Disabled Students and claims for Universal Credit — Updated again
A how-to guide on how to claim Universal Credit if you’re a disabled student
This article was originally published in the Autumn 2018 issue of Adviser magazine and was correct at the date of publishing. The article was updated on the 22 March 2024.
The problem
Claimants who are ‘receiving education’ are generally unable to qualify for UC, although there are exceptions. An exception currently applies to students who receive a qualifying disability benefit and have been found to have limited capability for work (LCW) or limited capability for work and work-related activity (LCWRA). These claimants are commonly referred to as disabled students.
Disabled students can have problems making a successful claim for universal credit (UC). Under employment support allowance (ESA) a disabled student in receipt of personal independence payment (PIP) or disability living allowance (DLA) could continue to be entitled to income related ESA and treated as incapable of work on the production of a medical certificate. Under universal credit (UC) a disabled person who is defined as ‘receiving education’ under regulation 12 UC regulations isn’t entitled to UC as a disabled student unless they are in receipt of PIP or DLA and have been assessed as having limited capability for work (LCW). Students will not be referred for a work capability assessment (WCA) if they are not entitled to UC. This can have the effect of making it impossible for a disabled student to claim UC.
Solutions
In order to get around the above, affected students have had to resort to the following:
- Making a ‘credits only claim’ for contributory/new style ESA. A ‘credits only claim’ will enable the student to have a WCA which (if satisfied) will allow them to claim UC. The difficulty with this is the inevitable delay in making a successful UC claim whilst the credits claim is being assessed
- An alternative for claims made before 5 August 2020 was for the student to make a claim for UC and ask for the decision on the claim to be deferred until after a WCA is completed. The DWP should defer making a decision on a claim if entitlement is contingent upon another event (in this case satisfaction of the WCA). This was established in Commissioners Decision CG/1479/1999.
- A further alternative is for students who are on an non-advanced course, not receiving a student maintenance grant or loan and who are not defined under regulation 5 UC regulations as a qualifying young person to ensure that their course is compatible with their work related requirements for UC. In these circumstances the student should not be defined as receiving education under regulation 12 UC regulations.
Legal challenges and Government’s response
On 6 October 2020 in R(Kauser and JL) v SSWP the High Court declared the Secretary of State for Work and Pensions acted unlawfully in failing to determine whether two disabled students had limited capability for work (LCW) before deciding entitlement to UC. This is consistent with the decision in CG/1479/1999. However, the Secretary of State for Work and Pensions had already amended the UC regulation on 5 August, 2020. These amendments to regulation 14(b) UC regulations unequivocally stated that a disabled student would only be entitled to UC if they already had a LCW determination on the date of their claim. This meant that for claims after 5 August 2020, the only solution for disabled students who were deemed to be ‘receiving education’ was to make a claim for contributory new-style ESA, and wait for a LCW determination prior to making their UC claim (but see the below section for the rules that now apply from 15 December 2021).
If a disabled student was refused UC prior to 5 August 2020, before a determination on LCW had been made, a late mandatory reconsideration/appeal could be lodged citing commissioners decision CG/1479/1999 and the High Court declaration in R(Kauser and JL) v SSWP. Although most of these cases will now be outside of the 13 month appeal time limit a claimant could ask for an out of time revision of a decision on the grounds of official error citing the decision in CG/1479/1999.
A further legal challenge was lodged challenging the regulations as amended in 2020. The High Court dismissed the application for judicial review on the 28 January 2022. This case was appealed to the Court of Appeal but the appeal was dismissed on the 2 December 2022.
Important changes from 15 December 2021
Following the amendments to the UC rules after 5 August 2020 advisers had been using the ‘credits only’ workaround to help disabled students to make UC claims. However, in response to this, the government issued new regulations that make it even harder for disabled students to qualify for UC.
From the 15 December 2021, the exception to ‘receiving education’ will only apply to students who both:
- Receive a qualifying disability benefit; and
- have been determined to have LCW or LCWRA before they started receiving education
This is more restrictive than the previous exception, which required disabled students whose course has already started to have had a determination of LCW or LCWRA before the date of their UC claim. Claimants now have to have a determination of LCW/WRA before they start their course. This change significantly limits the effectiveness of the previous ‘workaround’ of making a ‘credits-only claim’ for new-style ESA. It means that,from 15 December 2021, this workaround will not help disabled students whose course has already started.
There may still be situations where a ‘credits only claim’ will be helpful, for example, if a person starts a non-advanced or part-time course after their 19th birthday a ‘credits only claim’ might be considered as it would be a means of establishing that they have LCW and this will reduce their work related requirements. This makes it more likely that their course will not be deemed incompatible with work-related requirements. Another situation where a person might put in a ‘credits only claim’ is if they are not entitled to UC, but might be entitled as a student. In this situation, if they are considering undertaking a course of education, they might want to put in a ‘credits only’ claim to obtain LCW prior to starting a course and claiming UC. Citizens Advice staff can contact the Expert Advice Team for further advice on these types of cases.
Following the amendments from 15 December 2021, students who are found to have LCW before they start their course should still be able to claim UC if they meet the other conditions for entitlement. It should also still be possible for disabled students in non-advanced education to argue they’re not ‘receiving education’ at all, and therefore don’t need to rely on the exception providing the education does not interfere with any work-related requirements.
Further legal challenges
It is possible that the new amended regulations which apply from 15 December 2021 will also be subject to legal challenge. If this happens disabled students who are deemed to be receiving education should continue to put in claims for UC and appeal any refusal in case the test case is successful. However, given the lack of success in challenging the amendments made on 5 August 2020, it seems increasingly unlikely that the appeal courts will find the further new amendments unlawful.
Rachel Ingleby works in the Welfare Benefits Expert Advice Team at Citizens Advice.
