Angela Toal describes a problem and some possible solutions regarding disabled students attempting to claim universal credit.
To get universal credit (UC) a disabled student must satisfy two provisions: firstly, s/he must be entitled to disability living allowance (DLA) or personal independence payment (PIP) (or certain other disability benefits), and secondly, have limited capability for work – ie, satisfy the limited capability for work test in the work capability assessment (WCA).1
These requirements are more onerous than the requirements for claiming benefits that UC is replacing. Income-related employment and support allowance (ESA) requires that claimants get DLA/PIP, and treats them (in most cases) as having limited capability for work on submission of a medical certificate. There is no equivalent provision in UC. Housing benefit (HB) regulations say that you must satisfy one of a variety of requirements, such as being eligible for a disability premium or severe disability premium.
The additional requirement in UC to have satisfied the WCA will inevitably mean that fewer students with disabilities can qualify for means-tested benefits to help with their living and housing costs, and that they will be forced to rely only on student loans and grants.
So that’s the bad news. Here's the even worse news: it has emerged that students with disabilities, in receipt of DLA or PIP, but not (yet) in receipt of ESA or UC, are having their claims for UC refused outright because they do not at the outset have limited capability for work. Therefore, it seems they have no prospect of a successful claim for UC.
Note that in a few cases a claimant can be treated as having limited capability for work under Schedule 8 (or limited capability for work and limited capability for work-related activity under Schedule 9) to the Universal Credit Regulations 2013 – eg, if s/he is in hospital, terminally ill or receiving certain treatments for cancer. If any of these circumstances applies, then the UC claim should not be refused.
What can be done?
Apply for contributory ESA
One way to have limited capability for work assessed is via an ESA ‘credits only’ claim. A claim can be made for ‘new-style’ contributory ESA even if national insurance contribution conditions are not met.2">www.gov.uk/guidance/new-style-employment-and-support-allowance The claimant can have her/his limited capability for work assessed (usually through a WCA), and if s/he is assessed as having limited capability for work, s/he can then go on to claim UC (or ask for an earlier claim which has been stockpiled to be decided – see below).
Claiming ‘new-style’ contributory ESA continues to be problematic, with claimants variously being told that ‘it does not exist’ or that they must claim UC. Use the telephone numbers on gov.uk and ask for a claim form to be sent out.3">www.gov.uk/guidance/new-style-employment-and-support-allowance
A decision on a contributory ESA claim that you have limited capability for work may allow you to be credited with class 1 national insurance contributions, and continues to subsist until there is a decision/assessment that you no longer have limited capability for work.
In fact, this is a process that some disabled students have gone through for a number of years in order to qualify for HB, as one of the ways of qualifying is that you have had incapacity for work or limited capability for work for the past 196 days, and continue to do so.4 This has always required a claim for incapacity benefit or ESA to establish the incapacity for work or limited capability for work, even where the student will not have any actual entitlement to the benefit claimed.
Once assessed as having limited capability for work on the contributory ESA claim, apply for UC as soon as possible. Being assessed as having limited capability for work for ESA allows you to have a limited capability for work for a UC claim.5
Ask for UC claim not to be decided
Currently, the DWP is refusing UC claims where the student does not at the outset have limited capability for work. Arguably this is wrong, and the DWP should stockpile such claims until the student has had her/his limited capability for work assessed. Assessment of limited capability for work is the DWP’s responsibility, so it should refer the claimant for a WCA.
Arguing that the claim should not be adjudicated on is based on an argument that was made in an article in a Welfare Rights Bulletin from 2000.6 In CG/1479/1999, it was held that itwas unlawful to adjudicate on a claim to make a nil award in a case where entitlement depended on something else (in this case, a claim for income support that depended on the outcome of a claim for DLA). This was because it was in breach of section 21(1) of the Social Security Administration Act 1992. This part of the Act has now been repealed, but arguably section 8 of the Social Security Act 1998 contains a similar duty.
Where UC claims are not stockpiled by the DWP, the decision can be challenged arguing that following CG/1479/1999, the decision maker should not have made the decision refusing benefit, as s/he did not have all the necessary information – ie, at the point of claim it was not known whether or not the claimant had limited capability for work. Basically the argument to be made is that there was a requirement to stockpile the decision.
Date of claim
A student might start her/his course in September and claim UC or contributory ESA, but until it is decided that s/he has limited capability for work, UC cannot begin. With assessment delays and UC administrative problems, this could be many months into her/his course, during which time the student will not get social security help with her/his living or housing costs. There is no provision for being treated as having limited capability for work in UC, as there is in ESA, and no obvious solution to this problem.
Students who wish to qualify for UC on the basis of getting DLA or PIP and having limited capability for work are advised to claim contributory ESA, and also claim UC, but ask for the UC decision not to be decided until they have had a determination on their limited capability for work.
Note that MPs have written to the Employment Minister Damian Hinds to ask for the rule to be relaxed to make it easier for disabled students to claim UC.6">www.disabilityrightsuk.org/news/2017/august/mps-urge-rule-change-enable-... In the meantime, students with disabilities are advised to use the above approaches to get an award of UC in place.
Please be aware that welfare rights law and guidance change frequently. Older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.
- 1. Reg 14(b) Universal Credit Regulations 2013, SI No.376
- 2. 3. 4. Reg 56(2)(e) and (ea) Housing Benefit Regulations 2006, SI No.213
- 5. Reg 40(1)(a)(ii) Universal Credit Regulations 2013, SI No.376 6 For any advisers with a library of Welfare Rights Bulletins dating back this far, see issue 155/April 2000, ‘Backdating income support – problems old and new’.