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Disclaimer - please read

This page does not apply outside England, Wales and Scotland.

Further and higher education in the DDA (before Sept 2006)

(This page applies only to acts of discrimination before 1st September, 2006.
Link to postion from September 2006 onward.)

Part 4 of the Disability Discrimination Act 1995 (as re-written by The Special Educational Needs and Disability Act 2001) covers disability discrimination in the field of education with effect from 1st September 2002. A student only has the rights if his or her stammer is a "disability" as defined in the DDA. The DRC's Educating for Equality microsite is a very useful source of information.

The pre-2006 Code of Practice Post-16 Education, which I refer to in the summary below as the "Code", is available on the DRC website. It can also be ordered from the DRC, eg through the DRC helpline. The Code of Practice is not an authoritative statement of the law - it is for the courts to interpret the law. However, court must take into account any part of the Code that appears relevant.The full text of the legislation is also available on the internet.

Northern Ireland has separate rules, so this page may not apply. However, the provisions discussed on this page do apply in Scotland as well as England and Wales. The legislation generally came into effect on 1st September 2002, but there is an exception for some reasonable adjustments and I deal with that below.

What institutions are covered?

England and Wales

In England and Wales the educational institutions covered are those:

• within the higher education sector;
• within the further education sector; and
• other institutions designated by order - they must be wholly or partly publicly funded.

The rules are also adapted to cover in England and Wales:

• higher education secured by a local education authority;
• further education
  • secured by a local education authority, including adult and community education, or
  • provided by a maintained school (to people other than pupils); and
• recreational or training facilities secured by a local education authority.

Scotland

Coverage in Scotland includes institutions in the higher education sector, colleges of further education and more - see para 3.1 onwards and Appendix 2 of the Code on that as well as on the position in England and Wales.

Excluded

Not covered are:

• schools in respect of provision to their pupils, even pupils over 16; they are covered by the specific DDA rules for schools (The position is different for a few specialist residential schools designated by regulations); and
• wholly privately funded post-16 providers and providers of work-based training; they and any other post-16 providers not covered by these rules are likely to be subject to the general goods and services provisions.

Liability

An institution is only liable for itself and its agents, not eg for a separate examining body (but see below) or business (see work placements below).

The legislation talks not in terms of the educational institution but its "responsible body" as defined. This will often be the governing body. However, for simplicity I generally talk about about the "educational institution" or "institution" rather than the "responsible body ".

The responsible body is responsible for anything done by employees in the course of their employment, or by agents acting within their authority; but in the case of discrimination by an employee the responsible body has a defence if took such steps as were reasonably practicable to prevent such acts (para 8.5-8.7B of Code). Agents and employees may be personally liable for aiding unlawful acts, even if the responsible body has a defence (para 8.8-8.10A).

What is the basic duty not to discriminate?

Areas covered

It is unlawful for an educational institution to discriminate against a disabled person:

• in relation to admission or enrollment (eg Example 3.9B in the Code);
• in the "student services" it provides or offers to provide; or
• by excluding him.

'Student services'

"Student services" are widely defined as "services of any description which are provided wholly or mainly for students". Para 2.14 of the Code gives examples, such as teaching, examinations and assessments, arranging study abroad and work placements, outings and trips, research degrees and research facilities, day or evening adult education classes, training courses, distance learning, libraries, careers advice and training, and leisure facilities (para. 2.14 gives many more examples).

Services for people other than students are not within Part 4 but may be covered by other parts of the DDA, eg commerical conference facilities, or commerical research and consultancy services (these may be within Part 3 on goods and services) and services and facilities for staff (these are covered by Part 2, the employment provisions).

Work placements

On a work placement, treatment by the relevant business may be covered by neither these rules nor by the employment rules - see Example 3.6A in the Code, but see also Examples 3.7A and 3.7B as to the institution's obligation to intevene, and Example 3.19C where a contract of employment does exist. Examples 5.8D and 5.8J are also on work placements. The DfES has published a good practice guide: Providing Work Placements for Disabled Students. (Update: Changes in the law cover work placements from October 2004.)

Victimisation is covered (para 8.1-8.4 of Code).

What counts as 'discrimination'?

Meaning of 'discrimination.

An institution discriminates if, broadly speaking:

• it treats the person less favourably for a reason related to his disability, unless the institution shows it is "justified"; or
• to the person's detriment it fails to comply with its s.28T duty to make reasonable adjustments. (More on reasonable adjustments below).

Lack of knowledge defence

An institution has a defence if it shows it did not know, and could not reasonably have been expected to know, that the person was disabled. In the case of failure to make a reasonable adjustment (and possibly other "failure to take a particular step"), it must also show that the failure was attibutable to the lack of knowledge (para 5.11-5.12A of Code). As to institutions taking reasonable steps to find out about the person's disability, see paras 4.17-4.19, 5.10A, 5.14-15 of the Code.

The DfES has published a good practice guide: Finding Out About People's Disabilities.

If one person within the institution or service has been told about the disability, it may not be able to claim it did not know (para 4.20, 5.13 of Code; but see also para 10.2-10.3 on Data Protection Act requirements, and below on confidentiality requests).

What is the "justification" defence?

An institution is entitled to treat a disabled person less favourably, or to fail to make a reasonable adjustment, if it shows it is "justified".

Less favourable treatment or failure is justified if the reason is:

• material to the circumstances of the particular case - so the reasons have to relate to the individual circumstances; and
• substantial, ie not just minor or trivial (para 4.29-4.31D of Code).

Less favourable treatment, but not failure to make reasonable adjustments, is also justified if

• it is necessary in order to maintain academic standards (para 4.26-4.27B of Code);
  • future regulations may extend this rule to other kinds of standards;
  • even though this form of justification does not cover reasonable adjustments, the need to maintain standards will be important in deciding whether adjustments are reasonable (para 6.3-6.6A of Code, including Examples 6.3B and 6.5A); or
• the reason falls within any future regulations specifying other forms of justification.

In looking at whether the institution is justified, it is important to consider whether the institution could make a reasonable adjustment to alleviate the problem. The institution is not justified if it would not have been justified had it made any reasonable adjustments which it was obliged to make.

Duty to make reasonable adjustments

Duty

Under DDA s.28T, an institution must take reasonable steps to ensure that disabled persons are not placed at a substantial disadvantage in relation to "student services" which it provides for or offers to students, or arrangements for determining admissions.

One example (3.9B) in the Code, of discrimination regarding admissions, is of a university failing to give extra time at interview for an applicant with a speech difficulty which gets worse when he is nervous and means he needs extra time to express himself.

The duty is anticipatory and owed to disabled persons in general, though there is discrimination only when unjustified failure to take steps leads to the detriment of a particular person. One example (5.6C in Code) given of anticipating adjustments is arranging disability awareness training.

"Substantial" disadvantage means only "more than minor or trivial" (para 5.2 of Code).

The wide meaning of student services is discussed above.

The reasonable adjustment duty came into force on 1st September 2002 subject to two exceptions:

• the duty to make adjustments involving the provision of auxiliary aids and services came into force on 1st September, 2003:
• the duty to make adjustments to physical features of premises is expected to come into force on 1st September, 2005.

Defences - 'justification' and 'lack of knowledge'

The institution has a defence if:

• it shows its failure is "justified" (The Code gives as an example of likely justification an institution declining to make adjustments on an explicitly vocational course such as an NVQ in plumbing where adjustments would not be replicable in workplace - Example 5.16A. Example 5.16B contrasts a degree course in civil engineering, where a student's failure to be able to practice as a civil engineer would probably not be a material reason.); or
• the lack of knowledge defence applies (para 5.10-5.15 of Code). For this defence to apply, the institution must also show that the failure to rnake the adjustment was attibutable to the lack of knowledge (para 5.11-5.12A of Code).

Some examples

Chapter 5 of the Code deals with the reasonable adjustment duty in much more detail. Chapter 6 looks at what is "reasonable", including relevant factors to consider. I will mention just three examples on "reasonableness" from Chapter 6:

• a very interesting example (6.3B) relating to the maintenance of standards deals with assessing a student on his fluency;
• there is an example (6.5A) of using means other than speech to validate the attainment of academic standards; and
• in looking at the interests of other students as a relevant factor, another example (6.17A) considers that impeding the flow of a 15 minute discussion at the end of each class (in the case of a deaf student with a sign language interpreter) is unlikely to be sufficient reason for the disabled person not to participate in the discussion.

Confidentiality requests

There are special rules on "confidentiality requests" (para 6.18-6.20A of Code). If a request has been made by the disabled person for the nature or existence of the disability to be treated as confidential, and the institution is aware of the request, then in deciding whether a step is reasonable regard is had to the extent to which the step is consistent with complying with the request.

How are examinations and assessments affected?

Covered as 'student services'

Examinations and assessment are covered as "student services". Accordingly the normal duties not to treat less favourably and to make reasonable adjustments apply, subject to the justification and lack of knowledge defences.

Some examples

The Code gives the very interesting example (6.3B) of a college probably not being entitled to mark down a student on an assessment in a Hotel and Tourism course simply because of lack of fluency.

There is also an example (6.5A) of where it could be reasonable to use alternatives to speech (in this case British Sign Language) to validate the attainment of academic standards.

External examining bodies

In some cases an external examining/awarding body or professional body is involved. An institution is only liable for itself and its agents, not for an independent body. Even so, Examples 3.8A, 3.8B and 3.19E in the Code illustrate that an institution is still likely to have some obligations where an external body is involved.

It seems that external examination boards themselves are not currently bound by Parts 3 or 4 of the DDA. From 1st October 2004 there are anti-discrimination rules applying to "qualifications bodies" (eg General Medical Council, Law Society, Public Carriage Office, CORGI). At least in the Government's view these new rules do not cover qualifications such as GCSE and A-level. However, the new rules may cover examination boards in some contexts. The Disability Discrimination Act 2005 will from September 2007 bring examining bodies more generally within the DDA.

Guide to good practice

There is an Examinations and Assessments Good Practice Guide on the DRC website.

If there is discrimination

You can contact the Disability Rights Commission helpline on 08457 622 633 (www.drc-gb.org). See also my page on sources of help and advice.

The Code suggests that a complainant may want to raise a complaint directly with the responsible body, either before or after legal proceedings have started. Many responsible bodies will have complaints procedures which aid speedy resolution (para 9.2 of Code). However, the six month time limit for putting in a formal claim to the court needs to be watched - a complaint to the responsible body would not count as a formal claim.

Complaints can be taken to the County Court in England and Wales, or Sheriff court in Scotland. The time limit to make a claim is generally six months from the discrimination, but if within that time the dispute is referred to conciliation (see below) there is an extension of two months. Also the court has a general discretion to hear claims out of time if it considers it just and equitable.

On a successful claim, the court can award compensation, including for financial loss or injury to feelings. Regulations may set a maximum compensation for injury to feelings. Injunctions, or orders for postive action, are also possible. Chapter 9 of the Code deals with complaints and conciliation.

The Disability Conciliation Service, funded by the Disability Rights Commission, is available as an independent conciliation service, to promote settlement of disputes without going to court. Disputes can be referred to conciliation if both the claimant and responsible body agree. The conciliator cannot impose a settlement on either party. Agreeing to conciliation does not prevent taking the claim to the tribunal or court. (para 9.3-9.4 of Code)

The remit of the Disability Rights Commission is extended to cover the new rules. It is given power to draw up Codes of Practice, as it has done.

Some examples from the Post-16 Code of Practice

• Example 3.8A: "A student at a further education college is studying for GCSEs. Modifications to the delivery of the examination have to be agreed by the examination board. The college has responsibility for finding out what modifications the student may need, for requesting these of the examination board and for making any adjustment needed to the administration of the examination in the college. The college is not responsible for deciding whether modificiations are acceptable nor for any changes to the examinations themselves, which are not covered by Part 4 of the Act."
  
  
• Example 3.9B: "A university requires selected applicants to attend an interview. One applicant has a speech difficulty which gets worse when he is nervous. This means he needs more time to express himself. The university refuses to allow him any extra time at interview. This is likely to be unlawful."
  
  
• Example 4.15A: "A facilitator, employed by a local education authority as part of the authority's community education provision, laughs and makes jokes about the speaking voice of a deaf man to other people in a tenants' association where she is supporting them in drawing up their constitution. This is likely to be unlawful."
  
  
• Example 5.6C: "A youth service requires all of its staff and volunteers to attend disability awareness training and also ensures that its staff training programme includes regular sessions on issues connected with disability. This is anticipating reasonable adjustments that might need to be made."
  
  
• Example 6.3B: "A student with a speech impairment is on a Hotel and Tourism course. Part of the assessment relates to customer service. The assessment usually considers a number of factors including the verbal fluency of each candidate, and on grounds of academic standards, the department refuses to make any changes to the assessment practice. However, fluency is not an essential element of customer service, it is simply an aspect that the assessment to this course habitually takes into account. It is likely to be reasonable, therefore, to make an adjustment that allows the student to show his customer service and conversational skills without demonstrating verbal fluency."
  
  
• Example 6.5A: "A profoundly deaf student is following an art course. Most of the course is practically based. However, students are expected to give an oral presentation of their work. It is likely to be reasonable to allow this student to present her work using British Sign Language."
  
  
• Example 6.17A: "A deaf student on a Basic Skills class has a sign language interpreter during the class. For the final fifteen minutes of each class, the tutor holds a group discussion. Other students complain that the flow of their discussion is impeded because of having to wait while the sign language interpreter translates for the deaf student. However, the delay does not significantly adversely affect the group's learning. This is unlikely to be considered sufficient reason for not allowing the deaf student to participate in the discussion using a sign language interpreter."

Links

• Education publications on the Disability Rights Comission website.
• Learning and Skills Council: DDA page - including links to 'Guidance' and 'Leaflets' as regards the DDA in further education.
• Skill: National Bureau for Students with Disabilities - Guides to DDA Part 4 for staff in higher or further education.

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© Allan Tyrer 2000-2006
Last updated 28th November, 2003   

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