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New regulations issued excluding disabled students from Universal Credit entitlement

05 August 2020

New regulations have been issued to “restore the policy intent” that "a limited capability for work determination, must be met by a disabled student  on or before the date of claim for universal credit”.

The new regulations - The Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2020 (SI.No.827/2020) come into effect from today.

The regulations relate to the exception to the Universal Credit basic condition 'not to be receiving [higher] education' for those in receipt of a disability benefit.

They amend the exception to the requirement to meet the basic condition of not to be receiving education - in regulation 14 of the Universal Credit Regulations 2013 - to specify that a person entitled to AA, DLA or PIP will only be entitled to universal credit if they already have a determination of limited capability for work (LCW):

  • on the date of claim
  • where they have already started undertaking a course of education, studies or training before making a claim for universal credit; or
  • on the date that they start undertaking the course in any other case.

The explanatory memorandum to the regulations says that -

“The amendment restores the policy intent which was arguably not supported under the existing framing of regulation 14(b) of the Universal Credit Regulations.

It makes clear that it is a requirement of this regulation that a person must already have been determined to have LCW.

The policy enables disabled people already assessed as LCW to enter or remain in education and better their prospects of obtaining work.

The purpose is not to enable a person to be referred for a work capability assessment in order to determine whether they have LCW, so as to then satisfy the exception.”

DR UK’s Welfare Rights and Policy Adviser Ken Butler said:

"The new regulations are a really bad news for disabled students.

The timing of their publication could not be worse – a few weeks before many disabled students are set to embark or continue on new higher education courses.

Unfortunately they put a legal stamp on what has been the actual operational practice of the DWP that places them in a Catch 22 position.

That is, to reject a Universal Credit claim made by a full time disabled student (not previously in receipt of ESA) on the grounds that they have not been determined to have a LCW.

But then for the Universal Credit section to refuse to arrange a work capability assessment to determine if they have a LCW.

Even though they may clearly meet the Universal Credit means test if found to have a LCW.

The only way around this is for the disabled student to make a claim for contribution based New Style ESA (NSESA) - for which they will not meet the national insurance contributions entitlement conditions!

Despite this, following their NSESA claim, a work capability assessment will eventually be held. Only then If a LCW decision is made can any means tested Universal Credit entitlement be awarded.

This torturous route is absurd. Worse, it undoubtedly has the effect of deterring Universal Credit claims by some disabled students. Some will  not know to claim NSESA ‘workaround’ if refused and some may even not pursue their higher education course.

DR UK has been lobbying against the denial of disabled students access to Universal Credit since 2017.

Under Universal Credit, disabled students are not given the opportunity to establish their LCW through a work capability assessment.

This is a significant change from the system under ESA where disabled people in receipt of DLA or PIP were automatically determined as having LCW.

Following our representations both the equal rights body, the UK Independent Mechanism, and the Work and Pensions Committee of MPs have recommended that receipt of PIP or DLA should be accepted as evidence of a LCW allowing disabled students to receive Universal Credit.

These new regulations were not subject to a referral to the Social Security Advisory Committee or any equality impact assessment before being issued.

They will cast doubt on the Government’s commitment to ensure disabled people’s access to education. In addition, they will in turn cast doubt as to the Government’s commitment to increase the number of disabled people in employment.

However, DR UK will not give up on this issue and will lobby for the rescinding of these new regulations and for direct entitlement to Universal Credit for disabled students.”

The Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2020 are available from legislation.gov.uk.

See also the related news items available from disabilityrightsuk.org: