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Disabled student granted permission to legally challenge rules excluding him from Universal Credit

16 June 2021

Flinn Kays, a Disabled psychology student, has been granted permission to apply for judicial review of the Universal Credit 2020 Regulations which amend the 2013 regulations significantly and exclude Disabled students like him from entitlement to the Universal Credit (UC).

He currently receives the enhanced rate of both the mobility and daily living components of PIP, but is having to use that money to meet his general living expenses.

However, he calculates that he may be entitled to £899.11 a month UC. But in line with the new regulations, his own UC claim was refused and he was not invited to a work capability assessment (WCA).

 Flinn, aged 18, submits that new regulations that bar the path to Disabled students having a WCA and thus claiming universal credit, are unlawful.

Background:

When UC was originally created it was intended that Disabled students who could show that they had limited capability for work should be exempt from the rule that individuals can’t claim UC whilst in full-time education.

However, it became evident that an internal policy existed which directed DWP staff to reject outright the UC claims of Disabled students.

Last year, following a judicial review challenge by two Disabled students, the Secretary of State for Work and Pensions Theresa Coffey conceded that the policy was unlawful and a judge approved and sealed an Order to that effect on 31 July 2020.

Both students - Sidra Kauser and ‘JL’ - were both granted a WCA.

But within a matter of days of this concession, on 5 August 2020 the SSWP laid regulations which changed the law so that other Disabled students who would in future make a claim for universal credit would not be invited to a WCA.

Therefore their limited capability for work would not be established. Claims for universal credit are currently being refused on that basis.

The Secretary of State did not consult with the Social Security Advisory Committee prior to making the regulations despite an express statutory duty to do so.

Instead, she attempted to rely on “capacity restraints because of the need to respond to the Covid-19 pandemic” and because “the existing provisions are now considered to not provide the legal clarity needed.”

However, the existing provisions were perfectly clear: Disabled students in full-time education with limited capability for work were entitled to UC.

The judicial review:

Flinn is asking the court to quash the 2020 regulations on the grounds that:

  • the Secretary of State unlawfully failed to consult
  • they are discriminatory under Article 14 ECHR
  • they are irrational
  • they breach public sector equality duty under the Equality Act 2010.

Lucy Cadd from Leigh Day solicitors, who are representing Flinn said:

“The Government says that it has always been its policy intention to prevent Disabled students from claiming universal credit.

However, all of the parliamentary debates that occurred in 2011/2012, just prior to the benefit being introduced, clearly indicate that the intention was very much for the position to remain as it was under legacy benefits, which was that Disabled students most certainly could claim means-tested benefits whilst studying.

It is already twice as likely that a non-Disabled student will attain a degree level qualification than a Disabled student – this gap will only increase if Disabled students are not able to supplement their income with UC.”

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

“The granting of this new judicial review is great news and hopefully will be as successful as the original - R (Kauser and JL) v Secretary of State for Work and Pensions .

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 mean - as for ESA and Housing Benefit - that Disabled students be treated as having a limited capacity for work for UC purposes.

Student finance for Disabled students is inadequate as shown by the fact that many would qualify under the UC means test if they were only eligible. In addition, student finance is often unavailable during the whole summer vacation.   

That new regulations blocking UC entitlement were so swiftly introduced last year casts doubt on the Government’s commitment to ensure Disabled people’s access to education. In addition, in turn it casts doubt as to the Government’s commitment to increase the number of Disabled people in employment.”

For more information see Disabled student given permission to legally challenge new regulations preventing him claiming universal credit available from leighday.co.uk.