Student with sight loss wins High Court case on universal credit
A judgment in the High Court demonstrated that between 2013 and 2020, thousands of disabled students were unlawfully barred from claiming benefits despite being entitled to universal credit for essential living costs.
According to the High Court, the Secretary of State, as decision-maker for the Government, had misunderstood the law on how to assess these claims and adopted an unlawful policy of rejecting them without conducting Work Capability Assessments (WCA). A WCA is a medical assessment used by the Department for Work and Pensions to decide whether a claimant has limited capability for work and can be entitled to support.
One of those students was Sidra Kauser, a master’s student with sight loss in York, who was initially supported by the RNIB Legal Rights Team. Sidra applied for universal credit at the start of her master’s course last year, following a deterioration in her health. However, the DWP refused to undertake a work capability assessment to determine her capability for work because she was a full-time student. Subsequently, her claim for universal credit was rejected.
In Autumn 2019, Sidra sought advice from RNIB’s Sight Loss Advice Service on her welfare benefits matter. At this time, we advised her that the current regulations created a barrier for disabled students in full-time education in securing universal credit and the only route to challenge this was by taking a judicial review.
"I was concerned that the current policy could put disabled people off becoming students. It is important for me to challenge DWP’s policy because if my judicial review succeeds, then other disabled students will not have to go through the same struggle as I did to get benefits."
In December 2019, RNIB sent a pre-action protocol letter to the DWP. Claire Connolly, a solicitor with our Legal Rights Team, said:
"Our view was that the Secretary of State’s interpretation created a “Catch 22” situation where disabled students have their universal credit claims rejected because they do not hold the required proof of limited capability for work from the outset of their application. But they are denied the opportunity to have a work capability assessment because they do not have an active universal credit claim."
The Department did not accept that their guidance was unlawful and rejected our case. To continue with the judicial review action, RNIB referred Sidra’s case to Leigh Day, a law firm that specialises in human rights and judicial review. In March 2020 Leigh Day filed a judicial review claim on behalf of Sidra and another claimant.
On 6 October 2020, Mr Justice Fordham declared that the Secretary of State (in her role determining how the law should be implemented in practice) had acted unlawfully in applying the regulations. He quashed the Government’s decision that Sidra had no entitlement to universal credit, ordered her entitlement to be reassessed and the Government to pay costs. A copy of the order can be found here.
RNIB welcomes this decision and we are now supporting Sidra with the work capability assessment process.
The Secretary of State has since made amending regulations which came into force on 5 August 2020. The amendment makes it clear that the DWP is no longer required to refer a claimant in education for a WCA where they are in receipt of personal independence payment (PIP), disability living allowance (DLA) or attendance allowance. In order to qualify for universal credit, a disabled student must already have a limited capability for work determination in place on, or before, the day they claim universal credit.
This amendment cements the very limited circumstances in which a disabled student can apply for universal credit. More work needs to be done to improve the support available to students with disabilities, and we are considering what steps to take next.
RNIB supports the Work and Pensions Select Committee’s recommendation, that receipt of PIP or DLA should be accepted as evidence of limited capability for work, allowing disabled students to receive universal credit.
Claire Connolly from our Legal Rights Team adds:
We were disappointed that the Government did not consult the Social Security Advisory Committee, or any other external body, before amending the regulations. We now want to see them revisit this issue and provide for direct entitlement to universal credit for disabled students.
How to get help if you are affected
It may be possible to ask for a review of the decision on your entitlement if you were a student who was incorrectly refused universal credit (this will particularly apply to claims made before 5 August 2020).
If you are a student who may need to claim universal credit in the future, it may still be possible to secure a limited capability work determination by claiming contribution-based Employment and Support Allowance, or by asking to be credited with national insurance contributions.
We’d be happy to help you make your case. If you are a blind or partially sighted student affected by either the old or new rules, get in touch with us. You can email [email protected], or call 0303 123 9999, 8am to 8pm on weekdays, and 9am to 1pm on Saturdays.