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New rules tighten exclusion of Disabled students from Universal Credit

09 November 2021

The Government has issued new regulations, removing an exemption ‘work around’ allowing Disabled students to claim Universal Credit (UC).

At present, if a Disabled student receiving DLA or PIP is found to have a ‘limited capability for work’ they can claim UC.

However, the new rules that come into force from 15 December 2021 and provide that someone entitled to DLA or PIP will allow entitlement to UC only if they are determined as having limited capability for work before they start receiving full time education.

Background:

Disabled students who receive DLA or PIP can receive both ESA and Housing Benefit.

Receipt of both benefits means that disabled students can top-up their student finance with ESA to pay for their extra disability related costs and attend colleges and universities away from their home.

However, when UC was created it placed Disabled students in a Catch 22 situation.

Unlike ESA, Disabled students who received DLA or PIP were no longer to be ‘treated as having a limited capability for work’.

Instead, for UC such students would need to have been determined to have a limited capability for work following a work capability assessment before they were eligible for the new benefit.

But despite supplying medical evidence, the UC section would not then arrange for a work capability assessment to determine their limited capability for work - Catch 22.

The only ‘work around’ for this has been 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. If a LCW decision is made UC entitlement is possible.

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

But within a matter of days, on 5 August 2020 new regulations were issued which changed the law so that other Disabled students who would again in future make a claim for UC would not be invited to a work capability assessment (WCA).

As a result, their limited capability for work could not be established.

In June 2021 Flinn Kays, a Disabled psychology student who receives the enhanced rate of both the mobility and daily living components of PIP, was granted permission to apply for judicial review of the 2020 Regulations.

He calculates that he may be entitled to around £900 a month in UC. But due to the 2020 regulations, his UC claim was refused and he was not invited to a work capability assessment (WCA).

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

“The new regulations are a cynical manoeuvre deliberately aimed at excluding Disabled students from UC.

Many disabled students will be unaware of the need to establish their limited capability for work before their course starts.

If they do not do so, they will be excluded from UC for the whole of their course duration which is often 3 years.

In addition, those who acquire a disability or develop a serious health condition only after they begin their studies will also be excluded.

However, it will still be useful for Disabled students to claim contributory NSESA to get national insurance credits for limited capability for work.

While the new rules mean that once so assessed a UC claim can’t be made for any current course they are on, it could then  be made in a gap between courses / before a subsequent course begins.

Given the new regulations, Disabled students should make a NSESA claim before they come into force from 15 December 2021.

But hopefully the judicial review action being taken by Finn Kays will be successful so that the effect of these new regulations will be quashed.”

See also our related news story 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.