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Appeal granted against court judgment excluding disabled students from universal credit

18 August 2022

In January 2022, the High Court dismissed a judicial review brought against rules restricting universal credit (UC) to disabled students.

Flinn Kays, a disabled 19 year-old student, argued that the rules that existed prior to 15 December 2021 were unlawful. These rules had prevented him from receiving UC until he first underwent a work capability assessment and established a limited capability for work.

However, permission to appeal the High Court judgment has now been granted and the case will be heard by the Court of Appeal.

In 2020, following a judicial review challenge by two Disabled students, the Secretary of State for Work and Pensions Theresa Coffey conceded that a policy internal policy which directed DWP staff to reject outright the UC claims of disabled students was unlawful.

But within a matter of days of this concession, on she laid regulations which changed the law so that other disabled students who would in future make a claim for UC would not be invited to a work capability assessment.

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

Flinn had asked the High Court to quash the 2020 regulations on these four grounds That:

  • the Secretary of State unlawfully failed to consult
  • they were discriminatory under Article 14 of the European Convention on Human Rights
  • they were irrational
  • they breached public sector equality duty under the Equality Act 2010.

Permission to appeal the High Court judgment has now been given on Flinn successfully arguing that the above four grounds had not been given proper legal consideration.  

Welcoming the granting of an appeal, DR UK Welfare Rights and Policy Adviser Ken Butler said: “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.

“UC does not duplicate student finance as the DWP seeks to maintain. Student maintenance income is already counted as deductible income under UC regulations. But other types of awards that cover extra disability-related costs are rightly excluded as deductible income.

“That student finance for disabled students is inadequate is 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.”   

The High Court was looking at the rules that applied to Disabled students prior to 15 December 2021. It did not look in detail at the new more restrictive rules introduced on that date.

These rules now further restrict UC claims by those ‘receiving education’ to cases where a Disabled student had established a limited capability for work before they started education.

However, should an appeal against the High Court’s judgment be successful these more restrictive rules will be nullified.

A factsheet about UC rules for Disabled students is available from contact.org.uk.