly became apparent that being assessed for LCW for such students was problematic, with the DWP for the most part not allowing UC claims for disabled students to even get off the ground without the student already having LCW. This was successfully challenged in a judicial review case brought by Leigh Day.2 However, immediately following this, the DWP changed the regulations (in August 2020) to specify that someone must have LCW before s/he starts studying, where s/he starts education during her/his UC claim; or must have LCW before claiming UC, where s/he is already in education when s/he claims UC (as well as being entitled to a disability benefit).3

Latest rule changes

Further amendment regulations came into force on 15 December 2021.4 They amend regulation 14(1)(b) of the Universal Credit Regulations 2013, by restricting entitlement to UC, regarding claims made on or after that date, to those students with a disability who have been found to have LCW for UC or ESA (or have been treated as having LCW) before they start ‘receiving education’. They must also, as before, get a disability benefit.

These new rules have been brought in to promote the ‘policy intent’, which is ‘that an existing UC claimant who is entitled to a qualifying disability benefit such as PIP and who has already been determined to have LCW can retain entitlement to UC if they subsequently start a course of education’, and to ‘hopefully give such claimants who are already within the benefits system better future prospects of work, or better paid work, and help to reduce, or end, reliance upon UC support’.5

So, the emphasis is on people who have already been found to have LCW (and have been awarded UC) before starting studying. This creates a particular difficulty for young people who are moving from being supported via their parents’ benefits to claiming in their own right.

High Court decision January 2022

In R (Kays) v Secretary of State for Work and Pensions [2022] EWHC 167 (Admin) (28 January 2022), the claimants argued that the amendments made in August 2020 (ie, that someone must have LCW before s/he starts studying, where s/he starts education during her/his UC claim, or must have LCW before claiming UC, where s/he is already in education when s/he claims UC) were unlawful.6 Four arguments were put forward as to why the change was unlawful. All four arguments were rejected and the application for judicial review dismissed (see p10 for details).

What to do now?

CPAG produced a briefing on the situation for disabled young learners in December 2021, proposing changes we would like to see to the benefit rules.7 Currently there remain several different routes to UC for disabled students.

1. Claim UC well before course starts

Providing UC is claimed and a decision on LCW is made before a course starts (ie, while not in education), UC can correctly be awarded during the course. This is exactly the situation the DWP policy intent supports, but it can take a long time to get a LCW decision.

2. Contributory ESA for credits for LCW

Alternatively, claim new-style (contributory) ESA before starting the course. Although someone may not be entitled to this benefit (unless s/he meets the national insurance (NI) contributions), claiming the benefit would still lead her/him to be assessed through a work capability assessment, to see whether s/he has LCW (and if so, s/he would then receive NI credits on this basis). If found to have LCW, s/he could then claim UC if s/he is between courses (but remember that, regarding claims from 15 December 2021, s/he can only qualify for UC if s/he had already been found to have LCW before her/his course started). 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’ (ie, for her/his parents’ child benefit, child tax credit or UC child element), and therefore stops her/his parents claiming benefits for her/him, getting NI credits for LCW does not.

3. 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:8

• a qualifying young person (generally, under 19 and in full-time, non-advanced education); 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’.

If a non-advanced student has no funding for maintenance (such funding is not generally available in England or Wales, but may be available on a discretionary basis in Scotland), 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, 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 of the Universal Credit Regulations 2013.

Note, however, that advisers report that such claims are often summarily closed by the DWP, as soon as the person mentions that s/he is studying, without any further check as to her/his circumstances.9

Conclusion

Government policy for students with disabilities claiming UC is unnecessarily restrictive. In fact, it contradicts the government’s stated policy to support disabled people ‘to live independently and achieve their potential’, by making it harder for them to study full time or even complete non-advanced education.10

The alternative ways to get UC that are outlined above (applying for contributory ESA on a credits-only basis before starting the course or attempting to be treated as not receiving education) are not without difficulty. We know that some young disabled students, and others, have had to leave education because of the barriers to claiming UC while studying. We would welcome information on any such cases from advisers via CPAG’s Early Warning System.11