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Disability Discrimination Post-16 Education: The 5 Step Test

Introduction
Step 1: Does the disabled person meet the DDA’s definition of disability?
Step 2: Is the disabled person a student or potential student or applicant?
Step 3: Is the institution and/or service covered by the Post-16 sections of the DDA?
Step 4
Step 5
Useful Information


Introduction

This five step test has been devised to help you assess whether disability discrimination has occurred in relation to the provision of further and higher education. This information booklet does not constitute legal advice. Nor is it intended to be used in place of reading either the Code of Practice for Providers of Post-16 Education and Related Services or the SEN and Disability Act 2001 and/or the Disability Discrimination Act 1995.

Skill would like to thank Paul Brown, SHEFC National Co-ordinator for Students with Disabilities, who devised this document.


Step 1

Does the disabled person meet the DDA’s definition of disability?
- Is a physical or mental impairment involved?
- Does the impairment have a substantial adverse effect?
- Does the impairment have a long-term effect?
- Does the impairment affect normal day-to-day activities?

If NO: it is unlikely to be unlawful discrimination on the grounds of disability

If YES: go to
Step 2


Step 2

Is the disabled person a student or potential student or applicant?

If NO: it is unlikely to be unlawful discrimination under the Post-16 sections of the DDA

If YES: go to
Step 3


Step 3

Is the institution and/or service covered by the DDA Part 4?
- Is the provider liable under the post-16 provisions of the Act?
- Is the service covered?
- Is an individual liable?

If NO: it is unlikely to be unlawful discrimination under the Post-16 sections of the DDA

If YES: go to
Step 4


Step 4

- Has the disabled person received less favourable treatment for a reason related to his/her disability?
- Has the responsible body failed to take all reasonable steps to ensure that disabled persons are not placed at substantial disadvantage (ie failed to make a reasonable adjustment)?

If NO: to all of these:
it is unlikely to be unlawful discrimination on the grounds of disability

If YES: go to
Step 5


Step 5

- Was it reasonable for the responsible body not to know the person was disabled AND was a failure to make an adjustment related to this lack of knowledge?
- Can the responsible body justify less favourable treatment?
- Is the failure to make a reasonable adjustment justifiable?

If YES: to all:
it is unlikely to be unlawful discrimination on the grounds of disability

If NO: to any or all:
it may be unlawful discrimination and there may be grounds for legal action


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Step 1: Does the disabled person meet the DDA’s definition of disability?


Is a physical or mental impairment involved?

What counts as a disability?
The DDA describes a disabled person as anyone with ‘a physical or mental impairment which has a substantial and long-term adverse effect upon their ability to carry out normal day-to-day activities’. This is intended to be a fairly wide definition.

What does ‘physical impairment’ cover?
It covers all physical impairments including sensory impairments, such as those affecting sight or hearing and medical conditions.

Are all mental impairments covered?
The term ‘mental impairment’ is intended to cover a wide range of impairments relating to mental functioning, including what are often known as learning disabilities. However, the Act states that it does not include any impairment resulting from or consisting of a mental illness, unless that illness is a clinically well-recognised illness. A clinically well-recognised illness is one that is recognised by a respected body of medical opinion.


Are people who have disfigurements covered?

A severe disfigurement is to be taken as having an adverse effect on a person’s ability to carry out normal day-to-day activities. It is not necessary to prove that the disfigurement has that effect.


Are people with genetic conditions covered?
If a genetic condition has no effect on ability to carry out normal day-to-day activities, the person is not covered by the DDA. Diagnosis does not in itself bring someone within the definition. If the condition is progressive, then the rule about progressive conditions applies (see below under ‘What about people who know their condition is going to get worse over time?’).


Does the impairment have a substantial adverse effect?

What is a ‘substantial’ adverse effect?
A substantial adverse effect is something which is more than a minor or trivial effect and goes beyond the normal differences between people.


Does the impairment have a long-term effect?

What is a ‘long-term’ effect?
A long-term effect of an impairment is one:
- which has lasted at least 12 months; or
- where the total period for which it lasts is likely to be at least 12 months; or
- which is likely to last for the rest of the life of the person affected.

Effects which are not long-term would therefore include loss of mobility due to a broken limb which is likely to heal within 12 months, and the effects of temporary infections, from which a person would be likely to recover within 12 months.

What if the effects come and go over a period of time?
If an impairment has had a substantial adverse effect on normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur; that is, if it is more probable than not that the effect will recur. Take the example of a person with rheumatoid arthritis whose impairment has a substantial adverse effect, which then ceases to be substantial (i.e. the person has a period of remission). The effects are to be treated as if they are continuing, and are likely to continue beyond 12 months, if:
- the impairment remains; and
- at least one recurrence of the substantial effect is likely to take place 12 months or more after the initial occurrence.
This would then be a long-term effect.

What about people who know their condition is going to get worse over time?
Progressive conditions are conditions which are likely to change and develop over time. Examples given in the DDA are cancer, multiple sclerosis, muscular dystrophy and HIV infection. Where a person has a progressive condition he or she will be covered by the Act from the moment the condition leads to an impairment which has some effect on ability to carry out normal day-to-day activities, even though not a substantial effect, if that impairment is likely eventually to have a substantial adverse effect on such ability.

What about people who have recovered from a disability?
People who have had a disability within the definition are protected from discrimination even if they have since recovered.


Does the impairment affect normal day-to-day activities?

What are ‘normal day-to-day activities’?
These are activities which are carried out by most people on a fairly regular and frequent basis. The term is not intended to include activities which are normal only for a particular person or group of people, such as playing a musical instrument, or a sport, to a professional standard or performing a skilled or specialist task at work. However, someone who is affected in such a specialised way, but is also affected in normal day-to-day activities, would be covered by this part of the definition. The test of whether an impairment affects normal day-to-day activities is whether it affects one of the broad categories of capacity listed in Schedule 1 of the Act. They are:
- mobility;
- manual dexterity;
- physical co-ordination;
- continence;
- ability to lift, carry or otherwise move everyday objects;
- speech, hearing or eyesight;
- memory or ability to concentrate, learn or understand; or
- perception of the risk of physical danger.


Possible answers:

If YES: go to
Step 2

If NO: it is unlikely to be unlawful discrimination on the grounds of disability


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Step 2: Is the disabled person a student or potential student or applicant?

The post-16 sections of the Act only protect students and potential students and applicants.

The term ‘student’ includes anyone enrolled on or attending a course of study, whether:
- full or part-time
- a home or overseas student
- studying in Britain or elsewhere
- on a taught course or a research degree
- publicly or privately funded
- studying for a qualification or undertaking just part of a course
- enrolled on a one-day course or evening classes

Potential students and applicants includes:
 people enquiring about courses
 people attending open days or contacted during recruitment drives
 applicants

Possible Answers

If YES: go to
Step 3

If NO: it is unlikely to be unlawful discrimination under the Post-16 sections of the DDA


If the person is not a student they may still be protected under Part 3 of the Act. See the flow chart for Part 3 providers online at
www.drc-gb.org (Information, DDA user guide) and the Code of Practice on Rights of Access: Goods, Facilities, Services and Premises available from the Disability Rights Commission.

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Step 3: Is the institution and/or service covered by the Post-16 sections of the DDA?

Is the provider liable under the post-16 sections of the Act?


The post-16 sections of the Act place responsibilities on educational providers not to discriminate against disabled people. The providers covered by this section of the Act include most further and higher education institutions.

The legal responsibility for ensuring that discrimination does not take place lies with the responsible body for the provision. These are as follows:


England and Wales

- The governing body of an institution in the further education sector
- The governing body of an institution within the higher education sector
- The specified body of any other institution designated by the Secretary of State
- The local education authority in respect of any further higher or community education secured by it


Scotland

- The board of management of a college of further education
- The governing body of an institution within the higher education sector
- The governing body of a central institution
- The education authority of any institution maintained by it in the exercise of its further education functions


Is the service covered?

Admissions and enrolments, exclusions and any services provided ‘wholly or mainly for students’ are covered by the Post-16 sections of the legislation. (For local authority provision, all services are covered.)

- teaching and research facilities
- student letting and accommodation services
- careers advice
- health welfare and faith services
- extra-curricular courses for students and employment agency services
- leisure and social facilities primarily for students (bars, restaurants, common rooms, clubs and associations and sports facilities)
- admissions, examination and assessment arrangements
- open days and induction events
- references for students
- graduation services and alumni membership
- complaints and appeals


Some provision may be covered by other sections of the Act and so subject to different requirements.

- facilities primarily for the public, eg conference centres,
arts facilities, bars or car parking facilities – these are covered by Part 3 of the Act
- facilities provided and operated entirely by a third party – these are covered by Part 3 of the Act
- facilities provided by schools – these are covered by the pre-16 sections of Part 4


For Part 3 of the Act see the flow chart for Part 3 providers online at
www.drc-gb.org (Information, DDA user guide) and the Code of Practice on Rights of Access: Goods, Facilities, Services and Premises available from the Disability Rights Commission.


For the pre-16 sections of Part 4, See the Code of Practice for Schools available from the Disability Rights Commission.


Is an individual liable?

A responsible body’s legal liability for its employees
Under the Act, responsible bodies are legally responsible for the actions of their employees in the course of their employment. An employee who discriminates against a disabled person or student will usually be regarded as acting in the course of their employment, even if the responsible body has issued express instructions not to discriminate.


As an employer, a responsible body may not use the defence that discrimination took place without its knowledge or approval.


The employee might also be treated as having knowingly aided the responsible body if s/he knowingly helps someone else do something that is unlawful under the Act.


However, in legal proceedings against a responsible body based on the actions of an employee, it is a defence that the responsible body took ‘such steps as were reasonably practicable’ to prevent such actions.


Training for staff on how to work with disabled people is likely to be central to such a defence. It is not a defence for the responsible body simply to show that the action took place without its knowledge or approval.


A responsible body’s legal liability for its agents’ acts
The responsible body is legally liable for anything done by its agents, if done with their authority. That authority may be express or implied, and may have been given before or after the act in question.


Aiding unlawful acts
A person who knowingly helps someone else do something which is unlawful under the Act is also acting unlawfully.


Possible Answers

If YES: go to
Step 4

If NO: It is unlikely to be unlawful discrimination under Part 4


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Step 4

- Has the disabled person received less favourable treatment for a reason related to his/her disability?

- Has the responsible body failed to take all reasonable steps to ensure that disabled persons are not placed at substantial disadvantage (ie failed to make a reasonable adjustment)?


Has the disabled person received less favourable treatment for a reason related to his/her disability?

According to the Act, discrimination on the grounds of less favourable treatment occurs when a responsible body treats a disabled person less favourably for a reason relating to the person’s disability, than it treats (or would treat) a person to whom that reason does not, or would not, apply and that treatment cannot be justified.

The Act will make it unlawful for a responsible body to discriminate against a disabled person:
- in the arrangements it makes for determining admissions to the institution or enrolments to a course;
- in the terms on which it offers to admit or enrol the person;
- by refusing or deliberately omitting to accept an application for admission or enrolment;
- by excluding the person temporarily or permanently from an institution;
- in the provision of services.


Has the responsible body failed to take all reasonable steps to ensure that disabled persons are not placed at substantial disadvantage (ie, failed to make a reasonable adjustment)?

According to the Act, discrimination occurs when a responsible body fails to make a reasonable adjustment when a disabled student or person is placed, or likely to be placed, at a substantial disadvantage in comparison with a person who is not disabled.

To whom is the duty to make reasonable adjustments owed?
A responsible body’s duty to make reasonable adjustments is an anticipatory duty owed to disabled people and students at large. It is not simply a duty to individuals.


Responsible bodies should not wait until a disabled person applies to a course or tries to use a service before thinking about what reasonable adjustments they could make. Instead they should continually be anticipating the requirements of disabled people or students and the adjustments they could be making for them, such as regular staff development and reviews of practice. Failure to anticipate the need for an adjustment may mean it is too late to comply with the duty to make the adjustment when it is required. Lack of notice would not of itself provide a defence to an allegation that an adjustment should have been made.


What is a ‘substantial’ disadvantage?
The responsible body for an educational institution must take reasonable steps to ensure that a disabled person is not placed at a substantial disadvantage in comparison with a person who is not disabled, and in relation to admissions or services.


A ‘substantial’ disadvantage is one which is more than minor or trivial. When considering whether a disabled person or student is placed at a substantial disadvantage, a responsible body should take account of the time, inconvenience, effort or discomfort entailed in compared to that of other people or students who are not disabled. A ‘substantial’ disadvantage is one which is more than minor or trivial.


What is a ‘reasonable’ adjustment?

Without attempting to be exhaustive, the following are some of the factors which might be taken into account when considering what is reasonable:
- the need to maintain academic standards
- the financial resources available to the responsible body
- grants or loans likely to be available to disabled students (and only disabled students) for the purpose of enabling them to receive student services, such as Disabled Students’ Allowances
- the cost of taking a particular step
- the extent to which it is practicable to take a particular step
- the extent to which aids or services will otherwise be provided to disabled people or students
- health and safety requirements
- the relevant interests of other people or students.


Possible answers
If YES: to either of these: go to
Step 5

If NO: to all of these
it is unlikely to be unlawful discrimination on the grounds of disability


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Step 5

- Was it reasonable for the responsible body not to know the person was disabled AND was a failure to make an adjustment related to this lack of knowledge?
- Can the responsible body justify less favourable treatment?
- Is the failure to make a reasonable adjustment justifiable?


Was it reasonable for the responsible body not to know the person was disabled?

Disclosure and reasonable steps

If the institution did not know and could not reasonably have known that the student was disabled then failure to make an adjustment for a disabled person or student may not be discrimination. The failure to make an adjustment and the lack of knowledge must be connected.


However, in some cases, the knowledge might not be relevant because the responsible body should have made the reasonable adjustment in response to the anticipatory nature of the duty.


If the disabled person has told someone within the institution or service about his or her disability, then the responsible body may not be able to claim that it did not know. If the responsible body might reasonably have known or found out about a person’s disability, then it cannot claim that it did not know.


A responsible body needs to be proactive to encourage people to disclose a disability. This might involve asking people to declare their disabilities on application and enrolment forms. It may mean publicising the provision that is made for disabled people, and then providing opportunities for people to tell tutors, teachers or other staff in confidence. It might involve asking students when they apply for examinations whether they need any specific arrangements because of a disability. It will mean ensuring that the atmosphere and culture are open and welcoming so that disabled people feel safe to disclose a disability.


Nothing in the Act overrides an individual’s right to confidentiality under the Data Protection Act.1998.


Can the responsible body justify less favourable treatment?

Less favourable treatment may be justified only if one of the following conditions is fulfilled:
- it is necessary to maintain academic standards
- the reasons are both material to the circumstances of the particular case and substantial.

The general approach to justification
If a disabled person or student can show that he or she has been treated less favourably than others for a reason related to his or her disability, it is for the responsible body to show that the action taken was justified. The justification must fall within one of the categories listed above. The responsible body can only use one of these justifications if the justification would still be valid even after a reasonable adjustment had been made.


Is the failure to make a reasonable adjustment justifiable?



A failure to make a reasonable adjustment may only be justified if the reasons are both material to the circumstances of the particular case and substantial.

Possible answers:

If NO: to all:
It may be unlawful discrimination and there may be grounds for legal action

If YES: to all:
it is unlikely to be unlawful discrimination on the grounds of disability


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Useful Information

For more information on legal responsibilities towards disabled students and applicants under the Disability Discrimination Act see:

Code of Practice for Providers of Post-16 Education and Related Services
Available from the Disability Rights Commission Helpline

Contact:

The Disability Rights Commission Helpline
Freepost MID 02164
Stratford upon Avon
CV37 9BR
Tel: 08457 622 633
Textphone: 08457 622 644
Fax: 08457 778 878
www.drc-gb.org


Finding Out About People’s Disabilities: a good practice guide for further and higher education institutions
Available from DfES Publications

Contact:

Department for Education and Skills
PO Box 5050, Annesley, Nottingham NG15 0DJ
Tel: 0845 602 2260
Textphone: 0845 605 5560
Fax: 0845 603 3360



Skill information booklet:
The Disability Discrimination Act 1995 including Part 4: Education 2001.

Details of our information booklets and their prices are available from the Skill Information Service. People with disabilities can obtain 5 free booklets on receipt of a stamped addressed envelope. They can also be printed free from our website
www.skill.org.uk


Skill publication:
A guide to the DDA for institutions of further and higher education. 5th Edition, 2002
Priced £12.50


Produced May 2002


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