Secretary of State for Work and Pensions operated unlawful policy for years of refusing Universal Credit claims from disabled students: R (Kauser and JL) v Secretary of State for Work and Pensions (CO/987/2020, 7 October 2020)

10 November 2020

A new decision of the High Court has demonstrated that between 2013 and 2020, thousands of disabled students entitled to Universal Credit for essential living costs were unlawfully barred from claiming benefit. That happened because the Government had misunderstood the law about how to assess such claims, and adopted an unlawful policy of rejecting them without conducting Work Capability Assessments.

One of those students was Sidra Kauser, a visually impaired masters student in York. Another was JL (a disabled student whose identity has been anonymised by the Court).

About the claimants

The Daily Mirror wrote of Ms Kauser ‘she was left paying for food, clothes and travel from the separate disability benefit PIP, and forced to borrow money from family… She said: ‘A lot of my friends have part-time jobs and that’s not something that would be feasible at all for me. “I pay for taxis and transport, assisted tech and it all adds up.”’

Ms Kauser and JL both receive Personal Independence Payments due to their significant disabilities, but were refused universal credit (‘UC’), which made it much harder for them to afford to continue their studies. They therefore began this judicial review claim, arguing that contrary to the Secretary of State’s approach, the law required the DWP to conduct Work Capability Assessments (‘WCA’) to determine whether they had limited capability for work – in which case they would be entitled to UC.

The charity Disability Rights UK estimated that the government’s policy was adversely affecting 30,000 students.

On Friday 31 July 2020, the Secretary of State, who had previously denied acting unlawfully, told the Court she would not be defending this claim. She subsequently admitted breaching regulation 14(b) of the Universal Credit Regulations 2013 (‘the 2013 Regulations’), and therefore acting unlawfully, by:

  1. failing to determine whether the Claimants had limited capability for work; and
  2. failing to conduct a WCA before deciding the Claimants’ entitlement to UC.

On 6 October 2020 Fordham J declared, with the agreement of the parties, that the Secretary of State had acted unlawfully. He quashed the Government’s decisions which had refused the Claimants’ benefit claims. A copy of the High Court’s Order can be found here.

Sudden change in law

Significantly, on Monday 3 August 2020 – ie the working day immediately after she conceded the judicial review claim – the SSWP amended the 2013 Regulations. The amendment provides that for disabled students making UC claims on or after 5 August 2020, decision-makers are no longer required to refer claimants for a WCA where they are in receipt of attendance allowance, disability allowance or PIP and have not previously been determined to have limited capability for work.

Surprisingly, the Explanatory Memorandum published alongside the amending Regulations makes no mention of the judicial review claim. And it tells Parliament the amendments were being made merely to ‘clarify’ the legislation, rather than to make any substantive change to the law. So the Secretary of State proposed a declaration to the Court that she had got the 2013 law wrong, while telling Parliament that the 2013 law was merely unclear.

Further, the Secretary of State did not consult her Social Security Advisory Committee, or any other external body, before making the amending Regulations.

What disabled students should do now

If you are a disabled student affected by either the old or new Regulations, we recommend that you contact a welfare rights adviser.

For students incorrectly refused UC in the past (before 5 August 2020), it may be possible to ask the Secretary of State to revise her decision; indeed, hopefully the Secretary of State will urgently review past incorrect decisions on her own initiative.

For disabled students who need UC in future, it may still be possible to be referred for a work capability assessment by claiming contribution-based Employment and Support Allowance, or by asking to be credited with national insurance contributions. Those routes may lead claimants to be referred for a WCA, resulting in a determination that they have limited capability for work.

Further, there may be scope for legal challenge to the amending Regulations.

The Claimants in Kauser and JL were represented by Tom Royston and Ciara Bartlam of Garden Court North Chambers, instructed by Lucy Cadd and Tessa Gregory of Leigh Day.

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