A psychology student at Bath Spa has been granted permission to challenge regulations that prevent him and thousands of other disabled students from claiming universal credit while they are full-time students.
The general position for students in full-time education has long been that they don’t have much access to the benefits system. But there have previously been exceptions for student parents, those who lived away from their own parents because of difficult circumstances or who were previously in local authority care, refugees and disabled students.
Back in 2011 when the new universal credit was being discussed in Parliament, Stephen Timms (then shadow minister for Work and Pensions) was concerned that the switch to UC would deprive some students of financial support unless we were clear about the sorts of exemptions required:
I understand that all those students are able to obtain support under the existing system, and I should be grateful for confirmation from the Minister that it is the government’s intention that each of those categories will be able to receive universal credit under the new system.
And he was particularly concerned about disabled students:
I understand that only those disabled students entitled to disability living allowance can claim income-related employment and support allowance but that other disabled students who do not qualify for disability living allowance can get help from housing benefit. Can the Minister confirm that that wider group will be able to get help under universal credit?
Reassurance came from… Chris Grayling, then a minister at the Department for Work and Pensions:
Our intention under the universal credit is not to redraw any boundaries. We do not want to widen the extent to which those in the education system get support for benefits, nor do we want to remove support from groups of young people and students who get support under the current system, where that continues to be appropriate. For that reason, the Bill as drafted provides a general exclusion for education, along with regulation-making powers to define the precise scope of the exclusion and to create exemptions.
Basically, 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 a personal independence payment (PIP) – should be exempt from the rule that it cannot be claimed by full-time students.
But despite that being reflected in regulations, it later became clear that DWP staff were rejecting the claims of new disabled students – and were only allowing disabled students who had already been found to have “limited capability for work” to qualify for the exemption.
Last year following a challenge in the high court, work and pensions secretary Therese Coffey admitted that the policy was unlawful, and two disabled students were allowed to undergo an assessment to establish their limited capability for work. But following that ruling, Coffey then 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.
Worse still, she made the change to the regulations on 3 August 2020 – the first working day after she told the court she would not be defending the judicial review.
Now Finn Kays, a first-year psychology student at Bath Spa University, has been granted permission to seek a judicial review of the new regulations.
He’s 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.
Lucy Cadd, his solicitor from law firm Leigh Day, says:
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.”
And Disabled Students UK (DSUK) is welcoming permission being granted for the legal action. Amelia McLoughlan, DSUK’s network director, says disabled students are often not able to supplement their income to the same extent as non-disabled students:
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, or the significant barriers to employment disabled people face.”
It’s almost as if we need a proper, integrated, wholesale look at the student finance system and the adequacy of maintenance both for disabled students specifically and for students more generally – one that actively involves the four nations (given student financial support is devolved but benefits aren’t) and properly supports the governments’ access ambitions without dumping all the responsibility for meeting them on universities.
If you’re a disabled student from Wales studying in Scotland how can it be that some of your financial support is determined by Westminster politicians (benefits system), some determined by the Senedd (the statutory support for you as a student) and some determined by the Scottish Parliament (discretionary support from your university). A sorry and unnecessary mess.