Disabled student wins right to challenge DWP over universal credit ‘discrimination’

A disabled student has won the right to challenge efforts by ministers to prevent him and thousands of others in his situation from claiming universal credit while they are studying.

Flinn Kays argues that many disabled students should be entitled to claim out-of-work benefits while they are studying because they cannot support themselves with a job to the same extent as non-disabled students.

But Department for Work and Pensions (DWP) regulations prevent disabled students undergoing a work capability assessment (WCA), which means they cannot claim universal credit (UC).

When universal credit was approved by parliament, it was agreed that disabled students who could show they had limited capability for work – and already received attendance allowance (AA), disability living allowance (DLA) or personal independence payment (PIP) – should be exempt from the rule that it cannot be claimed by full-time students.

But despite those regulations, it eventually became clear that DWP staff were rejecting the claims of disabled students after UC began to be introduced in 2013, and were only allowing disabled students who had already been found to have “limited capability for work” to qualify for the exemption.

The policy is believed to have affected thousands of disabled students.

Last year, work and pensions secretary Therese Coffey finally admitted that the policy was unlawful, and two disabled students were allowed to undergo a WCA to establish their limited capability for work after the high court concluded that DWP had misunderstood the relevant law.

But following the ruling, Coffey introduced new regulations which changed the law so that other disabled students receiving AA, DLA or PIP and making a claim for UC would not be referred for a WCA, and so would have their claims rejected.

She made the change to the regulations on 3 August, the first working day after she told the court she would not be defending the judicial review.

Coffey also gave parliament just one day to consider the new regulations before they came into effect, rather than the usual three weeks, and failed to comply with her statutory duty to consult DWP’s advisers, the social security advisory committee.

She blamed the “capacity restraints” caused by the pandemic.

Kays, a first-year psychology student at Bath Spa University, has now been granted permission to seek a judicial review of the new regulations.

He is arguing that Coffey unlawfully failed to consult on the regulations; that they are discriminatory under the European Convention on Human Rights; that they are irrational; and that they breach the government’s public sector equality duty.

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

He believes he should be entitled to about £900 a month in universal credit, but his application was rejected, and he was not asked to attend a WCA.

He said: “Because of my disabilities, I am not able to supplement my income to the same extent as a non-disabled student is.

“I believe it is unlawful and also discriminatory that I am being prevented from claiming universal credit.”

Lucy Cadd, his solicitor, from law firm Leigh Day, 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.”

Disabled Students UK (DSUK), a grassroots organisation led and controlled by disabled students, welcomed permission being granted for the legal action.

Amelia McLoughlan, DSUK’s network director, said disabled students had been concerned about the issue since 2017.

She said: “As Flinn has stated, disabled students are often not able to supplement their income to the same extent as non-disabled students.”

She said DWP’s policy appeared to suggest “an equivalency between disabled students’ capacity to study and their capacity to work”, an “oversimplification” which was “incredibly concerning”.

She said: “The policy does not take into account the complexities of disability, the already difficult and administratively burdensome environment disabled students are subject to within university education (as described by the Arriving at Thriving report), or the significant barriers to employment disabled people face.”

She added: “Rejecting universal credit applications purely based on whether the applicant is in full-time education has a significant financial impact on individuals.

“We know from our members and disabled students we encounter, that many disabled people simply can’t afford to study and many are under significant financial stress.

“Therefore, we would welcome research assessing if this has impacted disabled students’ decision-making when considering applying for university admissions, or if this has resulted in disabled students having worse academic and/or health outcomes due to financial stress.

“This is a timely issue as our latest survey shows 54 per cent of disabled students report experiencing increased stress, anxiety or worry due to financial pressures during the pandemic.

“This only further demonstrates the importance for the secretary of state, and the government at large, to consult with disabled people, including disabled students, on policies that directly affect their lives.

“Policies such as this culminate in regulation that creates unequal opportunities and prevents the government from closing the gap in degree qualification achievement between disabled and non-disabled people, currently at 16.2 percentage points according to the ONS.”

Ken Butler, welfare rights and policy adviser for Disability Rights UK, which has campaigned on the issue for four years, said: “The granting of this new judicial review is great news and hopefully will be as successful as the original.

“Following representations by DR UK, both the Equality and Human Rights Commission and the work and pensions committee of MPs have previously recommended that receipt of PIP or DLA should mean – as for employment and support allowance 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.”

A DWP spokesperson said: “We are unable to comment on an ongoing legal case.

“Students, including those with a disability or health condition, can access support for their higher education courses through various loans and grants funded through the student support system.”

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