KL v Secretary of State for Work and Pensions

I disagree with K being refused UC from September 2021 due to returning to university on 20/09/21. He claimed UC on 02/06/2021 as he had left Uni in February 2021. We completed a UC50 form - one sent in by post and 1 emailed in - K gets PIP ERDL [enhanced rate daily living]. He is disabled due to his autism. Between June and September 2021 we had a discussion with a work coach who advised K did not have to engage in any WRA and indeed recommended we claim for LCW which we did. We were then told K’s LCW had not been completed due to delays caused by Covid. I submit K is a student who is also disabled, the LCW assessment should have been completed by the 13th week of his claim i.e. by the 01/09/2021, and he is being penalised for this and the lack of capacity of staff at the DWP to complete their jobs when required.

Exceptions to the requirement not to be receiving education

— (1) A person does not have to meet the basic condition in section 4(1)(d) of the Act (not receiving education) if—

the person—

the person is entitled to attendance allowance, disability living allowance or personal independence payment and it has been determined—

and that determination was made on or before the date of claim to universal credit, 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;

the person is responsible for a child or a qualifying young person;

the person is a single person and a foster parent with whom a child is placed;

the person is a member of a couple, both of whom are receiving education, and the other member is—

the person—

Where regulation 9(6)(a) or 9(10) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 (award of universal credit without a claim) applies to a person who is receiving education, paragraph (1)(b) is to be read as if each reference to “date of claim” was a reference to “date of award”.

the person is entitled to attendance allowance, disability living allowance, child disability payment or personal independence payment and, on a date before the date on which the person starts receiving education—

[The Appellant’s representative] submitted that his client had made a legitimate application for Universal Credit on 2^nd June 2021. As part of his claim [the Appellant] had been referred for a Work Capability Assessment on 1st July 2021. By 20th September 2021 when he started on his course that assessment had not been done. It still had not been done by the time of the Decision Maker’s decision some 5 months later, on 15th December 2021. The assessment was never completed. [The Appellant] was in no way responsible for causing the delay in undertaking the assessment, yet he was being penalised for the fact that the Respondent failed to have the assessment done.

This case revolves around Regulation 14 Universal Credit Regulations 2013 and whether [the Appellant] was caught by the changes to Regulation 14(1)(b) introduced by the Universal Credit (Exceptions to the Requirement not to be receiving education) (Amendment) Regulations 2020 and the later amendment Regulations laid in 2021, on his return to University on 2nd September 2021. The tribunal found that he was.

The tribunal finds that the Respondent’s interpretation of the law is supported by its reading of regulation 14(1)(b). The regulation clearly states that in [the Appellant’s] case 3 requirements must be satisfied for him to come within the exemption contained in regulation 14(1)(b). They are:

(1) that [the Appellant] is in receipt of PIP;

(2) that it has been determined that he has limited capability for work,

and (3) that the decision he has limited capability for work was made on or before the date he started receiving education (because he had started to receive education after the date he claimed Universal Credit).

[The Appellant] does not satisfy the 3rd requirement.

The tribunal did not consider ordering that the Work Capability Assessment be completed, or find that [the Appellant] had limited capability for work, because such actions would not change the fact that no determination that [the Appellant] had limited capability for work had been made on or before the date he started receiving education.

The decision of the Respondent (as amended by the Mandatory Reconsideration) is therefore upheld. The appeal is dismissed.

The tribunal recognises that circumstances surrounding [the Appellant’s] Universal Credit claim and the failure to complete the Work Capability Assessment prior to him receiving education, have resulted in him experiencing a potential financial loss and disadvantage through no fault of his own. The particular facts of the case do not sit comfortably with Parliament’s desire not to discourage students with a disability from entering into education. However, the tribunal is bound to follow the rules and regulations that have been lawfully laid down by Parliament. Any remedy must lie elsewhere.

The basis of the appeal is one of reasonableness to the extent that demonstrably the Department for Work and Pensions waited until the 15th of December before rejecting the claim as they had not carried out a work capability assessment within a reasonable period of time.

It is surely to be expected that when an application is made it will be processed diligently and within a reasonable period of time. In the circumstances of this case there is no known reason for the delay in undertaking a work capability assessment and yet the delay that the appellant says is unreasonable is what has caused the application to fail.

The Secretary of State for Work and Pensions (“SSWP”) does not support this appeal. It is my submission that the FtT did not err in law in deciding that the claimant was not entitled to UC from 2 September 2021 on the basis that they were receiving education within the meaning of regulation 12 of the UC Regulations 2013, and contrary to section 4(1)(d) of the WRA 2012. In addition, I also submit that the FtT did not err in law in finding that the claimant could not benefit from the provisions of regulation 14(1)(b) of the UC Regulations 2013.

It is my respectful submission that the assertion by the claimant’s representative’s in their grounds of appeal that the DWP has acted unreasonably, and/or had delayed to the detriment of the claimant by making their decision of 15 December 2021 is without merit.

In particular, I respectfully submit that whilst the claimant was referred for a WCA on 1 July 2021, the claimant commenced a full-time course of advanced education on 20 September 2021. Accordingly, as there had been no determination that the claimant had limited capability for work- or work-related activity (“LCW/LCWRA”) prior to the claimant commencing their course of full-time course advanced education – meaning that they were also receiving education within the meaning of regulation 12 of the UC Regulations 2013, the claimant ceased to be entitled to an award of UC at this point, as they ceased to meet a basic condition of entitlement to UC, as provided by section 4(1)(d) of the WRA 2012. I submit that it is irrelevant that the DWP did not make an outcome decision on behalf of the SSWP until 15 September 2021. For the claimant to fall within regulation 14(1)(b) of the UC Regulations 2013, the WCA would have had to have been completed within a period of less than three months and, in addition, for there to have then been a determination that the claimant had LCW/LCWRA. I can respectfully confirm that there is no provision that specifically stipulates that a WCA must be carried out in a timeframe shorter than the above period. Moreover, and notwithstanding the application of regulation 14(1)(b) to the claimant’s circumstances, the claimant’s circumstances also did not engage any other ground under regulation 14 of the UC Regulations 2013 that would except them from the requirement to not be receiving education, as per section 4(1)(d) of the WRA 2012.

The Secretary of State does not have an express duty to carry out a PIP assessment, in response to a PIP claim, although such a duty is clearly implied because, without an assessment, almost no one apart from the terminally ill would ever become entitled to PIP. There is also no express statutory requirement for a PIP assessment or consultation to be carried out, or a PIP claim decided, by any specified date.

Mr S’s representative draws my attention to the High Court’s decision in R (C &Another) v Secretary of State for Work And Pensions & Another [2015] EWHC 1607 (Admin). On that claim for judicial review, the Secretary of State conceded that delays in carrying out PIP assessment consultations, and deciding PIP claims, were “unacceptable”. The parties agreed that “in domestic law … the Secretary of State is under a public law duty to determine the PIP applications within a reasonable time”. The High Court (Patterson J) went on to hold that delays of 10 and 13 months in determining the claimants’ PIP claims were unlawful. In the light of the claimant’s personal circumstances, their PIP claims were not decided within a reasonable time. However, Patterson J declined to rule generally on what would be a reasonable time for deciding a PIP claim. This would vary according to the circumstances of individual claimants.

It seems to me that in considering whether the delays which are agreed to have occurred in the claimants’ cases are unlawful I have to disregard what may be regarded as desirable to reach the best standards. I have to consider whether there has been a breach of duty on the part of the Secretary of State to act without unreasonable delay in determination of the claimants’ claims for PIP in all of the circumstances.

… that estoppel cannot prevent a statutory duty from being carried out: see R(CS)2/97, R(P)1/80, R(SB)1/83, R(SB) 4/91 and R(JSA)4/04. Both estoppel and legitimate expectation are based fundamentally on fairness (in the latter as a counter to abuse of power), whether that is procedural fairness or substantive fairness. But neither legal test can, in my judgment, enable fairness to require the Secretary of State to act contrary to duties entrusted to him under an Act of Parliament.

Nicholas Wikeley

Judge of the Upper Tribunal