Disabled student given permission to legally challenge new regulations preventing him claiming universal credit

Flinn Kays, aged 18, claims that new regulations that bar the path to disabled students having a work capability assessment (WCA) and thus claiming universal credit, are unlawful.

When the benefit was originally created, it was intended, and Parliament agreed, that disabled students who could show that they had limited capability for work should be exempt from the rule that individuals can’t claim universal credit whilst in full-time education.

However, in approximately 2018 it became evident that an internal policy existed which directed DWP staff to reject outright the universal credit claims of disabled students. Last year, following a judicial review challenge by two students, Sidra Kauser and ‘JL’, the Secretary of State for Work and Pensions Theresa Coffey conceded that the policy was unlawful and a judge approved and sealed an Order to that effect on 31 July 2020. Sidra and JL were both granted a WCA.

But within a matter of days of this concession, on 5 August 2020 the SSWP laid regulations which changed the law so that other disabled students who would in future make a claim for universal credit would not be invited to a WCA. Therefore their limited capability for work would not be established. Claims for universal credit are currently being refused on that basis.

In making these regulations, the SSWP used the negative resolution procedure but instead of observing the 21-day rule, which dictates that, wherever possible, an instrument subject to the negative procedure will be laid at least 21 days before it comes into effect, she laid the regulations just one day before they came into effect. Neither did she consult with the Social Security Advisory Committee prior to making the regulations despite an express statutory duty to do so. She attempted to rely on “capacity restraints because of the need to respond to the Covid-19 pandemic” and because “the existing provisions are now considered to not provide the legal clarity needed.” The existing provisions were perfectly clear: disabled students in full-time education with limited capability for work were entitled to universal credit.

Now, represented by Leigh Day solicitors, Flinn, a first-year psychology student at Bath Spa University, has been granted permission to apply for judicial review of the Universal Credit 2020 Regulations which amend the 2013 regulations significantly and exclude disabled students like him from entitlement to the means tested benefit.

He is asking the court to quash the 2020 regulations on the grounds that: the Secretary of State unlawfully failed to consult, they are discriminatory under Article 14 ECHR, they are irrational and they breach public sector equality duty under the Equality Act 2010.

Flinn’s disabilities include autism spectrum disorder, attention deficit hyperactivity disorder, sensory processing disorder, auditory processing disorder, and connective tissue disorder which affects his mobility.

He currently receives the enhanced rate of both the mobility and daily living components of the personal independence payment (PIP), but is having to use that money to meet his general living expenses. He calculates that he may be entitled to £899.11 a month universal credit. But in line with the new regulations, his own application for universal credit was refused and he was not invited to a WCA.

Flinn Kays 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.”

Leigh Day solicitor Lucy Cadd 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.”