The DWP has issued new guidance - ADM Memo 16/20 - on recent regulations issued to “restore the policy intent” that “the limited capability for work determination, must be met by a disabled student on or before the date of claim for Universal Credit”.
The regulations - The Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2020 (SI.No.827/2020) came into effect from 5 August 2020.
The new guidance says the new regulations do not apply in relation to a claim or an award made without a claim for UC made before that date.
ADM Memo 16/20 advises that a person who is receiving advanced (higher) education is not entitled to Universal Credit unless satisfying an exception.
The exception to the requirement not to be receiving education is satisfied if the person is entitled to AA, DLA or PIP and it has been determined -
- that the person has a limited capability for work (LCW) or a limited capability for work related activity (LCWRA) on the basis of a work capability assessment; or
- that the person is to be treated as having a LCW or a LCWRA -
and that determination was made on or before the date of claim to UC, where the person is receiving education on the date the claim is made, or the date on which the person starts receiving education, where the person starts receiving education after the date of claim to Universal Credit.
Previously commenting on the new regulations, Ken Butler DR UK’s Welfare Rights and Policy Officer said:
"A legal stamp has been placed on the rejection of a Universal Credit claim made by a full time disabled higher education student (not previously in receipt of ESA) on the grounds that they have not been determined to have a LCW.
But then for the Universal Credit section to refuse to arrange a work capability assessment to determine if they have a LCW.
Even though they may clearly meet the Universal Credit means test if found to have a LCW.
The only way around this is for the disabled student to make a claim for contribution based New Style ESA (NSESA) - for which they will not meet the national insurance contributions entitlement conditions!
Despite this, following their NSESA claim, a work capability assessment will eventually be held. Only then If a LCW decision is made can any means tested Universal Credit entitlement be awarded.
This torturous route is absurd. Worse, it undoubtedly has the effect of deterring Universal Credit claims by some disabled students. Some will not know to claim NSESA ‘workaround’ if refused and some may even not pursue their higher education course.”
Of the new guidance he said:
"It completely leaves out how a disabled student is able to get out of the Catch 22 situation of not being found to have a limited capability for work but given no opportunity to have a work capability assessment to show this.
Can the policy intent of the new regulations really be to deny beneift to those people who are entitled to it?"
ADM Memo 16/20 is available from gov.uk
For more information see New regulations issued excluding disabled students from Universal Credit entitlement available from disabilityrightsuk.org.