Education: disability discrimination in Northern Ireland

Summary

• This page deals with discrimination by education providers and in exams.
• The regime on Special Educational Needs (SEN) (below) may be the primary mechanism to arrange support in school (or pre-school) for a child who stammers.
• Disability discrimination rules on education in Northern Ireland include schools, universities and FE colleges. They are mostly in SENDO (below) rather than the DDA 1995.
• Disability discrimination protection extends to exams, including GCSE and A levels, universities, and professional exams. However (unlike the rest of the UK) it is unclear whether protection extends to discriminatory competence standards. Below Exams.

Guidance on education

The Equality Commission for Northern Ireland (ECNI) has guidance at www.equalityni.org/Individuals/I-have-a-problem-with-an-education-service/Disability .

The website suggests contacting them if you want information or advice.

There are also Codes of Practice on particular areas, linked below.

SENDO

Apart from professional exams, the rules on education are not in the Disability Discrimination Act 1995 (DDA) but in the Special Educational Needs and Disability (Northern Ireland) Order 2005, SR 2005/1117. This is commonly known as SENDO. However the DDA definition of ‘disability’ applies to Part III of SENDO which includes schools, universities and general qualification bodies (s.1 DDA).

Special Educational Needs (SEN)

This regime, including the SEN Code of Practice, is separate from the disability discrimination rules. It may be the primary mechanism to arrange support in school (or pre-school) for a child who stammers. There is guidance at www.eani.org.uk/parents/special-educational-needs-sen. As at 2019, reforms were being implemented.

Schools: disability discrimination

This is covered in Part III Chapter 1 of SENDO, from Article 13. Important limitations compared with the rest of the UK include the specific exclusion of a duty on schools to provide auxiliary aids and services (below) and also, as with Northern Ireland disability discrimination law generally, that the scope of disability-related discrimination seems to be limited to direct discrimination because of the Malcolm case in 2008: see Types of discrimination are more limited in Northern Ireland. Even so it may be prudent to claim disability-related discrimination, in case. Some particular points:

• There is a duty to make reasonable adjustments which is particularly important (Articles 15(2) and 16). The school has a possible ‘justification’ defence under Article 15(2)(b) even where it would have been ‘reasonable’ to make an adjustment. The reasonable adjustment duty specifically excludes auxiliary aids and services, and altering physical features (Article 16(2)).
• This is supplemented by the Special Educational Needs regime as outlined above.
• Harassment is not specifically included, but may be unlawful as disability-related discrimination (below).
• There seems to be nothing saying that direct discrimination by schools cannot be ‘justified’ on a claim for ‘disability-related discrimination’. However because this claim is limited to much the same scope as direct discrimination, the school may find justification very difficult.
• A parent may claim to the Special Educational Needs and Disability Tribunal for Northern Ireland (justice-ni.gov.uk).

There is a 2006 SENDO code of practice for schools (pdf), which may need to be taken into account by courts. However this was issued before 2008 and so does not take into account the Malcolm decision on disability-related discrimination – see above.

(Disability-related discrimination extending beyond direct discrimination is only unavailable under Malcolm if that case extends to SENDO. However it may well extend to SENDO: see below on exams Competence standards: are the Northern Ireland rules ineffective?)

Higher and further education: disability discrimination

Universities and FE colleges are covered by Part III Chapter 2 of SENDO, from Article 27.

The main issue, as with Northern Ireland disability discrimination law generally, is that the scope of disability-related discrimination seems to be limited to direct discrimination, because of the Malcolm case in 2008: see Types of discrimination are more limited in Northern Ireland. Even so it may be prudent to claim disability-related discrimination, in case.

Otherwise the normal types of claim in Northern Ireland are available, as described on Types of discrimination are more limited in Northern Ireland, including the duty to make reasonable adjustments, harassment and direct discrimination.

A potential problem though is uncertainty over whether discriminatory competence standards in exams (below) are covered.

There is a Disability Discrimination Code of Practice for Further & Higher Education (pdf equalityni.org) dated January 2006 which may need to be taken into account by courts, and Changes to SENDO in relation to further and higher education (from 1 September 2006) (doc equalityni.org). However both of these were issued before 2008 and so do not take into account the Malcolm decision on disability-related discrimination – see above.

(Disability-related discrimination extending beyond direct discrimination is only unavailable under Malcolm if that case extends to SENDO. However it may well extend to SENDO: see below on exams Competence standards: are the Northern Ireland rules ineffective?)

Exams

Examples on exams

Examples of adjustments to exams as regards stammering are on my Oral exams page.

However that page summarises the Equality Act 2010 rules for the rest of the UK. As discussed below, it is not clear whether discriminatory competence standards are covered by Northern Ireland law: below Competence standards: are the Northern Ireland rules ineffective?

Three sets of rules on exams

There are three different sets of rules on exams in Northern Ireland which are broadly similar:

• University exams are covered by Part III Chapter 2 of SENDO, from Article 27. Claims go to the county court;
• GCSEs, A levels and other “relevant qualifications” of general qualification bodies are covered in Part III Chapter 3 of SENDO, from Article 34. A list of exams covered is in the Schedule to SR 2008/79, though there may be later changes). Claims go to the county court;
• Professional and trade exams are covered by the rules on ‘qualification bodies’ in ss.14A and 14B DDA 1995, which have to be read with s.3A. Claims go to the industrial tribunal.

As regards professional and trade exams, there is a 2005 Code of Practice Disability code of practice: Trade organisations and qualification bodies (pdf), which may need to be taken into account by courts. However this was issued before 2008 and so does not take into account the Malcolm decision on disability-related discrimination: see below.

How the rules are supposed to operate

Very broadly, how these rules are supposed to work in Northern Ireland is as follows:

• the reasonable adjustment duty applies to how a competence standard is assessed (I think this operates fine in Northern Ireland);
• the competence standard itself is not subject to adjustment under the reasonable adjustment duty. However the competence standard can be unlawful as ‘disability-related discrimination’ unless the exam body shows the standard is ‘justified’. The exam body needs to show that applying the competence standard is a proportionate means of achieving a legitimate aim, and that the standard is applied equally to people who do not have the particular disability. (The problem is there is some doubt whether this protection is effective in Northern Ireland).

This distinction between the competence standard and how it is assessed is explained more fully in the context of the Equality Act 2010 in Oral exams>What are the Equality Act rules on oral assessments?.

Example: Scientific knowledge on a university course is partly assessed by the student making a presentation on a topic. It may be a reasonable adjustment to assess this knowledge in writing instead (or other possible adjustments are available: see Oral exams).

However if an exam is testing French oral skills, the nature of the competence standard being assessed means it cannot be done in writing. Even so it will very often be reasonable to allow an adjustment to how the oral skills are assessed, such as extra time.

Competence standards: are the Northern Ireland rules ineffective?

Competence standards: Summary

The reasonable adjustment duty in Northern Ireland seems to apply alright to how a competence standard is assessed. However the reasonable adjustment duty does not apply to the issue of what competence standard can be assessed. It is supposed to be possible to challenge a competence standard as “disability-related discrimination” if the standard is not a proportionate means of achieving a legitimate aim. However the 2008 House of Lords decision in LB Lewisham v Malcolm cut down the scope of disability-related discrimination to much the same as direct discrimination, which is unlikely to be wide enough to apply to a competence standard.

However there are possible arguments (below) that Malcolm does not apply to competence standards, so that disability-related discrimination is wide enough to cover them. For example it can be argued that the specific justification defence applying to competence standards does not make sense if Malcolm applies. It can also be argued that EU disability discrimination law – which Northern Ireland must comply with even after Brexit – requires that at least for professional exams it should be possible to challenge competence standards.

Competence standards: The issue

The reasonable adjustment duty in Northern Ireland seems to apply alright to how a competence standard is assessed.

However it is unclear whether a competence standard which applies to everyone but unjustifiably puts disabled people at a disadvantage can itself be unlawful discrimination in Northern Ireland. The reasonable adjustment duty does not apply to a competence standard (Articles 30(1)(a) and 37(1)(a) SENDO, s.14B(1)(a) DDA 1995). The scheme of the legislation was that a claim against the competence standard itself could be made by way of disability-related discrimination. Broadly, if a competence standard put someone at a disadvantage for a reason related to the disability, the court would consider whether the standard was sufficiently justified. However in 2008 the House of Lords decision in LB Lewisham v Malcolm cut down ‘disability-related discrimination’ to be about the same as direct discrimination. If that case applies to these Northern Ireland rules, it will not normally be possible to show that a competence standard is even potentially disability-related discrimination, so the question whether it was justified will not arise.

Example: An oral exam might aim to test ‘fluency’ or ‘clarity of speech’. Use of these competence standards may well disadvantage a person who stammers. In Northern Ireland SENDO and (for professional exams) DDA 1995 lay down a special ‘justification’ test which competence standards must meet. However the test only becomes relevant as a defence to ‘disability-related discrimination’. If there is no disability-related discrimination (or direct discrimination which cannot be justified anyway), the disabled person has no claim. Therefore, if the House of Lords’ limited version of disability-related discrimination applies in this context, it may not be possible to even get to the stage of assessing whether a competence standard is ‘justified’.

Northern Ireland law does seem to require reasonable adjustments to how the competence standard is assessed. For example a longer time for the oral exam may be a reasonable adjustment (unless speed of speech is a competence standard being assessed).

A 2012 (but pre-Equality Act) example of an English case where the problem seems to have arisen but was not ruled on is Burke v College of Law. It was apparently assumed that if the time requirement for the professional law exam being considered in that case was a competence standard, no claim under the DDA would arise.

Does the Malcolm case apply to these Northern Ireland provisions? If there are any Northern Irish cases on this, I’m not aware of them. However I suggest below three or four arguments why Malcolm may not apply to the NI provisions, so that there is a right to challenge competence standards as disability-related discrimination:

1. Competence standards: special justification defence makes no sense if Malcolm applies

For all three sets of NI provisions on exams, I suggest that the special “justification” defence for competence standards is incompatible with the Malcolm interpretation.

Let’s take professional and trade exams as an example. DDA s.14A(3) says that in determining whether a competence standard is disability-related discrimination, the standard is justified if, but only if, the qualifications body can show that (a) the standard is, or would be, applied equally to persons who do not have his particular disability; and (b) its application is a proportionate means of achieving a legitimate aim. I suggest that paragraph (a) is very difficult to reconcile with a Malcolm interpretation of disability-related discrimination, resembling direct discrimination. Paragraph (a) only makes sense if it is possible for a competence standard applied equally to everyone (whether or not they have the relevant disability) to be disability-related discrimination.

The same argument applies to general qualifications bodies under para 34(5) of SENDO, and to universities under para 29(6) of SENDO.

The statutory provisions considered by Malcolm and (so far as I know) subsequent cases considering Malcolm were not subject to that particular justification defence. So the courts were not considering whether that defence might alter things. That particular defence applies only to competence standards.

2. Competence standards: Separate regulations apply to universities and general qualification bodies

As regards universities and general qualification bodies, an argument that Malcolm may not apply is the fact that the Northern Ireland rules defining disability-related discrimination are in the SENDO (Articles 29(1) and 35(1)), not in the DDA 1995 which the House of Lords in Malcolm was interpreting.

Argument 1 above, the important differences in paras 29(6) and 34(5) of SENDO, might be used against arguments that the wording in SENDO is pretty much the same as that in s.24(1) DDA which the House of Lords considered, and that before Equality Act 2010 rectified the position courts in the rest of the UK took the view that the House of Lords decision applied to similar definitions of disability-related discrimination elsewhere in the DDA, including schools (R (N) v London Borough of Dagenham and Barking Independent Appeal Panel) and employment (Aylott v Stockton on Tees Borough Council).

3. Competence standards: EU law may help

Another potential argument is that the EU Framework Employment Directive requires a claim to be available in respect of discriminatory competence standards in the case of professional or trade exams, and perhaps in the case of university or FE exams which have professional relevance.

This is especially so as Article 2(1) of the Northern Ireland Protocol to the Withdrawal Agreement requires Northern Ireland to comply with the Framework Employment Directive even after Brexit. What effect this should have on court decisions is unclear.

4. Intention of the legislation

It may well be possible to produce further evidence and arguments that applying Malcolm to competence standards would defeat the purpose of the legislation, including the intention of the legislators, by leaving competence standards not open to challenge when they were supposed to be covered by disability-related discrimination.