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High Court finds DWP unlawfully refused Universal Credit to disabled students for seven years - only for Secretary of State to change the law to bar them again

12 November 2020

A newly published High Court judgment has shown that, between 2013 and 2020, thousands of disabled students were unlawfully barred from claiming Universal Credit for essential living costs benefit.

This is because the Court found that the Government had adopted an unlawful policy of rejecting their claims without conducting work capability assessments.

One of those two students who took the judicial review action was Sidra Kauser, a visually impaired masters student in York. The other was JL (a disabled student whose identity was anonymised by the Court).

Ms Kauser and JL both receive PIP but were refused Universal Credit which made it much harder for them to afford to continue their studies.

The Daily Mirror wrote of Ms Kauser “she was left paying for food, clothes and travel from the separate disability benefit PIP, and forced to borrow money from family… She said: “A lot of my friends have part-time jobs and that’s not something that would be feasible at all for me. “I pay for taxis and transport, assisted tech and it all adds up.”’

The grounds of Ms Kauser’s and JL’s judicial review claim was that, contrary to the DWP’s approach, the law required the it to conduct work capability assessments to determine whether they had limited capability for work – in which case they would be entitled to Universal Credit.

On 31 July 2020, the Secretary of State for Work and Pensions, Thérèse Coffey, who had previously denied acting unlawfully, told the Court she would not be defending this claim. She subsequently admitted breaching regulation 14(b) of the Universal Credit Regulations 2013 and so acting unlawfully, by:

  • failing to determine whether the claimants had limited capability for work; and
  • failing to conduct a work capability assessment before deciding the claimants’ entitlement to Universal Credit.

The High Court subsequently held, with the agreement of both parties, that the Secretary of State had so acted unlawfully and quashed the Government’s decisions which had refused both claimants’ Universal Credit claims.

The judgment - R (Kauser and JL) v Secretary of State for Work and Pensions CO/987/2020 - is available from gcnchambers.co.uk.

However, on the working day immediately after she conceded the judicial review claim – the Secretary of State amended the 2013 Universal Credit Regulations.

The amendment provides that for disabled students making Universal Credit claims on or after 5 August 2020, Decision Makers are no longer required to refer claimants for a WCA where they are in receipt of PIP (or DLA or AA) and have not previously been determined to have limited capability for work.

The Explanatory Memorandum published alongside the amending Regulations makes no mention of the judicial review claim, and tells Parliament the amendments were being made merely to “clarify” the legislation, rather than to make any substantive change to the law.

So the Secretary of State declared to the High Court that she had got the 2013 law wrong, while telling Parliament that the 2013 law was merely unclear.

In addition, the Secretary of State did not consult the Social Security Advisory Committee, or any other external body, before making the amending Regulations.

Garden Court North Chambers who represented Ms Kauser and JL said:

“If you are a disabled student affected by either the old or new Regulations, we recommend that you contact a welfare rights adviser.

For students incorrectly refused Universal Credit  in the past (before 5 August 2020), it may be possible to ask the Secretary of State to revise her decision; indeed, hopefully the Secretary of State will urgently review past incorrect decisions on her own initiative.

For disabled students who need Universal Credit in future, it may still be possible to be referred for a work capability assessment by claiming contribution-based ESA, or by asking to be credited with national insurance contributions. Those routes may lead claimants to be referred for a WCA, resulting in a determination that they have limited capability for work.”

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

“In over 30 years as a Welfare Rights Officer I can’t ever recall before a DWP Minister straightforwardly admitting they acted unlawfully let alone over a seven year period.

The judicial review victory is significant and will hopefully will lead to very many disabled students being awarded the Universal Credit they were wrongly denied.

Given it acted unlawfully, the DWP should rightly carry out a review exercise to ensure that all such disabled students are identified. It should not be left to individual students to seek challenge refused benefit decisions themselves.

Unfortunately, the High Court victory is a bitter sweet one as the Secretary of State immediately introduced new regulations to more effectively bar disabled students from Universal Credit. 

Let’s hope that the effect of these will also be cancelled out by a future legal challenge.”

He added:

“Following representations by DR UK, both the EHRC, and the Work and Pensions Committee of MPs have previously recommended that receipt of PIP or DLA should be mean - as for ESA and Housing Benefit - that disabled students should be treated as having a limited capacity for work for Universal Credit purposes.  

Rather than give a statutory basis to what was for seven years illegal, DR UK will still lobby for a legal change to enable disabled students receiving PIP to be treated as having a limited capability for work.”

For more information see New regulations issued excluding disabled students from Universal Credit entitlement  available from disabilityrightsuk.org