DEMOS Project

Online Materials for Staff Disability Awareness

The Special Educational Needs and Disability Act: Guidance for Teaching Staff

Date of completion: 22nd November 2002.
Author: Jenni Knox, Policy Officer, Skill: National Bureau for Students with Disabilities.
Published by: Demos Project.
Responsible Organisation: Manchester Metropolitan University.
Contact: Learning Support Unit, All Saints, Manchester, M15 6BH.

Table of Contents


Aims

Learning Outcomes

At the end of this module you will be able to:

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Introduction to the Disability Discrimination Act 1995

What is the Disability Discrimination Act?

The Disability Discrimination Act 1995 (http://www.legislation.hmso.gov.uk/acts/acts1995/Ukpga_19950050_en_1.htm [External link: Open in new browser window] ) made it unlawful to discriminate against disabled people in the areas of employment (defined in Part 2 of the Act) and the provision of goods and services (defined in Part 3). The Special Educational Needs and Disability Act 2001 (SENDA) has now become Part 4 of the Disability Discrimination Act (DDA), extending the DDA to include education.

What does 'disability' actually mean?

Part 1 of the Act concerns the definition of disability. Under the DDA disability is defined as 'a physical or mental impairment which has an effect on their normal day to day activities.' That effect must be:

[More definitions of diability can be found in the Awareness module.]

The effect of any treatment, medicine or artificial aid, which alleviates the effects of the impairment, but not the impairment itself, is ignored under this definition with the sole exception of glasses or contact lenses.

Example

A court deciding if a person with epilepsy is disabled would not take into consideration any medication they might be taking to control their seizures.

'Physical or mental impairments' include:

'Normal day to day activities' include:

If a person has a condition or impairment which comes and goes over a period of time, they are still considered disabled during periods of remission if the impairment remains and if reoccurrence is likely to take place 12 months or more after the initial occurrence.

For more information on the DDA itself, a summary of the rights and duties under the DDA is available here:
http://www.disability.gov.uk/dda/index.html [External link: Open in new browser window] .

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Introduction to DDA Part 4: Special Educational Needs and Disability Act (2001)

What is the new disability law that everyone is talking about?

The Special Educational Needs and Disability Act (2001) (SENDA) amended Part 4 of the DDA to include education. Therefore, SENDA has now become Part 4 of the DDA.

The new Part 4 of the DDA will be implemented in 3 main stages:

Who, or what, is a 'responsible body'?

The post-16 sections of the Act apply to all higher and further educational institutions and to LEA post-16 provision. The Act also applies to basic adult education in Scotland.

Those providing this provision are termed 'responsible bodies' and are accountable for the actions of their employees and their agents (e.g. contracted-out services such as accommodation or catering and contracted-in services such as part-time lecturers).

Can I be held personally responsible and taken to court?

The governing body or board of management of the institution will ultimately be responsible for ensuring compliance with the Act. However, there is provision for individual liability under the Act if an employee or agent has been deemed to have 'aided an unlawful act' or to have 'made a recklessly false statement'. This can happen, even if the responsible body itself has a defence.

Example

An institution may provide disability awareness training to all its employees. If the institution makes training mandatory and subsequently discrimination occurs, the institution may have a defence under the Act but the individual may not, being deemed to have 'knowingly aided an unlawful act'.

Who does the new law apply to?

Students, applicants and enquirers are all covered under the Act. Disabled students come under the Act no matter what their status: part-time, overseas, evening class, postgraduate, undergraduate, distance learning, etc.
Therefore, under the Act, the definition of disability is not related to being registered disabled nor to a student's eligibility for a Disabled Students' Allowance [?].
Even if a student attends only one of your modules at the university for 3 hours per week, they are covered by the Act.

The Act applies to all services 'provided wholly or mainly for students' including enrolment, admissions, catering, accommodation, careers services, chaplaincy, teaching and learning, graduation, etc.

Is there any guidance on the new law?

The Disability Rights Commission has published a Post-16 Code of Practice (http://www.drc-gb.org/drc/Campaigns/Page431.asp [External link: Open in new browser window] ), which explains the Act in detail and provides useful examples to ensure compliance. You are encouraged to follow the Code to help prevent litigation.

Reflection

You may want to think about what policies and procedures your institution has put in place when working with disabled students. For example:

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Disability Discrimination

What exactly is disability discrimination?

The Act makes it unlawful to discriminate against disabled students and applicants in admissions, enrolments, student services and exclusions. The Act also places an anticipatory duty, which means that institutions should be anticipating what a disabled student might require. Lack of notice will not be a defence against a claim.

Example

Institutions should have available a large-print or on-line prospectus should this be requested.

Discrimination can take two forms:

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Less Favourable Treatment

How do I know if I'm treating someone less favourably?

A responsible body discriminates against a disabled person if they treat them less favourably for a reason relating to their disability in comparison to how it treats other people. To prove discrimination, a disabled person only has to show that others would have been treated better, not that they actually have been treated better.

Example

If you have a deaf student in your class who is lip-reading and you speak while facing the white board, they cannot lip-read and therefore miss out on part of the lecture. This is treating the student less favourably compared to other students in the class.

Are there any circumstances in which I am justified in treating someone less favourably?

The Act does make provision for justifications for less favourable treatment in certain circumstances including maintaining academic standards and if there are reasons which are material and substantial (i.e.not trivial) to the individual case.

However, the onus will be on you to prove that the action was justified in individual circumstances and that the justification would still be valid even after the reasonable adjustment had been made. The justifications for less favourable treatment should not be used spuriously.

Example

If you reject a suitably qualified wheelchair user who is applying for a field-based course, you would have to show that there are core elements to that particular course that the individual would not be able to do.

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Making a Reasonable Adjustment

What is a reasonable adjustment?

A responsible body must take reasonable steps to ensure that it does not place a disabled person at a substantial disadvantage compared to a non-disabled person. A substantial disadvantage is one that entails time, inconvenience, effort or discomfort compared to other people or students and which is more than minor or trivial.

Example

In the previous example with the deaf student, the reasonable adjustment may be ensuring that when you are giving the lecture, you are facing the class.

A reasonable adjustment might be any action that helps alleviate a substantial disadvantage. Making a reasonable adjustment might involve changing procedures, adapting your curriculum, providing additional services (e.g. materials in large print), or altering the physical environment.

How do I know if I'm being reasonable?

The Act does not define exactly what reasonable adjustments are, as they will relate to the type and nature of the service being provided. However, institutions are only expected to do what is 'reasonable'.

In determining reasonableness, you have to take into account the effect on the individual disabled person, not on disabled people as a whole. You can also give consideration to factors such as academic standards, cost, practicality, health & safety, relevant interests of others and grants or loans available to the student.

However, as with justifications, using such factors to define reasonableness should not be done spuriously.

Example

An institution rejects a visually impaired student applying to do a practical chemistry course on the grounds of health and safety. In order to justify this decision, they should undertake a risk assessment to show whether or not there would be a genuine health and safety risk. They may not be able to justify a broad generalisation such as rejecting all visually impaired students for that course.

Edinburgh University has produced some useful guidelines on reasonable adjustments ( http://www.disability-office.ed.ac.uk/dda.html [External link: Open in new browser window] ).

Why is there an anticipatory duty?

The duty to make reasonable adjustments is an anticipatory duty which means that institutions cannot just wait until a person with a specific disability applies for a specific course before making an adjustment. The institution should anticipate what may need to be done and make adjustments accordingly. This is an evolving duty in order that the base line for 'reasonable adjustments' is continually raised over time to ensure that institutions continue to improve their provision over time.

Remember that this year's anticipatory duty is next year's reasonable adjustment.

Reflection

The issue of maintaining academic standards in relation to discrimination can be complex. However, in order to ensure that you are not discriminating against a disabled student, you need to reflect on what the learning outcomes and the core competencies for your course actually are.

Think about the following situations and try to apply similar situations to your course:

A student with ME asks if they can sit a 3-hour exam in two 1.5 hour sittings with a short rest in between.
Do you agree to this request?
Think about what the exam is actually testing: Is it their knowledge of the subject or is it their ability to take a 3 hour exam?

A deaf student asks you to face the class when speaking as she is lip-reading and cannot hear you when you face the board and speak.
Are you going to modify your teaching practice?
Think about whether your course is designed to test her ability to understand the material that you are presenting or her ability to take notes while you speak?

A blind student applies to do a forensic science course.
What are the core components of the course?
Is visual analysis of chemicals a core component?
If yes, can this student see sufficiently well to undertake this part of the course?
If no, then you may have a substantial justification for not accepting him onto this course.

If you reflect on your course and are unsure about whether or not a reasonable adjustment can be made, talk to your disability officer who will be able to advise you, or consult Skill (http://www.skill.org.uk/ [External link: Open in new browser window] ) or the DRC (http://www.drc-gb.org/drc/default.asp [External link: Open in new browser window] ).

The DRC have produced a range of good practice guides which provide further information on strategies for complying with the Act and reasonable adjustments which could be made. These good practice guides are available for:

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What is discrimination? Self-test

(Answers follow below)

Question 1

A dyslexic student applies to do an English course at a university. The university admissions tutor asks all dyslexic students to submit a hand-written piece of their schoolwork as part of their application. Has the student been treated less favourably?

Question 2

A wheelchair user applies to do a course in Law at the university. He is offered a conditional place but is eventually turned down as he does not reach the required entry standard. Might this be unlawful?

Question 3

A blind student approaches a university through clearing and requests some course information in Braille. The university takes two weeks to braille the prospectus for the student and, as a result, when the student applies to do a course, she is told that there are no more places at the university. Is this discriminatory?

Question 4

A student with ME did not disclose his disability when he applied to the institution, although he was provided with several appropriate opportunities to do so. At the end of his first year on the course, a month before he is due to sit his end-of-year exams, he asks his tutor for extra time in exams so that he can have rest breaks, mentioning his ME as the reason why. Should the tutor agree to his request?

Answers

...to Question 1:

The institution is treating the disabled student less favourably by asking them to submit additional work. In the case of dyslexic students, requiring hand-written work as part of an assessment process may also be discriminatory if a reasonable adjustment (e.g. submitting a computer-typed piece) is not made when requested.

...to Question 2:

The rejection is connected to the academic standard and not to his disability.

...to Question 3:

It may be considered discriminatory because the student was placed at a substantial disadvantage by not having the information at the same time as other students. The university should have anticipated that a Braille document may be requested during clearing when time is of the essence. If the student had not applied through clearing but had applied in the normal way, a two-week delay may not have had the same effect as the two-week delay during clearing.

...to Question 4:

The tutor should agree but should also request medical or other evidence to support the student's claim.

Additional info: The tutor should record this in the appropriate place and make sure that they then explain the university's policy on extra time in exams to the student if they have one. They should also seek the students' permission to disclose the disability to other relevant people in the university, such as the disability officer and the other tutors so that support can be put in place for the following year.

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Disclosure and Confidentiality

A landmark decision by the Courts under Part 2 DDA (employment) was the case of HJ Heinz Co Ltd vs. Kenrick (2000). The court found in favour of the employee as he had been treated less favourably because of his disability even though the employer had no direct knowledge of his disability [1]. Essentially, the employer had not taken reasonable steps to find out about the employee's disability.

Can I be guilty of discrimination even if I didn't know someone is disabled?

Under the DDA, for a responsible body to discriminate against a disabled student, they must know that a student is disabled. The law says that if a responsible body does not know or could not reasonably have known that a student was disabled, discrimination cannot take place.

However, in practice, this means that institutions must take reasonable steps to find out if a student is disabled in order to demonstrate that 'they could not reasonably know'.

In general, it is in a student's best interests to disclose their disability as they will receive more support and staff will better understand their needs if they do. For example, reasonable adjustments can be made to teaching, learning or their exams.

N.B. You may find that as part of your institution's anticipatory duty, some reasonable adjustments have already been made as a matter of course and some students do not need to tell the institution that they are disabled.

When does my institution 'know' that a student is disabled?

Even when a disabled student tells just one student in the institution, it is then deemed to know about the disability, unless the student requests confidentiality.

Example

A student declares a disability on her application form to the University but does not receive any support or adaptations when she is enrolled. The failure to offer her the necessary adaptations is then likely to be unlawful.

Example

An applicant does not declare his disability on his application form, but phones up to confirm his selection interview using the university's Textphone line. The responsible body may then be deemed to have known that he had a disability (i.e. he was deaf or hearing impaired) given that he used Textphone.

How do I find out if a student is disabled?

You must take reasonable steps to ensure that you find out about a student's disability. These reasonable steps may include asking:

Disabled students are not always happy to disclose disability for various reasons. However, students are more likely to identify themselves as being disabled if there is an open and honest culture about disability in the institution. This may include being able to disclose in a confidential setting or reassurance that the information will be treated appropriately. Asking all disabled students to put their hands up in the first lecture of the year would not be considered reasonable!

You can refer to the DfES Guide 'Finding out about People's Disabilities' (http://www.lifelonglearning.co.uk/ [External link: Open in new browser window] ) for more information.

What do I need to do if I find out a student is disabled?

Disclosure Policy

Institutions should have in place procedures (often called a disclosure policy) for what you should do once you find out that one of your students is disabled.

A typical procedure will cover:

It is important that you are aware of your institution's disclosure policy. If your institution does not have one and a student tells you that they are disabled, you should talk to your institution's disability officer (with the student's permission) about what steps to take next.

What happens if a student is disabled but they don't want anyone to know?

Confidentiality

It is the student's right to decide whether or not they want to tell the institution that they are disabled. Some students will not disclose during the admissions process for fear of discrimination, but once they have started the course, will then decide that they need additional support.

If a disabled student does not disclose their disability and the institution has taken reasonable steps to find out, then it is likely that few reasonable adjustments can be made. It may be that a disabled student benefits from the anticipatory nature of your reasonable adjustments in any case - for example if you post your handouts on the intranet for the benefit of your visually impaired students, other students may download them and use them without having to tell you about their specific disabilities.

However, there may be situations where a disabled student tells you in confidence that they have a disability. In these cases, you will not be able to pass that information on to the appropriate person. If a disabled student requests confidentiality, it means that there may be either a less satisfactory reasonable adjustment or no adjustment at all. This should be explained to the student at the time.

Example

The visually impaired student in the previous example may tell you that about their disability but, as they can download your handouts from the intranet, they do not want anyone else to know about their disability. You should explain that you will keep this information confidential but that other reasonable adjustments may not be made - for example there may be times that they could benefit from having a note taker in class with them if they told the Disability Office and arranged this with them.

What about the Data Protection Act?

To comply with both the Disability Discrimination Act and the Data Protection Act, you should ensure that when a student identifies themselves as being disabled you should:

References:

[1] From 'Monitoring the Disability Discrimination Act 1995',
[PDF file: http://www.incomesdata.co.uk/brief/dda/2reportb.pdf [External link: Open in new browser window] ]
IDS Ltd (2000), HMSO.

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Other important issues in the Act

The DDA Part 4 offers additional protection which you need to be aware of.

What is Victimisation and can I be victimised?

Victimisation happens whether or not a person is disabled as it occurs when someone is discriminated against (treated less favourably) because they have:

Example

A non-disabled student acts as a witness in a complaint by a disabled student against a tutor. The tutor then refuses to mark the non-disabled student's work. This is likely to be victimisation.

Am I right in thinking we no longer have to produce disability statements?

Disability statements

The Act has removed the requirement for institutions to produce a disability statement outlining their provisions for disabled students. It may, however, be a reasonable anticipatory duty for an institution to provide information for disabled students about its provision.

Does the Act take precedence over other legislation?

General precedence

Nothing in the Act takes precedence over other legislation or any other statutory duties which responsible bodies may have. This includes the Data Protection Act (1998), Human Rights Act (1998), Race Relations Act (1976) and Amendment (2000), Sex Discrimination Act (1975), Health & Safety at Work Act (1974), The Fire Precautions Act (1971), etc.

Can I ask a student to sign an agreement negating our responsibility for reasonable adjustments?

Any term of agreement which requires a disabled student to do something that would be unlawful under the Act, limit the operation of the Act or prevent someone from making a claim under the Act is not legally binding.

Example

If you ask a disabled student to sign a disclaimer saying that the institution is not responsible for making adjustments to a field trip because of their disability, this disclaimer will not be legally binding.

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Redress under the Act

What action can a student take against me or against the institution?

If a disabled student believes that they have been discriminated against, they may bring civil proceedings either against the responsible body, the individual or both under the Act in a county court (England & Wales) or a Sheriff Court (Scotland). They must bring court action within six months of the alleged discrimination or of the alleged last discriminatory act, where discrimination took place over a period of time.

Does a student have to follow the institutions' complaints procedure first?

Students may want to make informal complaints in the first instance and institutions should ensure that they have written complaints procedures which will help the dispute be resolved quickly. Students do not have to raise an internal complaint before they initiate court proceedings, although this may be taken into consideration by the court.

What is the Conciliation Service?

The Disability Rights Commission (http://www.drc-gb.org/ [External link: Open in new browser window] ) has set up a Conciliation Service, run by Mediation UK (http://www.mediationuk.org.uk/ [External link: Open in new browser window] ), which will be an independent conciliation service for disputes. Conciliation will be made available locally and disputes may be referred if both parties agree. A settlement cannot be imposed on either party.

A complainant may agree to conciliation but still pursue their case through the courts. The time limit for court action is extended by two months if the conciliation process is used.

What may be awarded by the courts?

If the case goes to court, the court can award compensation including financial loss and injury to feelings. The disabled student may also seek an injunction (England & Wales) or interdict (Scotland) to prevent the institution repeating the discriminatory act.

A disabled person can bring a case under more than one section of the Act and there is no defence against that section being used - i.e. institutions cannot argue that since it has been brought under Part 2 rather than Part 4 there is no claim to answer.

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Final Test

As a final step in ensuring you know everything you need to know about the DDA Part 4, you should try this quiz based on the Skill's 'Disability Discrimination Act Part 4 - how clued up are you?'. Good Luck!

Start quiz

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Additional resources - Web links

The Disability Discrimination Act 1995
http://www.legislation.hmso.gov.uk/
acts/acts1995/Ukpga_19950050_en_1.htm
Summary of the rights and duties under the DDA
http://www.disability.gov.uk/dda/index.html
Post-16 Code of Practice
published by the Disability Rights Commission.
explains the Act in detail and provides useful examples to ensure compliance.
http://www.drc-gb.org/drc/Campaigns/Page431.asp
Finding out about people's disabilities
DfES Guide
http://www.lifelonglearning.co.uk/
Monitoring the Disability Discrimination Act 1995
IDS Ltd (2000), HMSO
http://www.incomesdata.co.uk/brief/dda/2reportb.pdf (PDF file)

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