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High Court finds DWP acted unlawfully in refusing disabled students Universal Credit

Friday 13th November 2020

A recent High Court Judgement has found that the Department for Work and Pensions (DWP) acted unlawfully, where prior to 5th August, it refused Universal Credit to claimants who were receiving education without first carrying out a work capability assessment. 

The Court found that the correct procedure should have been to carry out work capability assessment before making any decision on a disabled student's entitlement to Universal Credit.

Where the student in question was on PIP/ DLA and also established that they had a limited capability for work under this assessment, they should have been awarded Universal Credit regardless of the fact that they were in education.

If your son or daughter had applied for Universal Credit before the 5th August, was on PIP or DLA at the time and was refused Universal Credit because they were in education, without any work capability assessment having first been carried out, you may be able to argue that you are entitled to arrears of benefit on the basis that the decision refusing your child Universal Credit was based on an error of law.

It is our understanding that the Secretary of State has now agreed to review Universal Credit claims from disabled students made before 5th August 2020.

Once more detail about this process is available we will provide more information in another news stories.

What about claims for Universal Credit made on or after 5 August? 

On the 31 July, the date she was due to file detailed grounds of defence in the High Court case, the Secretary of State for Work and Pensions wrote to the Court indicating that she conceded that the DWP had acted unlawfully in refusing Universal Credit to the two disabled students involved in the court case.

However, the very next working day, the DWP rushed through changes to the law which allowed them to refuse disabled students Universal Credit without the need for a work capability assessment.  This means that rather than change a policy that was found to be unlawful, the DWP have changed the law so that their policy of refusing disabled students Universal Credit could continue.

Despite this, it should still be possible for young disabled people in education to make a successful claim for Universal Credit. However, in order to do so they may need to first force a work capability assessment by making a 'credits only' claim for new style Employment and Support Allowance. This is a complex process. However it is explained in detail in the second half of our free factsheet on 'Claiming Universal Credit for a young disabled person'.  

Claiming Universal Credit for a young disabled person in education is not always a good idea, as this will bring to an end any benefits you get for them as a dependent child such as tax credits, child benefit or universal credit amounts for a child. If you still get payments for your son or daughter as a dependant, seek advice first to make sure that you will not be left worse off. You can find out more about this on our Benefits at 16 webpage or you can call our free helpline on 0808 808 3555.

Try our Common Questions Tool for help navigating the benefits and finance section on our website - based on the most common questions from parents who've called our helpline.