NADO Conference Reasonable adjustment – existing duties and impending amendments to the DDA

1. NADO ConferenceReasonable adjustment – existing duties and impending amendments to the DDA 4 July 2006 Bettina Rigg

2. A brief history (1) • September 2002 Post-16 education provider required to ensure they do not discriminate against disabled people • September 2003 Post-16 education providers required to provide auxiliary aids as a reasonable adjustment • October 2004 Amendments to Part 2 of the DDA (employment) include the removal of the justification ‘defence’ for failure to make reasonable adjustments

3. A brief history (2) • September 2005 Post-16 education providers required to make reasonable adjustments to physical features of premises where these put disabled people at a substantial disadvantage • September 2006 Post-16 education providers no longer able to justify a failure to make reasonable adjustments and other changes • December 2006 Disability equality duty in force

4. Reasonable adjustment – the current law • The duty – to take reasonable steps to ensure that, in relation to the arrangements an institution makes for determining admissions, a disabled person is not placed at a substantial disadvantage in comparison with a person who is not disabled, and in relation to student services a disabled student is not placed at a substantial disadvantage in comparison with someone who is not disabled • Anticipatory duty – owed to disabled people and students at large • Continuing duty – need to keep adjustments constantly under review • Justification for failure to take a reasonable step – reasons must be material to the circumstances of the particular case and substantial

5. Reasonable adjustments – impending changes (1) • The removal of the justification defence for a failure to make reasonable adjustments Example 1 NVQ in plumbing. Could take reasonable steps to make the course accessible but due to vocational nature of the qualification these adjustments would not be replicable in the workplace. Likely to be a material and substantial reason for not making reasonable adjustments Example 2 Degree in civil engineering. Student with limited mobility. Application rejected on ground that student would be unable to practice as a civil engineer because of their disability. Unlikely to be justified as degree not directly vocational

6. Reasonable adjustments – impending changes (2) • A provision, criterion or practice relating to the arrangements made for determining admissions or student services provided for, or offered to, students • Exception for competence standards • Changes take effect 1 September 2006 • The Disability Discrimination Act 2005 (Amendment) (Further and Higher Education) Regulations 2006 – not yet laid before Parliament • Draft Code of Practice – revises existing code to reflect these and other changes

7. Competence standards (1) • 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 • Purpose is to demonstrate a particular level of a relevant competence or ability • requirement of a particular level of knowledge of a subject? • the strength to carry out a particular task or activity within a set period? • a requirement that a person completes a test in a certain time period? • a requirement that a candidate for a written exam must write neatly? • a requirement that a set of successive sessions are attended?

8. Competence standards (2) • Where the application of a competence standard to a disabled person amounts to disability-related discrimination, the treatment is justified if, but only if, the education provider can show that; • The standard is (or would be) applied equally to people who do not have his/her particular disability; and • Its application is a proportionate means of achieving a legitimate aim

9. Recent examples of reasonable adjustments in the employment context • Southampton City College v Randall • Archibald v Fife Council • Smith v Churchill Stair Lifts

10. Factors that might be taken into account when considering what is reasonable (1) • Whether taking any particular steps would be effective in overcoming the difficulty that disabled people face in accessing the student services in question • The type of service being provided • The nature of the institution or service and its size and resources • The effect of the disability on the individual disabled person or student

11. Factors that might be taken into account when considering what is reasonable (2) • The extent to which it is practicable for the education provider to take the steps • The financial and other costs of making the adjustment • The financial resources available to the education provider • The availability of grants, loans and other assistance to disabled students (and only disabled students) for the purpose of enabling them to receive student services (such as Disabled Students’ Allowances)

12. Factors that might be taken into account when considering what is reasonable (3) • The extent to which aids and services will otherwise be provided to disabled people or students • Health and safety requirements; and • The relevant interests of other people including other students