You should be familiar with the reasonable adjustments duty which was first introduced under the Disability Discrimination Act 1995. The reasonable adjustments duty under the Equality Act operates slightly differently but the object is the same: to avoid as far as possible by reasonable means the disadvantage which a disabled student experiences because of their disability.
The duty requires you to take positive steps to ensure that disabled students can fully participate in the education and other benefits, facilities and services provided for students.
You are required to take reasonable steps to:
Avoid substantial disadvantage where a provision, criterion or practice puts disabled students at a substantial disadvantage.
Avoid substantial disadvantage, where a physical feature puts disabled persons at a substantial disadvantage; this includes removing the physical feature in question, altering it or providing a reasonable means of avoiding it.
Provide an auxiliary aid where without one, disabled students would be put at a substantial disadvantage.
You owe this duty to existing students, applicants and, in limited circumstances, to disabled former students.
You cannot justify a failure to make a reasonable adjustment; where the duty arises, the issue is whether or not the adjustment is ‘reasonable’ and this is an objective question for the courts to ultimately determine.
The duty is an anticipatory and continuing one that you owe to disabled students generally, regardless of whether you know that a particular student is disabled or whether you currently have any disabled students. You should not wait until an individual disabled student approaches you before you consider how to meet the duty. Instead you should plan ahead and anticipate the requirements of disabled students and the adjustments that might need to be made for them. You are not expected to anticipate the needs of every prospective student but you are required to think about and take reasonable and proportionate steps to overcome barriers that may impede people with different kinds of disabilities. For example, while it may be appropriate for university to install a hearing loop in lecture theatres to anticipate deaf students’ needs, they would not be expected to have a British Sign Language (BSL) interpreter on the payroll.
A university recognises that making an adjustment to provide handouts in advance in electronic format is a common anticipatory need for disabled students, for example students who lip-read, students with dyslexia and students with visual impairments. The university makes this adjustment and agrees timescales to ensure all staff have teaching notes available in this way. This is an example of an anticipatory adjustment.
(Example provided by Skill: National Bureau for Students with Disabilities.)
A disadvantage that is more than minor or trivial is called a ‘substantial disadvantage’. The level of disadvantage created by a lack of reasonable adjustments is measured in comparison with what the position would be if the disabled student in question did not have a disability.
A further or higher education institution will need to take into account a number of factors when considering what a substantial disadvantage might be, such as:
- the time and effort that might need to be expended by a disabled student
- the inconvenience, indignity or discomfort a disabled student might suffer
- the loss of opportunity or the diminished progress a disabled student might make in comparison with his or her peers who are not disabled.
A sixth form college has several sites and students are required to move between sites to attend different classes. This is likely to place a student with mobility difficulties at a substantial disadvantage as they may find it hard to move between sites and arrive late for classes as a result. This is likely to be a substantial disadvantage.
These terms are not defined but in general they relate to how the education and other benefits, facilities and services are provided and cover all of a further or higher education institution’s arrangements, policies, procedures and activities.
Where a provision, criterion or practice places disabled students at a substantial disadvantage in accessing education and any benefit, facility or service, the further or higher education institution must take such steps as it is reasonable to take in all the circumstances to ensure the provision, criterion or practice no longer has such an effect. This might mean waiving a criterion or abandoning a practice altogether but often will involve just an extension of the flexibility and individual approach that most further and higher education institutions already show to their students.
A college has a strict policy that states no drugs are allowed on the premises. A student with a heart condition carries medication related to her condition. The college allows her to bring her medication with her to college. This is likely to be a reasonable adjustment to the college drug policy.
A competence standard is defined as an academic, medical or other standard applied by or on behalf of an education provider for the purpose of determining whether or not a person has a particular level of competence or ability. It is not a provision, criterion or practice and there is therefore no duty to make reasonable adjustments in relation to the application of a competence standard. However, the duty does apply to the process of demonstrating that a person meets the competence standard.
- The mark required to pass an exam would be a competence standard, so would not be subject to the duty to make reasonable adjustments. However, it might be a reasonable adjustment to give a disabled person a longer time in which to complete an exam.
- A student with a visual impairment is provided with his written exam in enlarged text. This would be an example of a reasonable adjustment to demonstrate that he can meet the competence standard.
Physical features of a building or premises include:
- any feature arising from the design or construction of a building
- any feature on the premises, including any approach to, exit from, or access to a building
- any fixtures, fittings, furnishings, furniture, equipment or other moveable property in or on premises, and
- any other physical element or quality.
All these features are covered by the duty, whether the feature in question is temporary or permanent.
Further and higher education institutions are more likely to be able to comply with their duty to make adjustments in relation to physical features if they arrange for an access audit of their premises to be conducted and then act on it.
Sometimes, a further or higher education institution will occupy premises under a lease or other binding obligation (for example, a mortgage, charge or restrictive covenant) under which they cannot alter the premises without someone else’s consent. In such cases, the Act provides that it is always reasonable for the further or higher education institution to have to request that consent, but that it is never reasonable for it to have to make an alteration before having obtained that consent.
In other cases, the terms of the lease may prevent a further or higher education institution from making alterations to the premises. However if the alteration is one which the institution is proposing to make in order to comply with its reasonable adjustments duty, the Act will override the terms of the lease so as to entitle the institution to make the alterations subject to the consent of its landlord, provided certain conditions are fulfilled.
A further or higher education institution may also need to obtain statutory consent before making reasonable adjustments involving alterations to premises, such as planning permission, building regulations approval or a building warrant in Scotland. The Act does not override the need to obtain such consents.
A further or higher education institution must take such steps as it is reasonable for it to take to provide auxiliary aids to avoid the substantial disadvantage experienced by disabled students. An auxiliary aid includes an auxiliary service and covers anything which provides additional support or assistance to a disabled student. This could range from the provision of a particular piece of equipment (which does not become the property of the student) to extra staff assistance. It includes making information available in an accessible format.
A university ensures deaf students have access to BSL interpreters and palantypists. This is an example of an auxiliary service which addresses the substantial disadvantage faced by deaf students.
Disabled students on higher education courses may be able to obtain the Disabled Students Allowance which helps provide for the cost of additional study support or equipment a student requires as a result of the effect of their disability; if a piece of equipment is purchased using this allowance, it will remain the property of the individual disabled students once they have finished their course.
A useful starting point for a further or higher education institution when determining what might be a reasonable adjustment is to consider how to ensure that disabled students can be involved in every aspect of student life. Often effective and practicable adjustments involve little or no cost or disruption.
Where disabled students are placed at a substantial disadvantage by a provision, criterion or practice, the absence of an auxiliary aid or a physical feature, the further or higher education institution must consider whether any reasonable adjustment can be made to overcome that disadvantage.
Further and higher education institutions should not expect disabled students to suggest adjustments but where they do, institutions should consider whether they would help to overcome the disadvantage and whether they are reasonable. It is good practice for further and higher education institutions to work with students in determining what reasonable adjustments can be made.
Last updated: 19 Feb 2019