Court of Appeal dismisses challenge to rules excluding disabled students from universal credit

Fri,16 December 2022
News Benefits Education
The Court of Appeal has dismissed a challenge to the rejection of a claim for judicial review by Flinn Kays following the refusal of his application for universal credit (UC).

Flinn is a student who has been studying for a University degree at since September 2020. He receives the enhanced rate of both the mobility and daily living components of personal independence payment (PIP). However, he is now having to use that money to meet his general living expenses.

Flinn calculated that he may be entitled to around £900 a month in UC. But in line with UC rules, his claim for UC was refused and he was not invited to attend a work capability assessment.

He claimed UC in October 2020 after starting his degree course, but this was refused on the grounds that he was in full-time education and so did not meet the basic requirement for entitlement to universal credit of “not receiving education”.

An amendment to the 2013 UC regulations had the effect that that someone receiving full-time education had to have obtained a determination that they had a limited capability for work before making a claim for UC.

While Flinn made a judicial review claim that this was unlawful, this was dismissed in the High Court by Mr Justice Swift in January 2022.

Flinn then appealed to the Court of Appeal on the following grounds:

  • that the Secretary of State acted unlawfully due to a failure to consult
  • that the provisions are irrational and discriminatory
  • that they breach the public sector equality duty under the Equality Act 2010.

However, the Court of Appeal has dismissed each of these grounds.

Following Flinn’s initial legal challenge, the Government subsequently made a made another, more restrictive amendment to the UC regulations which applies from  December 2021.

The effect of this is that now most full-time disabled students can only receive UC if they are in receipt of personal independence payment or disability living allowance and have been assessed or treated as having a limited capability for work before starting their courses.

If not, they remain ineligible for UC throughout the whole time of their course, often three years or more.

DR UK’s Welfare Rights and Policy Adviser Ken Butler said: “The Court of Appeal’s judgment is extremely disappointing and will impact on disabled people’s ability to enter or remain in higher education.

“Had Flinn’s appeal been upheld, it would have cancelled the restrictive UC rules that were introduced from December 2021.

“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 Court of Appeal’s judgment in Kays, R (On the Application Of) v Secretary of State for Work and Pensions [2022] EWCA Civ 1593 is available from

A factsheet about the UC rules for Disabled students is available from