Universal credit: motion to annul regulations impacting disabled student claimants

Eren Waitzman

On 13 December 2021, the House of Lords is scheduled to debate a motion from Lord Storey (Liberal Democrat) to annul the Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2021 (the 2021 regulations). If the motion is agreed, the regulations would be annulled.

Lord Storey’s motion calls for the regulations to be annulled for two reasons:

firstly, because the regulations would “remove vital support” for disabled young people; and
secondly, because the Government has “not sufficiently assessed” the impact that the regulations would have.

On 4 November 2021, the Government laid the regulations before both Houses under the made negative procedure. This means that the regulations do not require parliamentary approval before becoming law. They are therefore due to come into force on 15 December 2021. However, either House can introduce a motion to annul the regulations within the objection period. In the case of these regulations, the objection period ends on 13 December 2021.

What are the current rules for disabled students claiming universal credit?

People who are receiving education are not generally eligible for universal credit (UC), but there are some exceptions to this. One exception relates to disabled students. The Universal Credit Regulations 2013 stated that a person entitled to attendance allowance, disability living allowance or personal independence payment who had limited capability to work could be eligible for universal credit even if they were receiving education. The Department for Work and Pensions (DWP) has explained that LCW is when a claimant does not have to look for work, but will need to “take steps” to prepare for it.

The 2013 regulations were amended in 2020. On 4 August 2020, the Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2020 (the 2020 regulations) were laid before Parliament. They came into force the next day. The 2020 regulations provided that for a disabled student to be eligible for universal credit (UC), they must:

have a determination of limited capability for work (LCW) before the date of their UC claim if in education at that point, or
before going into education, in any other case.

The DWP said the 2020 amendment “restore[d] the policy intent which was arguably not supported under the existing framing” of the 2013 regulations. It sought to make “clear that it is a requirement of this regulation that a person must already have been determined to have LCW”.

The department now contends that the 2020 regulations have left a “workaround”. It said that disabled students could claim new-style Employment and Support Allowance (NS ESA) and be referred for a work capability assessment in the expectation that they might be determined to have LCW. If they are determined to have LCW, they could then make a claim to UC as they would meet the eligibility requirements.

Judicial reviews

2020

In 2020, two disabled students were granted permission to apply for judicial review after claiming that the DWP had “adopted an unlawful policy” by breaching the 2013 regulations. They claimed that before rejecting their claims for UC, the DWP had failed to determine whether the students had LCW and conduct a work capability assessment before deciding the claimants’ entitlement to UC. On 31 July 2020, the Secretary of State for Work and Pensions, Thérèse Coffey, told the High Court that she would not be defending the claim. The following working day, the Secretary of State introduced the 2020 regulations, which amended the 2013 regulations.

In October 2020, the High Court held agreement with the parties and quashed the Government’s decision that the two claimants had no entitlement to UC.

2021

In June 2021, another disabled student was granted permission to apply for judicial review of the 2020 regulations. The student’s representatives, Leigh Day Solicitors, contended that Thérèse Coffey “unlawfully failed” to consult Parliament or the Social Security Advisory Committee prior to making the regulations. The 2020 regulations were subject to the made negative procedure but came into effect the day after they were laid. There is a convention that, where possible, a negative instrument should be laid at least 21 days before it comes into effect. The solicitors also argued that the regulations: were discriminatory under article 14 of the European Convention on Human Rights; were “irrational”; and “breach[ed] public sector equality duty” under the Equality Act 2010.

Responding, a spokesperson for the Department for Work and Pensions stated that the Government was “unable to comment on an ongoing legal case”. In addition, the spokesperson said that students, including those with a disability or health condition, could “access support for their higher education courses through various loans and grants funded through the student support system”.

What would the 2021 regulations do?

The 2021 regulations’ explanatory memorandum stated that following a private review by the Secretary of State for Work and Pensions, Thérèse Coffey, the regulations would close off the “workaround” by providing that a person entitled to attendance allowance, disability living allowance, child disability payment or personal independence payment (PIP) will be entitled to UC only if they are determined to have LCW before the person starts undertaking a course of education. The explanatory memorandum further detailed that:

[…] a person who has claimed NS ESA and been determined to have LCW will only meet this exception and be entitled to UC if they were determined to have LCW before they started undertaking a course of education, in the same way that a person on UC will only meet the exception if they were determined to have LCW before starting their course.

The DWP noted that the “workaround” is being closed off because it “is contrary to the longstanding policy intent”, which is:

That an existing UC claimant who is entitled to a qualifying disability benefit such as PIP and who has already been determined to have LCW can retain entitlement to UC if they subsequently start a course of education.

The department said that it hoped that this would give such claimants who were already within the benefits system “better future prospects of work, or better paid work, and help to reduce, or end, reliance upon UC support”.

What parliamentary scrutiny has there been to date?

The House of Lords Secondary Legislation Scrutiny Committee noted that the regulations were an “instrument of interest” in a report published on 25 November 2021. It said that this was due to the complexity of the concept. The committee also noted that the concept had been “poorly explained” by the DWP in a previous version of the regulations’ explanatory memorandum, which has since been replaced at the request of the committee.

In December 2021, the Government was asked in a written question why an impact assessment had not been completed for the 2021 regulations. Responding, the Parliamentary Under-Secretary of State at the DWP, David Rutley, stated that an impact assessment had not been prepared because the regulations “restore[d] the original policy intent of UC”.

What reaction has there been to the regulations?

The regulations have been met with criticism from disability rights charities and campaigners.

Ken Butler, a welfare rights and policy adviser at the charity Disability Rights UK, has argued that the regulations are a “cynical manoeuvre deliberately aimed at excluding disabled students from UC”. In an interview with the Express newspaper in November 2021, Mr Butler warned that “many” disabled students would be “unaware” of the need to establish their limited capacity for work before their education course starts. He stated that this could result in disabled students being excluded from UC for the duration of their course. In addition, he warned that students who acquired a disability or developed a serious health condition after beginning their studies “will also be excluded”.

The Child Poverty Action Group (CPAG) has also criticised the regulations. In a briefing published on its website in December 2021, CPAG warned that the regulations could stop disabled people from continuing to university after finishing school. The charity stated that this is because it takes, on average, four months for someone to get a work capability decision after declaring a health condition to the DWP, “which means that a school leaver is very unlikely to get LCW status before starting university”. CPAG also noted that even though university students can access student loans, it would not put disabled students “on the same footing as their non-disabled peers”, as they would be “less able to supplement their income through paid work alongside their studies”.