The Special Educational Needs and Disability Act 2001 (SENDA) amended the Disability Discrimination Act (DDA) 1995. The DDA placed requirements on employers and service providers not to discriminate against disabled people but did not include similar requirements for education. This legislation repeals the exemption of education from the Act and places a legal obligation on us all.
It is unlawful to discriminate against students with a disability. Governing Bodies of Institutions could be held legally liable for any failures to abide by the Act. Individuals could also face litigation.
The Act places an anticipatory duty on the University which means that it is not good enough to wait until a disabled person applies to a course or tries to use a service before thinking about what reasonable adjustments should be made.
What University provision does this include?
A draft code of practice, written by the Disability Rights Commission (DRC), lists the areas that are covered by the new legislation. These include:
- teaching including classes, lectures, seminars, practical sessions
- examinations and assessments
- arranging study abroad, work placements or fieldtrips
- research degrees and research facilities
- learning equipment and materials such as class handouts, laboratory equipment, computer facilities, classrooms, lecture theatres, labs etc.
- libraries, learning centres and their resources
- careers advice, training and careers libraries
- leisure, recreation, entertainment, catering and sports facilities
- health, counselling, chaplaincy, welfare services, residential accommodation and accommodation finding services
It should be noted that when similar legislation was introduced in Australia in 1993, 90% of the court cases related to learning and teaching. Cases related to discrimination in delivery of programmes, failure to make handouts and OHPs available in accessible formats, access to field trips and other practical activities and means of assessment. It is anticipated that litigation in the UK will follow a similar pattern.
Definition of disability
The DDA defines disability; ‘A disabled person is someone who has a physical or mental impairment, which has an effect on his or her ability to carry out normal day-to-day activities. That effect must be:
- substantial (that is, more than minor or trivial), and
- diverse, and
- long-term (that is, has lasted or is likely to last for at least 12 months or for the rest of the life of the person affected)’.
What is discrimination?
Discrimination is not only treating someone less favourably than someone else for a reason related to his/her disability without justification but also failing to make a reasonable adjustment.
What are reasonable adjustments?
The Act does not define what ‘reasonable steps’ an institution should take. However the purpose of the adjustment is to ensure that the disabled student is not placed at a ‘substantial disadvantage’. The DRC Draft Code contains many examples of the type of provision which may be considered reasonable. From these, a few examples have been given here:
- Staff are anticipating reasonable adjustment if they produce all their handouts in electronic form thus ensuring that they can easily be converted in to large print or put into other alternative formats. Other materials, for example handbooks or leaflets and forms, should also be made available electronically.
- For a student with a visual impairment who submits her assignments electronically, a reasonable adjustment is likely to be that the marker’s comments are returned electronically.
- A restaurant changes its menus daily. For that reason it considers it is not practicable to provide menus in alternative formats, such as braille. However, its staff spend a little time reading out the menu for blind customers and the restaurant ensures that there is a large print copy available. These are likely to be reasonable steps.
- the need to maintain academic standards
- the need to maintain other prescribed standards (eg. standards of an external validating body)
- the cost of taking a particular step and the financial resources available to the responsible body
- the extent to which it is practical to make a particular adjustment
- the DDA does not override existing health and safety legislation
- the relevant interests of other people including other students
Disclosure
The University is concerned that students with a disability are offered appropriate support and guidance to enable them to benefit fully from their time at University, both academically and socially. In order to achieve this, we will need to know if a student has a disability and applicants will therefore be asked to disclose this information at admission. The opportunity for students to disclose should also be available at other key points or on application for individual services, eg examinations, courses, careers, accommodation.
Confidentiality
A disabled student has a right to request that the existence or nature of his/her disability be treated as confidential.
In determining whether it is reasonable to make an adjustment the University must have regard to the extent that making the adjustment is consistent with a request for confidentiality. In some instances this might mean that reasonable adjustments have to be provided in an alternative way, in order to ensure confidentiality.
In some cases a confidentiality request might mean that a less satisfactory reasonable adjustment is provided or that no reasonable adjustment can be provided.
What happens if a student feels that ‘reasonable adjustment’ has not been made?
Students with a disability who believe they have been subject to discrimination and who want to raise a complaint with the University should be advised to use the University’s complaints procedure. However, they could decide to bring civil proceedings through a court. If successful, the student could be awarded compensation for any financial loss or injury to feelings.
The University’s approach
The University supports the social model of disability and is committed to equal opportunities. It recognises its responsibilities under the legislation and is committed to working in the best interests of people with a disability. The social model of disability focuses on the extent to which the environment, its services and facilities, are ‘enabling’ or ‘disabling’. This University aims to generate a more ‘enabling’ environment and to create a non-discriminatory culture, for the benefit of all University students, staff and visitors.
Your responsibilities
All STAFF have a responsibility to:
- ensure that you do not treat a disabled person less favourably than someone else for a reason relating to the person’s disability
- not indirectly discriminate against a student with a disability by failing to make a ‘reasonable adjustment’ when a disabled student is placed, or is likely to be placed, at a ‘substantial disadvantage’ in comparison with a person who is not disabled
- if a student discloses a disability to you, request their permission to forward this information to relevant colleagues
- if you teach, you need to give consideration to delivery methods, materials available in alternative formats, provision of course materials in advance and appropriate assessment. A good practice guide for accessible curricula is available at http://www.techdis.ac.uk/pdf/curricula.pdf
- disclose their disability to a member of the Disability Team in the Student Support Office so appropriate adjustments may be discussed
- apply to their funding organisation for assistance with costs related to their disability (further advice and guidance on who to approach is available from the Disability Team)
- whilst the Disability Team provide initial advice to all students it is the students responsibility to contact the Disability Team if they require individual advice at other times and to notify the Student Support Office of changes in their circumstances and/or requirements
- evidence of a disability or medical condition should forwarded to the Disability Team just prior to or at the start of the course or at the time of later diagnosis
- students using Student Support workers will supply detailed information of their requirements prior to the beginning of each term. They will attend appointments made with NMH’s in line with normal procedures
- students will attend pre-arranged appointments and tutorials or contact the Disability Team to cancel or rearrange if appropriate. Costs incurred due to non-attendance are to be borne by students
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