Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2021
Lord Storey
That a Humble Address be presented to Her Majesty praying that the Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2021 (SI 2021/1224), laid before the House on 4 November, be annulled because (1) they will remove vital support for disabled young people, and (2) Her Majesty’s Government have not sufficiently assessed the impact the regulations will have.
Relevant document: 21st Report from the Secondary Legislation Scrutiny Committee
Lord Storey (LD)
My Lords, disabled young people need all the support and help that our society can give them. Those disabled young people who have become students—who are learning and want to progress in education and who want to go to college and university—should not be facing barriers. They should not be facing checks and counterchecks, making it as difficult as possible for them to get the financial support that they need. It strikes me as strange that we hear from the Government so many times that there should be no barriers to learning or supporting young people, when these very young people have barrier after barrier against them.
Tomorrow, sadly, the new regulations come into being, and that will have dire consequences for disabled people in education, as they will be prevented from claiming crucial universal credit. The new regulations will prevent disabled people who are receiving education accessing a universal credit claim if they have not established what is called a “limited capacity for work” status before they started receiving education. This effectively means that many disabled people will be unable to receive universal credit if they are in education, which creates the risk that certain groups of young people will be unable to finish their education, limiting their employment opportunities in future.
Of course, this is not the first time that the Department for Work and Pensions has misinterpreted the needs of disabled people. Disability Rights UK stated that 30,000 disabled students could have been affected by the DWP’s misunderstanding of the law which prevented thousands of disabled students from claiming benefits essential for their cost of living in the past seven years. Testimony of numerous disabled students has described cases where education has been put beyond their reach.
In 2013, around 8.6% of higher education students were disabled, yet in an NUS survey from that year, 59% of disabled respondents agreed or strongly agreed that they had been worried about not having enough money to meet basic living expenses, compared to 47% of non-disabled respondents. Only 33% agreed or strongly agreed that they were able to concentrate on their studies without worrying about finances, compared to 45% of non-disabled students, and 55% have already seriously considered leaving their course, compared with 35% of non-disabled respondents. Among those, 54% reported that it was because of financial problems, 36% because of a health problem, and only 20% that it was because of a disability issue.
Although this data is from 2013, it shows important patterns in the difficulties that disabled students have faced in the past and continue to face today in financing their studies. The current proposed changes will only exacerbate obstacles faced by disabled students in accessing high-quality education, forcing certain disabled students to choose between staying in education, but without being able to access crucial resources in sustaining themselves, and dropping out altogether, which will create immeasurable strain on their current well-being as well as future prospects. Overall, cutting off access to universal credit for many disabled students who are currently in education would create additional obstacles and severely impede the Government’s objective of empowering and supporting disabled people across the UK.
Even before the regulations come into force tomorrow, the current rules make it difficult for disabled people in education to claim universal credit, and the new rules will restrict access even further. Students are caught in an impossible situation; they need a work capability assessment to get a “limited capacity for work” status, but the main way in which to access that assessment is by starting a claim for universal credit, and they need “limited capacity for work” status before they can get universal credit. It is not clear how refusing disabled people means-tested support through universal credit, because they do not have “limited capacity for work” status before receiving education, would support them in achieving their potential or starting, staying and succeeding in employment.
This is not an area of strength for me, and I have struggled to understand many of the issues—so God help those poor students who are trying to work their way through this. In reality, the regulations will force many young disabled people who cannot go without financial support from universal credit to drop out of education altogether. What the Government are doing is, frankly, appalling: disabled students already face so many barriers to engaging fully in education, and now the Government plan to callously rip away the additional support offered by universal credit. This truly is penny-pinching of the worst kind. As Child Poverty Action Group has warned, this change in the rules will close off the only route for young disabled learners, meaning that many could be forced out of education altogether. We need to support and empower everyone living with a disability to achieve their full potential, not pull the rug out from underneath them. I beg to move.
Lord Shipley (LD)
My Lords, during this year, I have been chairing the Youth Unemployment Committee. The day after the publication of our report Skills for Every Young Person a couple of weeks ago, I received some comments on the sections relating to disabled young adults concerning the impact of this statutory instrument on the report’s objectives. The context of our report was that, while there was a range of mechanisms in place to support young people with additional needs, the recent Plan for Jobs had no targeted support for people with disabilities. We said that, as part of their forthcoming consultation on strengthening pathways to employment for disabled people, the Government should consider grant funding for a jobs guarantee for unemployed disabled young people.
Meanwhile, quite separately, this statutory instrument has been tabled, and it is very worrying because it is not a minor change. The assessment for a limited capability for work determination now must be made before the young person becomes a student. Only then are they entitled to universal credit. That, as my noble friend Lord Storey has made clear, is a significant change. I hope that the Government will reflect on how this position has been reached, not least because this proposed change in benefit entitlement has not been subject to parliamentary scrutiny.
Those affected are, first, young disabled people aged 16 to 19 and those with long-term health conditions who previously would have been able to claim universal credit in their own right. Secondly, it affects those young disabled people or those with long-term health conditions who are in advanced education: typically 18 to 23 year-olds attending university. Thirdly, it affects those who continue in non-advanced education but who cannot qualify for help because of their age. There has been no published impact assessment, but because individual circumstances can be complex, there might be a wide variety of impacts that should have been properly analysed and still should be, and the information shared. I regret very much that this has not been done. As my noble friend Lord Storey said, young disabled people face multiple barriers, and these regulations should not be adding to them.
Baroness Bennett of Manor Castle (GP)
My Lords, this important Motion really deserves attention: the noble Lords, Lord Storey and Lord Shipley, have set out the case very clearly. The Government often express great concern about productivity and unemployment, and stress their belief in the importance of education. Of course, we talk very often in your Lordships’ House about the skills shortage and how we have to fill it in; but what we have here is a change carried forward, as has been outlined, in an utterly inappropriate way. It will deprive people—mostly young people—who are seeking to make the most of their skills, talents and abilities of the means to move forward; they will be put in a position where that is simply no longer possible. It is worth thinking about how incredibly dispiriting that is for each individual affected. They will find themselves in this situation when they thought they were doing everything right—everything that society had been telling them that they were supposed to be doing—and now face the disappointment of their parents and families, who see this opportunity being snatched away.
I have put this in the Government’s own terms: what will this do for the economy and for GDP? However, I would also put it into broader, green terms. We face economic, social, environmental, political and educational crises. We have a huge shortage of human resources capable of solving all those problems that are facing us. We need to ensure that every individual in our society is allowed to develop to their full potential.
Baroness Sherlock (Lab)
My Lords, I thank the noble Lord, Lord Storey, for introducing his Motion and all noble Lords who have spoken. I reassure the noble Baroness, Lady Bennett, that while this may not be a large debate, with my help it may be slightly longer than it might otherwise have been. The reason for that is, as the noble Lord, Lord Storey, said, that this is a very complicated area. I want to set out what I think has got us to this point and invite the Minister to correct me if I am wrong, because it is important that we get that down on the record. I am grateful to the Secondary Legislation Scrutiny Committee, which noted that the concept behind these regulations had been “poorly explained” in the first version of the Explanatory Memorandum, and asked the DWP to reissue it. That has helped us.
The rules specify that, to claim universal credit, there is a broad condition that you must not be receiving education—but Regulation 14 of the Universal Credit Regulations 2013 says that there are some exceptions. They include young people living independently doing A-levels or the like; those who are responsible for kids; and some disabled people who get attendance allowance, disability allowance or PIP and have limited capacity for work. All Regulation 14 does is remove the blanket requirement that you must not be in education to get universal credit. It does not stop people in those groups from facing conditionality, but disabled people in that third category—with limited capability for work—were able to get universal credit while studying.
However, there was a judicial review last year, instigated by two disabled students on the grounds that, before rejecting their claims for universal credit, the DWP should have determined whether they had limited capability for work. In the end, the Government did not defend the claim. What they did instead was to introduce the Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2020. Those regulations amended the 2013 regulations so that a disabled student would be eligible for universal credit only if they were classed as having limited capability for work before they started education; or if they were already in education before they made a claim for universal credit. What is happening here is that the DWP now says that those regulations were deficient because they permitted a workaround: namely, that if a disabled student makes an application for new-style ESA—contribution-based employment and support allowance—and supply medical evidence, they will automatically be referred for a work capability assessment, which could lead to them being classed as having limited capability for work. They would then be entitled to claim universal credit. The Government therefore brought forward these regulations to stop that workaround as well.
I have some questions. First, will the Minister say whether that is an accurate description of where we are? He can nod if he wishes. I can see him nodding: that might be a gesture of trust on his part, but I definitely note his nodding. I am sure the cavalry will arrive to reverse that nod should it prove to be an ambitious and premature nod.
Secondly, can we establish the size of the problem we are dealing with in this workaround? How many such cases were there last year or in the latest period for which figures are available? I tried to find this out myself, but the data do not seem to record student status. However, using age as a proxy—it is not a bad proxy for this population—I went poking around on the data on Stat-Xplore, and I think that the answer is that there are very few cases indeed. If I read it correctly, in the quarter to May, there were only 39 people aged 21 or under in the support group of new-style ESA. Can the Minister say if that seems right?
Thirdly, what is the effect of this latest tightening? If I have understood it aright, these latest regulations mean that no disabled student will be entitled to claim universal credit unless they have been deemed to have limited capability for work before they start their course of education. Even someone in that tiny category—someone who claimed new-style ESA and was classed as having limited capability for work—would be entitled to universal credit only if that happened before they started their course.
What will that mean? Like other noble Lords, I have had representations, particularly about the position of young disabled people. The Child Poverty Action Group says that the current workaround is used by some young people who are over 19 but still in basic education. Their parents can get support and universal credit for them, but that stops at the September following their 19th birthday. If this workaround is removed, the only option for these young disabled people would be to apply for universal credit in their own right. There is then a risk that they would not be allowed to carry on with their studies, unless their work coach decides that carrying on studying, even in basic education, is their best chance of getting a job.
The charity Contact says that some young people who have reached the September after their 19th birthday and are on non-traditional courses, such as life skills, may be able to convince their work coach to treat them as though they are not receiving education and thus get universal credit. However, Contact is worried that those who have not reached the milestone of the September after their 19th birthday are now at risk of being shut out of universal credit altogether. Can the Minister say what will happen to them?
I will give one brief example from Contact of a woman called Doreen, who said:
“Our grandson is 21 and lives with us, his grandparents. Our grandson is in full time education at an autism specialized college with an EHC plan. He’s been getting Universal Credit since he was 17. That’s his financial income to enable him to stay in full time education to get the qualifications he needs for possible future employment. Without Universal Credit he wouldn’t have been able to continue his education at his specialist college.”
Can the Minister say what would happen to someone in those circumstances?
CPAG warns that the regulations could stop disabled people moving from college or school to university. It takes four months on average to get a work capability assessment, so how could people do that before starting university? Or is the intention that they should not, because they should rely on loans and grants?
Finally, if the Government are legislating again simply to deliver on the original policy intention of the 2013 regulations, which they say they are, why has it taken eight years, judicial review and three sets of legislation to get to that point? How confident is the Minister that we will not be back with a fourth set of regulations next year? There is of course another JR making its way through the system at the moment.
This is the latest iteration of an issue that crops up often, most recently during the passage of the Skills and Post-16 Education Bill, which a number of us were involved with. It is a tension between the DWP and DfE as to who supports certain categories of people going through education. Here, the DWP is claiming that disabled students are just like any other students and that, if they want to go into education, they should get grants, loans and bursaries like any other student.
However, as CPAG points out, many students now have to work to supplement any grants or loans they receive to get through their education. Many disabled students would find it much less easy to work alongside their course. Treating people the same does not always leave us in the best position.
Given the state of the disability employment gap, surely we all want to do everything we can to help disabled people get the education they need to get on and get a job in the future. The noble Baroness, Lady Bennett, is absolutely right: we should invest in all our people to enable them to fulfil their potential.
I think the Minister is unlikely to accept the Motion in the name of the noble Lord, Lord Storey, given that it is a fatal Motion and the convention in this House is that we do not support Motions that will annul regulations. However, it is crucial that he looks carefully at the issues facing disabled students. Will the Government agree to review all the support provided to them, to see whether it really is possible for them to move on to education and develop as they should? I look forward to his reply.
Baroness Janke (LD)
My Lords, we have heard from noble Lords today that a great injustice is about to be perpetrated on young people with disabilities. As we have heard, many young people still in education will be ineligible for universal credit unless they have had a work assessment and been assessed as having limited capability for work
“before they started receiving education”.
The noble Baroness, Lady Sherlock, has explained the background to this sad state of affairs.
Disability Rights says:
“The new regulations are really bad news for disabled students … Unfortunately they put a legal stamp on what has been the actual operational practice of the DWP that places them in a Catch 22 position.”
The position has been to reject a universal credit claim made by a full-time disabled student who was not previously in receipt of educational support allowance
“on the grounds that they have not been determined to have a LCW”,
or limited capability for work, and 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.”
As the noble Baroness, Lady Sherlock, explained, the way round this is for the disabled student to make a claim for contribution based on new-style ESA, for which they will not meet the national insurance contributions entitlement conditions, having not been in employment and therefore not contributing.
Despite this, the student will get a work capability assessment but, as Disability Rights explains only
“if a LCW decision is made can any means tested Universal Credit entitlement be awarded.”
It continues:
“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’ … and some may even not pursue their higher education course.”
This is a significant change from the previous system in which disabled people in receipt of disability living allowance or personal independence payments were automatically determined as having limited capability for work.
Furthermore, as others have said, these new regulations were not subject to review by the Social Security Advisory Committee or any equality impact assessment before being issued. As Disability Rights notes, they
“cast doubt on the Government’s commitment to ensure disabled people’s access to education. In addition, they will in turn cast doubt as to the Government’s commitment to increase the number of disabled people in employment.”
It is worth reminding ourselves of extracts from Shaping Future Support: The Health and Disability Green Paper, in which the Government say:
“Our first priority is to support disabled people and people with health conditions to live independently and achieve their potential. This means that people should be provided with the right amount of financial support, given the opportunity to make their own choices, have equal access to services, be supported to access healthcare and treatment, and be able to participate in society on the same basis as other people.”
How can these new regulations support these objectives and why were they not scrutinised by the Social Security Advisory Committee? Why was no equalities impact assessment carried out? I hope the Minister can help us with answers to these questions.
This change will severely affect disabled young people who reach the age of 19 before finishing non-advanced education and those continuing to higher education. Many young people with impairments will take much longer to finish their full-time education and will be forced to make an impossible choice between trying to continue without access to the benefits they need or dropping out of education and losing out on future employment opportunities. The reality is that these regulations will force young disabled people who cannot continue their education without financial support to drop out. This also affects families and care givers, as their care responsibilities increase if the disabled young person they care for is not in education.
As many noble Lords have said, this measure is unfair and unjust, and it severely restricts the life chances for young people with disabilities. I hope, although I am not confident, that the Government will think again. We need to give a fair deal to young disabled people who only want the chance to achieve their potential, as the Government say, with the right amount of financial support, as the Government say, and to participate in society on the same basis as other people—as the Government say. I am not confident, but I hope the House will support this Motion.
The Earl of Courtown (Con)
My Lords, I thank noble Lords for their contributions to this debate. The noble Baroness, Lady Janke, mentioned scrutiny and I will just deal with that quickly. These regulations were subject to scrutiny by the Social Security Advisory Committee on 15 October this year.
In closing, I assure all noble Lords that the Government are absolutely committed to supporting disabled people and are determined that support should be focused on people who need it most. These new regulations do not reduce the existing support, which is correctly available to disabled students, but rather ensure that this support continues to come from the appropriate source of government funding, which for disabled students, as for all students, is the student support system of loans and grants.
These new regulations do not remove entitlement to universal credit from any existing disabled student currently receiving it, nor from any future claim to universal credit from a person entitled to a qualifying disability benefit, such as PIP, who is subsequently determined to have a limited capability for work and wishes to start a course of education.
I should mention that the Government’s support for disabled students does not end on them completing their education. In our national disability strategy, we have committed to improving disabled people’s everyday lives. We have committed to make available the access to work adjustments passport for all disabled students, including those receiving disabled students’ allowance, when they leave university.
To support the transition from education into work, the Department for Work and Pensions is piloting the adjustments passport. We currently have two universities —Wolverhampton and Manchester Metropolitan—piloting the adjustments passport with the aim that a third will come on board in January.
The adjustments passport will provide students with a disability or health condition with an up-to-date record of the adjustments they are using and any future in-work support needs they may have. It will reduce the need for the student to repeat details of their disability and how it could affect them in work and reduce the need for a holistic assessment where the needs are documented.
The adjustments passport will provide a clear gateway of adjustment support by raising the visibility of support available for each stage of the transitions journey. It will also provide a transferable record of adjustments that can be used to support the adjustments journey and reduce the need for assessments. In addition, it will include a communication tool to support discussions with employers. It also gives visibility of in-work support if an employer employs a disabled person, and assurances and support to progress in work. It will also support potential employers by documenting the in-work support the student requires and the possibility of support the student could receive. It will also help to raise awareness of the Access to Work scheme and the support it can provide.
We recognise that talking about workplace adjustments can be difficult. To support and empower the student, the passport can be used as a communication tool to enable them to have a more structured and confident conversation about their disability and the adjustments they need with employers. Knowing what support is available for every stage of the transition journey will help to empower young disabled people to have confidence that their support needs are captured and aspire them to achieve their goals and chosen career rather than limiting their choices.
Once in employment, the passport would continue to add value by supporting progression and enabling disabled people to transfer between job roles more easily by increasing portability of support and reducing the need for reassessment where job roles or needs are similar.
Furthermore, a range of other DWP initiatives is supporting disabled people to prepare for, to start, to stay and to succeed in work. These include the Work and Health programme, the Intensive Personalised Employment Support programme, the Access to Work scheme, Disability Confident and support in partnership with the health system, including employment advice in the NHS Improving Access to Psychological Therapy service.
In 2021, the health and disability Green Paper, Shaping Future Support, explored how the welfare system can better meet the needs of disabled people and people with health conditions now and in the future to build a system that enables people to live independently and move into work where possible. The national disability strategy aims to ensure that all disabled people can play a full role in society. The strategy takes into account the impacts of the Covid-19 pandemic on disabled people, with focus on the issues that affect them the most, including employment.
I turn to the points raised by noble Lords. I will do my best to answer all the queries and if not, will of course write to noble Lords and put copies in the Library. The noble Lord, Lord Shipley, and the noble Baroness, Lady Sherlock, talked about the closed-off route to universal credit. While closing the NSESA route leaves no direct path to claim universal credit for some disabled people who are already in education, in doing so this recognises that all students, including disabled students, have access to the support system, which includes support that recognises a person’s disability, such as the disabled students’ allowance for those in higher education, and discretionary bursaries and grants if undertaking further education. Disabled students also have access to other funds from their colleges. I will need to clarify that point.
The noble Lord, Lord Shipley, was basically saying that the regulations were a regressive change. This amendment to the regulations simply maintains the current policy intent: to allow those entitled to personal independence payments or disability living allowance who are already assessed as having limited capability for work to take up or continue in education, with the intention that it may help them into work in the future. The new regulations do not reduce the existing support currently available to disabled students, but simply ensure that this support comes from the appropriate source of funding, which is the student support system of loans and grants. These new regulations do not remove entitlement to universal credit from any existing disabled student who is currently receiving it, nor from any future claim to universal credit from a person who is entitled to a qualifying disability benefit, such as personal independence payments, who is subsequently determined to have a limited capability for work and who wishes to start a course of education.
The noble Baroness, Lady Bennett, asked why the Government did not do a full impact assessment. An equality analysis was completed and shared with the Social Security Advisory Committee for its consideration. The noble Baroness, Lady Sherlock, also looked at the impact on students in further education with special educational needs and disabilities. Although the maximum allowed duration of a course is 12 weeks, if the work coach considers that the course is compatible with the person’s work-related requirements, they are referred for a work capability assessment and, if subsequently determined to have limited capability for work, there is then no limit to the duration of any subsequent course of training or study which a work coach considers will give the person the best chance of securing work. Additionally, if the person is entitled to a qualifying disability benefit, such as the personal independence payment, they will continue to be entitled to universal credit, as they will now meet the disabled student exception.
The noble Baroness, Lady Sherlock, also mentioned the position of those young people. The condition of entitlement to universal credit is not to be receiving education. Moreover, there are some exceptions, for example, the responsibility of a child entitled to DLA/PIP and already having a determination of LCW. Therefore, most young people, such as those in sixth form colleges, will not be entitled to universal credit as they are already in full-time education. To be entitled to universal credit, disabled students must not be receiving education, already be entitled to a qualifying disability benefit, and already have a determination of LCW through a WCA.
The noble Baroness, Lady Sherlock, mentioned that there had been a number of SIs relating to this and a number of amendments. The Government are committed to supporting disabled people. These regulations ensure that disabled people get support from the correct source of funding—mainly from student finance, as I said earlier.
The noble Baroness also asked about the numbers involved. It is difficult to give any firm evidence through the data. The data on how many disabled students have been using the new-style ESA workaround to meet the entitlement conditions for UC is very limited, but numbers are considered to be relatively small. I cannot go any further on numbers than that at the moment but, if there is anything more I can add, I will of course write to the noble Baroness.
In summary, while it is the case that the amending regulations will close the workaround and end an unintended route to universal credit that a relatively small number of disabled students have been using, the new regulations do not reduce the existing support currently available to disabled students. The new regulations ensure that support continues to come from the appropriate source of government funding, namely the student support systems of loans and grants, which includes support that recognises a person’s disability. I therefore ask the noble Lord, Lord Storey, to withdraw his Motion.
Lord Storey (LD)
I thank all Members for their careful, considered comments, and particularly the noble Baroness, Lady Sherlock, for her thorough explanation of what young disabled students face. Her invention of the ministerial nod is something we should perhaps use in future.
I was very interested in the comments of my noble friend Lord Shipley as chair of the Youth Unemployment Select Committee, which has just produced its report, and of the noble Baroness, Lady Bennett, about that impact assessment. We need to see that and understand it in future deliberations. My noble friend Lady Janke of course talked about the injustice we all face.
This matter is so important, as education would improve disabled students’ employment prospects but also their feeling of well-being and of being part of a community. Of course, it also has some unforeseen consequences. For example, it affects the ability of family care givers to work, as their care responsibilities increase if a disabled young person they care for is not in education. Both the carer and the disabled young person will be worse off as a result.
The Minister said in his closing comments that disabled people will get the funding support they need and that new regulations do not reduce existing support. Those are very powerful words. I am minded to test the opinion of the House on this. However, if the Minister can give me one of these new-found ministerial nods to say that we can perhaps review the situation and see how his comment that every young person will not get their funding reduced is working out, I am happy to have that opportunity to have a proper discussion and debate about this. I am a little disappointed that so few people were able to be in the House for this important debate.
In June 2021, Flinn Kays, a disabled psychology student who receives the enhanced rate of both the mobility and daily living components of the PIP, which the Minister talked about, was granted permission to apply for judicial review of the 2020 regulations. He calculates that he may be entitled to around £900 a month in universal credit but, due to the 2020 regulations, his universal credit claim was refused and he was not invited to a work capability assessment. There is no date yet for the judicial review, but when that reports it might be a good time for us to come back and debate this whole area, so that we see that, as the Minister said, every student gets the funding they need.