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This page does not apply outside England, Wales and Scotland.
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| Home | Overview | Disability | Employment | Services | Education | Benefits | Business | Advice | Links | More... |
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This page does not apply outside England, Wales and Scotland.
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Part 4 of the Disability Discrimination Act 1995 covers disability discrimination in education. For post-16 education, important changes took effect on 1st September 2006 (see older page on pre-Sept 2006 rules). 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. Link to Overview on post-16 education rules...
Introduction
What institutions are covered?
What activities are covered?
'Discrimination'
Reasonable adjustments
Examinations and assessments
Who is liable?
If there is discrimination
Links
On this page, the "Code" is the Code of Practice (revised) for providers of post-16 education and related services (link to DRC website), dated 2007. The 2007 version includes changes to the law which took effect from 1st September 2006. The previous Code was 2003.
The Code of Practice is not an authoritative statement of the law - it is for the courts to interpret the law. However, courts must take into account any part of the Code that appears relevant.
The post-16 education rules mostly took effect on 1st September 2002, and important changes came into force on 1st September 2006. The relevant legislation is Chapter 2 of Part 4 of the Disability Discrimination Act 1995, as substantially amended by later legislation. There is a consolidated version of the DDA (ie including all the amendments) on the DRC website - though at the time of writing in October 2006 this did not include the 1st September amendments, which can be found in regulation 2006/1721 (link to OPSI website).
Northern Ireland has separate rules, so this page may not apply. However, the provisions discussed on this page apply in Scotland as well as England and Wales.
(For more detail, see paras 3.14-3.18 and Chapter 11 of the Code.)
In England and Wales the post-16 education rules cover institutions:
The rules are also adapted to cover local education authorities when securing higher and further education, including adult and community education.
Coverage in Scotland includes institutions in the higher education sector, colleges of further education and more.
Some education providers are still covered by the pre-September 2006 rules, and I don't deal with those here. The older rules are discussed in Appendix A of the Code. Examples in Appendix A which have particular relevance to speech are para 15 (longer time for letter writing test for dyslexic) and para 53 (knowledge of disability: slurred speech at interview). The education providers still covered by the older rules are broadly:
Not covered by the post-16 education rules are:
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"A student with a stammer feels he is being harassed because his lecturer makes constant jokes about people with speech impairments. He asks his lecturer to stop doing this, but the lecturer says he is being 'oversensitive' as he habitually makes jokes about many different sorts of people. This is likely to amount to harassment because making remarks of this kind should reasonably be considered as having either of the effects mentioned [in para 7.13] above. Para 7.15 |
Harassment and victimisation are also unlawful (Chapter 7 of the Code). Para 7.15 of the Code gives an example of harassment of a student sho stammers - see box.
The obligations of the education provider often continue even where a disabled person's relationship with it has come to an end, for example as regards job references (para 9.49ff of Code).
Discrimination regarding "student services" is unlawful. These are widely defined as "services of any description which are provided wholly or mainly for students".
Para 9.5 of the Code gives examples of student services, 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. 9.5 includes many more examples.
Services provided wholly or mainly for people other than students are not normally covered by this part of the DDA (Part 4) but may be covered elsewhere in DDA. For example, commerical conference facilities, or commerical research and consultancy services are likely to be within Part 3 DDA (on goods and services), and services and facilities for staff are covered by Part 2 (the employment provisions). However, non-students can claim under Part 4 in respect of examinations and assessments.
Where a student does practical work experience for a limited period as part of their vocational training, the work placement provider is likely to have duties under the DDA employment provisions. The DfES has published a good practice guide: Providing Work Placements for Disabled Students (external link).
An institution discriminates if, broadly speaking:
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"A student with a speech impairment is studying for a politics degree. A lecturer does not enter the student as a candidate for a debating session because he assumes that students with speech impairments would have difficulty participating. Although the lecturer had good intentions when making this assumption, the effect was to treat the disabled student less favourably on the grounds of his disability. The act of direct discrimination in this case is the assumption that anyone who has a speech impairment would have difficulty participating in a debating session, effectively rejecting a whole category of people with no consideration for their individual abilities." Para. 4.7. "In [a previous example where a woman with cerebral palsy was not accepted onto a course in car maintenance due to lack of manual dexterity] the speech of the applicant is also affected by her cerebral palsy. The course does not require clarity of speech. The comparator in a claim for direct discrimination would be an applicant with a similar level of manual dexterity but it would not be necessary for the comparator to have a speech impairment (because the way in which the applicant speaks is not relevant to the applicant's ability to do the course)." Para. 4.13. 'Disability-related discrimination' examples: "A student with cerebral palsy which affects her speech, is working on her thesis for her research degree. Her personal tutor avoids supervision sessions for individual discussion with the disabled student because the sessions take longer than with other students due to her slow speech. Although there is no other student undertaking the same course, the department's protocols for research degrees suggest that all personal tutors should hold regular supervision sessions with research degree students. The student can point to this policy as an example of how other research degree students would be treated." Para 6.8 "A man with a medical condition that causes fatigue and subsequent loss of speech control applies to a university for a postgraduate degree. The application form does not ask whether he has a disability nor whether he would have any particular needs when attending interview. He attends an interview, during which he is very listless and his speech is very slurred because he is tired from the journey, and the selectors turn him down because of this. He mentioned at the interview that he felt tired but the panel ignored this. The selectors' treatment of the applicant is likely to be unlawful." Para 6.11 |
The importance of direct discrimination is that the institution has no 'justification' defence - the institution cannot claim it had a material and substantial reason for treating the person less favourably.
Basically, the test for direct discrimination is whether the person was treated less favourably on grounds of a disability as compared with someone who does not have that particular disability and whose relevant circumstances, including their abilities, are the same or not materially different. Direct discrimination is discussed in more detail in Chapter 4 of the Code, and on my website under employment.
An example of direct discrimination may be where the institution makes generalised or stereotypical assumptions about a disability or its effects. The Code points out that an institution would not normally make such assumptions about a non-disabled person, but would instead consider his individual abilities (para 4.5 of Code). Para 4.7 of the Code gives an example of this about a speech impairment, where the student is not entered as a candidate for a debating session because of the lecturer's assumptions (see box). The example also illustrates the idea that direct discrimination need not be conscious - people may hold prejudices that they do not admit, even to themselves.
Para 4.13 of the Code (see box) uses an example about clarity of speech to illustrate that the comparator need only have the same circumstances and abilities so far as these are relevant to the matter to which the treatment relates. So, for example, if the less favourable treatment is that the person was was not admitted to a course and the way he speaks is not relevant to his ability to do the course, his treatment is compared with how someone without a speech impairment would be treated.
WARNING: The text below needs to be updated. The House of Lords decision in London Borough of Lewisham v Malcolm (June 2008) will, if it applies to education, make it harder to argue discrimination for a reason related to the disability. Claimants may more often seek to argue their case as a breach of the duty to make reasonable adjustments. More on the House of Lords decision...
Here the institution may have a 'justification' defence. Apart from this defence, disability-related discrimination is wider than direct discrimation. It includes less favourable treatment for a reason related to the disability, rather than just because of the disability itself.
For example if the reason for less favourable treatment is that a person takes longer to speak, and that is related to his or her stammer, it is likely to be disability-related discrimination unless the treatment is justified (example in para 8.12 of the Code - see box. This example also illustrates that a disabled person does not have to show that others were actually treated more favourably).
Less favourable treatment can be unlawful even if the education provider does not know that a person is disabled (para 6.11 of Code - including example quoted in box).
Unless there is direct discrimination, an institution is entitled to treat a disabled person less favourably if it shows it is 'justified' in doing so. It must show that the reason is:
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.
There is a different justification test for competence standards - see examinations and assessments below.
This duty is very important. Broadly, an institution needs to make adjustments to what it would normally do so far as reasonable to meet the requirements of disabled people.
More precisely: 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.
'Substantial' disadvantage means only 'more than minor or trivial' (para 5.8 of Code). 'Student services' has a wide meaning as discussed above.
The duty is anticipatory and owed to disabled persons in general. This means it does not only arise when an individual disabled student presents himself. However, there is discrimination only when failure to take steps leads to the detriment of a particular individual. An example of anticipating adjustments would be arranging disability awareness training for staff (cf para 5.11 of Code).
Competence standards are not included in the duty. There is also a reasonable adjustment duty relating to qualifications. See Examinations and assessments below.
There are some examples of adjustments for students who stammer on the De Montfort University website - Working with students who stammer (pdf - external link).
An institution has a defence to not making reasonable adjustments if it shows it did not know, and could not reasonably have been expected to know, that the person was disabled (para 5.20-5.25 and 8.37-8.42 of Code). Knowledge by one employee or agent of the institution is normally enough to count as knowledge by the institution (para 5.24).
As to institutions taking reasonable steps to find out about a person's disability, see paras 5.20-5.22 of Code.The DfES has published a good practice guide: Finding Out About People's Disabilities.
There are special rules on "confidentiality requests" (para 5.26-5.28 of Code). If the disabled person has made a request 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.
Link to Oral assessments, and assessed presentations for examples of what can be done to help people who stammer, and a less technical summary of the DDA rules.
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"A requirement that a person completes a test in a certain time period is not a competence standard unless the competence being tested is the ability to do something within a limited time period." Para 5.74 "The entrance requirements for a GCSE French course state that applicants 'must be able to speak clearly'. This requirement could unjustifiably exclude some people whose impairments result in a significant effect on their speech." Para 8.7 "An adult education college states that it requires a level of English language fluency for entrance onto its courses and specifies a particular test of language fluency that it will accept. An applicant with a speech impairment found that this particular test did not allow for additional time to be given, and as a result she scored much lower than she should have done on the test. The college would be unable to justify rejecting her for not having the required test result if she could show through an alternative test that she had the relevant level of fluency required." Para 8.12 "A college sets applicants for a higher level language course a short oral exercise. A person with a speech impairment is given additional time to complete the exercise. This is likely to be a reasonable adjustment." Para 8.31 "A further education college confers its own qualifications for a course in travel and tourism. One of the criteria for passing the course is 'speaking clearly in a customer services environment'. A disabled student whose impairment affects her speech does not achieve the qualification because of this criterion. Applying this standard may be unlawful." Para 9.19. Slow writer not being allowed twice as long for a shorthand test, as speed is likely to be a competence standard for shorthand. Para 9.24 Possible additional exam time for student with dyslexia. Para 9.31 Viva for deaf student - sign language interpreter and additional time as reasonable adjustments. Para 9.34 |
In general the normal rules apply, including the rules against direct discrimination and disability-related discrimination, and the duty to make reasonable adjustments. This is because examinations and assessment are covered as "student services". There are also rules covering non-students.
However the rules are altered in important ways as regards competence standards. In summary
So it is still possible to challenge the fact that the institution is applying a particular competence standard. However the challenge is not that it should be 'reasonably adjusted'. The challenge is that it results in disability-related discrimination and is not a proportionate means of achieving a legitimate aim - or possibly that there is direct discrimination.
Broadly, a competence standard is a standard - academic, medical, or otherwise - for the purpose of determining whether a person has a particular level of competence or ability. This is discussed in detail from para 5.71 in the Code.
The Code says at para 9.19 that a competence standard which results in direct discrimination is not a genuine competence standard and education providers who apply such standards will be acting unlawfully. It gives the example of a requirement to be able to speak clearly in order to pass a travel and tourism course, as quoted in the box.
There is a duty to make reasonable adjustments to the process by which competence is assessed, but not to the application of a competence standard (para 5.75-5.79 of Code).
Sometimes the process of assessing whether a competence standard has been achieved and the standard itself are inextricably linked. For instance, ability to speak French cannot be tested in writing.
By way of another example, it seems a requirement for a test to be completed in a certain time period is not a competence standard unless the competence being tested is the ability to do something within a limited time period (example in para 5.74 of Code - see box). Accordingly:
Para 8.31 of the Code includes "allowing a disabled person extra time to complete the test" as an example of an adjustment which may be reasonable. There is also an example in the same paragraph about extra time being allowed for an oral exercise given to applicants for a higher level language course (in box).
For more examples of where adjustments can and cannot be required as regards speech, see also the similar rules on trade/professional qualification bodies and general qualification bodies. (The latter only come into force in September 2007.)
There are some examples of adjustments on the De Montfort University website - Working with students who stammer (pdf - external link).
WARNING: The summary on competence standards below is subject to some uncertainty, because of the danger of London Borough of Lewisham v Malcolm (June 2008) applying to education and therefore making it more difficult to claim for disability-related discrimination.
There is a special test to determine whether a competence standard is justified. Where the application of a competence standard amounts to disability-related discrimination (see below), the education provider must show that
So where the reasonable adjustment duty does not apply, the institution must still be able to justify its competence standard in this way to counter any claim of disability-related discrimination.
Paragraph 6.28 of the Code says that to demonstrate that the application of a particular competence standard is a "proportionate means of achieving a legitimate aim", the education provider must show:
The test has been used for some time as a defence to 'indirect discrimination' related to race or sex. For how the courts apply the test, see the Equal Opportunities Commision website.
This applies where a person is treated less favourably for a reason related to their disability. So failing a student in an exam or assessment for a reason related to their stammer (the stammer itself does not have to be the reason) is likely to be unlawful disability-related discrimination unless the 'justification' defence applies.
Disability-related discrimination can also be relevant to requirements for entry to a course (para 8.7-8.13 of Code). "Justification will involve showing that the particular qualification is either a genuine competence standard (which is applied equally to everyone and which is proportionate and legitimate), or, where it does not concern application of a competence standard, showing that there is a material and substantial reason for the rejection" (para 8.12). See the example on English language fluency at para 8.12 of the Code - in box
An example about a ballet course (para 6.26 of Code) indicates that where a particular qualification to enter a course is a genuine competence standard, justifying the standard would involve showing that the criteria are a proportionate way of showing that the person could fulfil the essential requirements of the course.
Generally, including unnecessary or marginal requirements for entry to a course can lead to discrimination. Para 8.7 of Code gives the example of a requirement to be able to speak clearly (see box).
In some cases an external examining/awarding body or professional body is involved. Trade/professional qualification bodies have duties under Part 2 DDA (employment), similar to the rules above applying to post-16 education providers in relation to examinations. Other examination bodies will be covered by new rules from September 2007 - and even now they are often willing to allow special arrangements related to disabilities.
The post-16 education provider is only liable for itself and its agents, not for an independent examining body. Even so, an institution is still likely to have some obligations where an external body is involved (eg para 9.29 of Code, and examples in the Code applying before Sept 2006).
An institution is only liable for itself and its agents, not eg for a separate examining body (but see previous paragraph) or business (see work placements above).
The legislation does not talk in terms of the educational institution. Strictly, it is the institution's "responsible body" (as defined) which is made liable under the DDA. This will often be the governing body. For simplicity I generally talk about about the "institution" or "provider" 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. In the case of discrimination by an employee, the responsible body does have a defence if it took such steps as were reasonably practicable to prevent the actions (para 11.5-11.12 of Code). Even if the responsible body has a defence, agents and employees may be personally liable for aiding unlawful acts (para 11.13-11.17).
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 says that it is good practice to attempt to resolve disputes without resorting to legal proceedings. A complainant may want to raise a complaint directly with the education provider. Many providers have complaints procedures which aid speedy resolution (para 13.2 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 education provider does not count as a formal claim.
The Disability Conciliation Service (www.dcs-gb.org) 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 13.6-13.7 of Code)
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 above) 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. Injunctions, or orders for postive action, are also possible.
Chapter 13 of the Code deals with complaints and conciliation.
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Last updated 15th August, 2007
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