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Koci v University College London

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Last updated 18th April, 2024.

The clamant applied for admission to a postgraduate law degree course. He was rejected as not meeting the entry requirements. He argued that his previous exam results had been affected by his disability. The court held his claim for breach of the reasonable adjustment duty could not proceed, as the university’s entrance requirements were “competence standards” excluded from this duty. However, his claim under s.15 EqA could proceed to a full trial. My comments are below.

2014, County Court. [2014] All ER (D) 232 (Jan)

Facts

The claimant applied to a university, UCL, for an LLM degree programme. An LLM is a postgraduate law degree.

The entry requirements stated on UCL’s website were:

“In deciding whether to admit an applicant, the Faculty has regard to factors such as academic ability and intellectual maturity. We require a good 2:1 degree with some evidence of first class ability, in a qualifying law degree from a UK university or an overseas qualification of an equivalent standard. Graduates with an upper second-class qualifying law degree and substantial relevant experience are also welcome to apply. Graduates whose first degree is not law will be considered for admission if they have a good 2:1 with evidence of 1st class ability plus a good Merit pass in the Common Professional Examination (Graduate Diploma in Law) recognised by the UK professional bodies.” [§4]

As stated in his application for the LLM, the claimant’s qualifications included a 2:2 in a non-law degree from the London School of Economics (LSE), and an LLB with upper second class honours from the College of Law “awarded on the basis of having completed the BVC and GDL”. The GDL was the Graduate Diploma in Law, a law conversion course in which he achieved a Commendation. The BVC was the Bar Vocational Course, in which he achieved a “Very Competent” overall. [§2]

The claimant told UCL that his 2:2 degree from LSE had “been affected by an untreated neurological condition/disability”. Before beginning his legal studies and for a period after, he had been suffering from an undiagnosed neurological condition that severely affected his ability to undertake sustained study. This had, he said, left him with a degree result and diploma marks that did not reflect his academic ability. It was only after he began the Bar course (BVC?) that he was able to undertake solid academic work. [§3]

UCL rejected the claimant’s LLM application on the basis that his academic performance did not meet its entry requirements [§4]. It confirmed this on reviewing his application, saying that it had taken into account his disability, but considered that his GDL scores did not compensate for his first degree [§5]. UCL later said his BVC was a practical course blending vocational and academic study, with the result not enough to warrant an offer being made. Also his employment experience was nowhere near the standard required to offset the below-standard academic performance. UCL also rejected a subsequent complaint. [§6-7]

The claimant brought claims for failure to make reasonable adjustments (s.20 EqA), and for discrimination arising from disability (s.15 EqA). UCL applied for a strike-out of these claims, or for summary judgment against the claimant (so without a full trial), on the ground that the claims must fail because UCL’s rejection of the claimant resulted from its application of a competence standard. [§9]

Held: His claim for breach of the reasonable adjustment duty could not proceed, as the university’s entrance requirements were “competence standards” excluded from that duty. However, his claim under s.15 EqA could proceed to a full trial.

Reasonable adjustment duty

UCL pointed to EqA Sch 13 4(2)(3) which provides that “a provision, criterion or practice does not include the application of a competence standard”, so the application of a competence standard is not subject to the reasonable adjustment duty. [On this exclusion of competence standards, see Oral assessments at university: the rules>Reasonable adjustments: Exception for “competence standards”.]

UCL said the claimant’s case was based on the argument that UCL should have made reasonable adjustments by waiving the entrance requirements for him. However, it argued, the entrance requirements were clearly a competence standard which could not be caught by the reasonable adjustment duty. [§12]

Exception for competence standards applies to admission as well as qualifications

The claimant argued that, broadly, this exclusion of competence standards from the reasonable adjustment duty applies only to conferring a qualification, not to admission of a student to a course. However the court rejected this argument. The exclusion applied to all relevant matters in Sch 13 para 3(4), not just (d) and (e) as argued by the claimant. [§16, 28-52]

Was his complaint about the “application” of the competence standard?

This exception from the reasonable adjustment duty applies to the “application” of a competence standard, not to the process whereby a competence standard is assessed. [Oral assessments at university: the rules>Reasonable adjustments: Exception for “competence standards”.]

The claimant argued that his reasonable adjustment claim was not limited to the “application” of the competence standard, but extended to the judgment of UCL in how to apply that standard – such as whether he met the standard in other ways, eg by getting a 2:1 LLB from the College of Law – and when considering his complaints. He said UCL had “failed to make reasonable adjustments in assessing how to apply its entry requirements to the Claimant’s circumstances”.

The court disagreed. It decided that his reasonable adjustment claim was that UCL failed in a duty to make reasonable adjustments in the application of a competence standard. His claim must therefore fail. The claimant’s argument was just another way of saying that UCL made no adjustments in deciding whether or not to apply the strict competence standard it applied to its other applicants, or whether to relax them in some way by reference to other qualifications or other competence the claimant had sought to demonstrate. [§54-55]

The court said the position in the present case was very similar to the facts in Islam v Bar Standards Board, which held there was no obligation on the BSB to set a lower standard of qualification for entry to the second vocational stage for the disabled. The competence standard had to apply to all who applied for admission to the vocational stage in order to ensure that the requisite standards of competence of the profession were maintained. The judge in Islam had gone on to hold that the BSB could not make any reasonable adjustments in the examinations process carried out by the academic institutions under which the applicant sat the examination for the academic stage. The BSB had no control over the examination process of such a body. [§56-57]

Similarly in the present case, UCL could not make any reasonable adjustments in the examination process which led to the claimant obtaining a 2:2 at the LSE and a Competent grade for the GDL, as UCL had no control over these processes. There was no obligation on UCL to set a lower standard for the claimant as a disabled person, as there was no duty to make a reasonable adjustment in the application of a competence standard. [§57, 55]

Conclusion on reasonable adjustments

Since the duty to make reasonable adjustments was excluded by EqA Sch 13 4(2)(3) (which excludes the application of a competence standard), the case should not proceed to a trial on the reasonable adjustment claim. [§58-59]

S.15 claim could proceed

(S.15 EqA can apply if a university treats a disabled person unfavourably “because of something arising in consequence of” their disability, unless the university shows the unfavourable treatment was a “proportionate means of achieving a legitimate aim” (justification). Another defence, where the university did not have actual or constructive knowledge of the disability, was not relevant in this case. See Oral assessments at university: the rules>Discrimination arising from disability.)

On whether UCL had shown that rejecting him for the course was justified, the claimant said UCL was given the opportunity to provide evidence that the treatment of him was a proportionate means of achieving a legitimate aim but UCL declined to provide this. He said UCL had relied on the circular argument that “the entry requirements of the LLM programme are a proportionate means of achieving the legitimate aim of ensuring that those offered admission meet the academic standards expected of programme entrants”. The inferences to be drawn from UCL’s failure to answer the claimant’s questions, or from UCL giving evasive answers, should more properly be considered at a full trial, argued the claimant. [§20-21]

UCL argued that the claim under s.15 EqA was a mirror image of the reasonable adjustment claim under s.20, and so must fail. It said that there would be no purpose in exempting competence standards from the reach of s.20 in the context of higher education if those subject to such standards could instead bring their claims under s.15. Accordingly s.15 should be understood to mean that the university only has to show that the competence standard itself is a proportionate means of achieving a legitimate aim, not that applying the standard to the claimant meets that test. [§14, 68]

The court disagreed with UCL’s argument. The court said the focus of s.15 is on the unfavourable treatment of the disabled person, here the rejection of the claimant’s application to enter the LLM programme. The focus is not on the provision, criterion or standard applied by the education provider, as in the case of indirect discrimination. Therefore the court would need to have regard to whether the rejection of the claimant’s application (on the basis that he did not meet its competence standard) was justified. This, said the court, was a wider consideration than considering whether the competence standard itself was justified. [§71]

The court pointed to the EHRC’s Technical guidance on further and higher education, which said that even where an education provider had complied with the reasonable adjustment duty, the provider may still subject a disabled person to unlawful discrimination contrary to s.15. Also UCL acknowledged that s.15 made no express exception in relation to competence standards. [§72-74]

The court said the reasonable adjustment duty is a separate duty from s.15. Even if there was no duty to make a reasonable adjustment by lowering a competence standard, it was possible that UCL’s unfavourable treatment of the claimant may have gone beyond simply applying the competence standard, and that this treatment could not be justified. That must be determined by the court on an objective test based on all the evidence, not just by the university saying it applied the competence standard. The court noted that the judge in Islam v Bar Standards Board held that the BSB should have examined, when exercising its discretion, the evidence of reasonable adjustments made by the educational establishments as it must have regard, as a public authority, to the need to eliminate discrimination under s.149 EqA. That was one of the factors the court considered in that case. [§75]

The court also rejected an argument by UCL (based on Clarke v University of Lincolnshire & Humberside (bailii.org), Court of Appeal, 2000) that the claim should not proceed because issues of academic judgment were not justiciable in the courts. [§77-81]

Therefore the claim under s.15 should not be struck out. Also UCL’s application for summary judgment failed as regards s.15, since the claimant had shown some prospect of succeeding on this claim, and this could only be determined by the court hearing the evidence. [§82]

My comments

This is a County Court decision, and so not an appeal decision binding lower courts.

The decision on reasonable adjustments seems to me fair enough so far as it goes. However, the court could perhaps have examined further – had the point been argued by the claimant – what the competence standard really was in this case. Internal university documents might have clarified this. Eg was there some more basic single standard applicable to everyone which UCL were in fact looking for, with the description on the website really giving ways of evidencing it? If so, that might arguably be the “competence standard” within the EqA, and there might have been more scope for the court to review the university’s assessment of whether the claimant met it.

It seems right that the s.15 claim was allowed to proceed to a trial, but I find some of the court’s reasoning unclear. Even if, as the university argued, the university only had to show that the competence standard itself is a proportionate means of achieving a legitimate aim under s.15, that issue should presumably have gone to a full trial. Eg did the competence standard sufficiently take into account that past exam results may under-assess a disabled person’s current abilities? In any event, the court held the justification test under s.15 went further than that.

I do think tricky issues arise from the university’s argument that there would be no purpose in exempting competence standards from s.20 (reasonable adjustments) if those subject to such standards could instead bring their claims under s.15. See my discussion at Oral assessments at university: the rules>Can s.15 justification test require exceptions to a competence standard? The County Court seems to imply (in its reference to Islam in §75) that in assessing justification under s.15, it is relevant to consider how far reasonable adjustments were made by the previous educational establishments. At least from a common sense point of view, this makes some sense if (see next paragraph) the competence standard as seen as having a 2:1 degree, rather than being academically of that standard.

Note that in Islam the competence standard seems to have been whether, since he did not actually have a 2:2 degree, there was clear evidence that he was academically of second class quality, whereas here – at least based on the website – there was no explicit competence standard of showing oneself to be at a 2:1 level (other than through a degree). Where a competence standard is held to be that someone must have a certain class of degree (rather than just show themself to be at that level academically as in Islam), there may be less scope for reasonable adjustments, though also it may be more difficult to justify that competence standard.

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