If you are a disabled student or prospective student and think you have been discriminated against, you may be able to challenge this under the Disability Discrimination Act 1995 (DDA).
The DDA gives disabled students rights in their access to colleges, universities and other providers of Post-16 education. Your rights in education have been introduced in three stages:
- Since 1 September 2002 it has been against the law for education providers to treat you less favourably for a reason related to your disability or to fail to make reasonable adjustments to prevent you being placed at a substantial disadvantage.
- Since 1 September 2003 education providers have had to provide auxiliary aids and services as part of the reasonable adjustments duty
- Since 1 September 2005 education providers have had to make reasonable adjustments to their premises where there are physical features that are placing you at a substantial disadvantage.
There is a Code of Practice for Post-16 education providers about the DDA. It is taken into account by the courts and it guides disabled people and service providers on how reasonable adjustments should be made.
How do I know if I have a disability under the DDA?
The DDA defines disability as a physical or mental impairment, which has a substantial and long-term adverse affect on a person’s ability to carry out normal day-to-day activities.
This would include many long-term or fluctuating health conditions. For example, if you have problems with mobility, seeing or hearing, a learning disability, mental illness, epilepsy, Aids, asthma, diabetes or a condition that gets progressively worse such as multiple sclerosis, then you may be covered under the DDA.
How can the DDA help me?
It is against the law for providers of post-16 education and related services to discriminate against you in three areas:
- teaching and learning and other student services which are provided wholly or mainly for students - including student outings, leisure facilities and canteen, libraries and learning centres, work experience and student accommodation
- by excluding you from the course or institution.
Is my education provider covered by the Post-16 duties in Part 4 of the DDA?
The duties cover:
- Universities and other institutions in the higher education sector
- Colleges of further education and other institutions in the further education sector
- local education authorities or education authorities securing further education, including adult and community education
- schools providing further education for adults
- local education authorities providing the statutory youth service and, in Scotland, education authorities securing community education
- some other specific institutions listed in regulations.
If your education provider is not included in this list of institutions then it does not have duties under the Post-16 Duties of Part 4 of the DDA. Schools providing sixth form education are covered by the schools duties under Part 4. Further information is available from the Helpline.
What does 'discriminate' mean?
According to the DDA there are two main types of disability discrimination:
- Unjustified less favourable treatment for a reason related to a person’s disability and
- Unjustified failure to take reasonable steps.
Less favourable treatment
An education provider discriminates against a disabled person if it treats him or her less favourably than other people (for a reason related to his or her disability) and cannot justify the treatment.
The DDA says that less favourable treatment may be unlawful in the following areas:
- arrangements for determining admission to an institution
- the terms on which admission is offered
- refusal or deliberate omission of an application for admission
- teaching and learning and other student services provided by an institution
To show you have been treated less favourably for a reason related to your disability you need to show:
- what the treatment is
- what the reason for the treatment is
- that the reason is related to your disability
- that someone to whom the reason does not apply was not/would not be treated that way.
- a student with dyslexia applies to do a degree in English and is told by a university that it does not accept dyslexic students on English degree, other students with similar qualifications are offered places on the course
- a student with a mobility impairment is told she cannot take part in a recreational trip because of her impairment
- a student with a known history of bi-polar disorder is excluded from college because staff fears he may become disruptive in the future. There is no evidence to substantiate this fear and he has not broken any of the college regulations.
Failure to take a reasonable step
Education providers also discriminate if they fail to take reasonable steps to prevent a disabled person from being placed at a substantial disadvantage. This is commonly known as the duty to make ‘reasonable adjustments’. This duty applies in the following areas:
- arrangements for determining admission to an institution
- teaching and learning and other student services provided or offered by an institution.
The duty to make reasonable adjustments includes a duty to provide auxiliary aids and services and a duty to remove or alter a physical feature.
Some examples of reasonable adjustments might be:
- a college provides a student with learning difficulties with additional support in her written work so that she can achieve her NVQ qualification
- a local education authority (local authority in Scotland) ensures that a partially sighted adult learner receives handouts in large print
- a university arranges for sign language interpretation in lectures for a deaf student
- a university installs a lift to enable students who are wheelchair users to access lecture rooms on the first floor.
These duties are anticipatory. This means that an education provider cannot just wait until it is approached by a disabled student but must be thinking ahead about what adjustments might be needed.
What is ‘reasonable’ when making adjustments?
The DDA does not define ‘reasonable’ and ultimately it will be up to the court to decide. However, issues such as the cost of the adjustment, the interests of other students, health and safety factors and whether academic standards are maintained will all be taken into account in deciding whether an adjustment is reasonable.
What is a ‘physical feature’?
Physical features include steps, stairways, kerbs, exterior surfaces and paving, parking areas, building entrances and exits (including emergency escape routes), internal and external doors, gates, toilet and washing facilities, lighting and ventilation, lifts and escalators, floor coverings, signs, furniture, and temporary or movable items. This is not an exhaustive list.
What should I do if I think I have been discriminated against?
The Helpline should be able to help. Advisers will be able to guide you through the law and discuss your options. They may also be able to send you some helpful material that might support you in resolving an experience of disability discrimination.
Helpline colleagues can also signpost you to other relevant organisations who may be able to assist you. In some circumstances we may be able to refer your dispute to the Conciliation Service and be able to get a satisfactory result without taking the case further. The aim is to reach an agreement that both sides accept.
The conciliation service will be available in England, Scotland and Wales and disputes may be referred to conciliation if both sides agree. However, please note that you will not be stopped from taking legal action if you are unhappy with the outcome of the conciliation. If your complaint is referred to the service, you will have extra time in which to take legal action.
How do I make a legal complaint?
You may be able to take your dispute further by going to court. This will be a civil action in a county court in England and Wales, or the Sheriff Court in Scotland. You need to take your complaint to court within six months of the date when the alleged discrimination took place (this time period is extended to 8 months if the case has first gone to the DCS). If you have been discriminated against over time, the six months begins at the date of the last incident.
If your court case is successful, you could be awarded compensation. You may also seek an injunction (in England and Wales) or an interdict (in Scotland) to stop further discrimination, or to make your educational institute take positive action to avoid discrimination.
Can I make an informal complaint?
You can complain directly to the body responsible for your education. They should have a complaints procedure to help solve disputes quickly. You can do this even if you have begun legal proceedings.