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Education: disability discrimination in Northern Ireland

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This page does not apply outside Northern Ireland.
Last updated 8th August 2019.

Summary

  • This page deals with discrimination by education providers and in exams.
  • The regime on Special Educational Needs (SEN) 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 not in DDA 1995 but in a 2005 Order.
  • 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 applies 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.

The 2005 Order

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. However the DDA definition of ‘disability’ applies to Part III of the Order (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 by Part III Chapter 1 of the 2005 Order, from Article 13. The main issue, as with NI 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. Some particular points:

  • there is a duty to make reasonable adjustments which is particularly important (Articles 15(2) and 16). Rather oddly the school has a possible ‘justification’ defence under Article 15(2)(b) even where it would have been ‘reasonable’ to make an adjustment;
  • in any event there is also the Special Educational Needs regime as outlined above;
  • harassment is not specifically included, but may be unlawful as disability-related discrimination (below);
  • for schools there seems to be nothing saying that direct discrimination 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.

(Disability-related discrimination extending beyond direct discrimination is only unavailable under Malcolm if that case extends to the 2005 Order. However this seems very possible: 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 the 2005 Order, from Article 27.

The main issue, as with NI 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 that there seems to be serious uncertainty on whether discriminatory competence standards in exams (below) are covered.

There is a Disability Discrimination Code of Practice for Further & Higher Education (pdf) 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). However both of these were issued before 2008 and so do not take into account the Malcolm decision on disability-related discrimination.

(Disability-related discrimination extending beyond direct discrimination is only unavailable under Malcolm if that case extends to the 2005 Order. However this seems very possible. See below on exams Competence standards: are the Northern Ireland rules ineffective?)

Exams

Examples on exams

Examples of adjustments to exams for 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

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

  • University exams are covered by Part III Chapter 2 of the 2005 Order, 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 the 2005 Order, from Article 34. A list of exams covered is in the Schedule to SR 2008/79, though there may be 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 the reasonable adjustment duty. However the 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 this may not operate 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 on 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 such as extra time.

Competence standards: are the Northern Ireland rules ineffective?

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) 2005 Order, s.14B(1)(a) DDA 1995). The scheme of the legislation was that a claim against the competence standard could be made by way of disability-related discrimination. Broadly, if a competence standard put somone at a disadvantage for a reason related to the disability, the court would consider whether the standard was sufficiently ustified. 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 completence standard was even potentially disability-related discrimination, so the question whether the standard 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 the 2005 Order and (for professional exams) DDA 1995 lays 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).

Unless and until Northern Irish law is amended, perhaps the strongest potential argument to overcome the problem 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 university or FE exams which have professional relevance.

Apart from EU law, 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. As regards universities and general qualification bodies, one argument Malcolm may not apply is that the Northern Ireland rules defining disability-related discrimination are in the 2005 Order (Articles 29(1) and 35(1)), and not in DDA 1995 which the House of Lords was interpreting. However the wording in the 2005 Order is pretty much the same as that in s.24(1) DDA which the House of Lords was considering. Also, 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).

As regards the Northern Ireland rules on professional and trade exams, these are part of the employment provisions of DDA 1995 Therefore the Aylott case would be authority that Malcolm applies to them. A 2012 (but pre-Equality Act) example of a case in England where the problem seems to have arisen 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. However as mentioned above, particularly for trade and professional exams it might be argued EU law requires there to be protection against discrimination.