Disability Discrimination Act 1995

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Code of PracticePost-16Code of Practice (revised) forproviders of post-16 educationand related services

Copies of this publication can be downloadedfrom the Disability Rights Commission website:www.drc-gb.org

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Disability Discrimination Act 1995

Code of PracticePost-16

Code of Practice(revised) for providersof post-16 educationand related services

London: TSO

ii

© Disability Rights Commission 2007

All rights reserved.

The information contained in this publication is believedto be correct at the time of manufacture. Whilst care hasbeen taken to ensure that the information is accurate,the publisher can accept no responsibility for any errorsor omissions or for changes to the details given.

First published 2007

ISBN 978 0 11 703730 4

Printed in the United Kingdom for The Stationery Office

Foreword

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The Disability Rights Commission has written andproduced this revised Code of Practice concerning newduties (under the provisions of the DisabilityDiscrimination Act 1995 and associated regulations)upon providers of post-16 education and related serviceswhich came into force on 1 September 2006.

This Code replaces the previous Code of Practice forproviders of post-16 education and related services,which was first published in 2002.

The Disability Discrimination Act 1995 was amended bythe Special Educational Needs and Disability Act 2001and introduced, for the first time, measures prohibitingdisability discrimination in the post-16 education sector(and also introduced similar measures in respect ofschools – see Code of Practice: Schools).

The initial duties which came into operation on 1September 2002 – prohibiting less favourable treatmentof disabled course applicants and students for disability-related reasons and requiring reasonable adjustments tobe made for disabled course applicants and studentsexperiencing substantial disadvantage in this context –have been supplemented by further duties upon post-16education providers to make adjustments throughproviding auxiliary aids and services (which came intoeffect on 1 September 2003), and by the duties uponpost-16 education providers to make reasonableadjustments to the physical features of premises (whichcame into effect on 1 September 2005).

By implementing the anti-discrimination requirements ofthe European Employment Framework Directive (see EUCouncil Directive 2000/78/EC of 27 November 2000)within Great Britain – through The DisabilityDiscrimination Act 1995 (Amendment) (Further andHigher Education) Regulations 2006 (StatutoryInstrument 2006 No. 1721) – to apply to virtually all post-16 education providers, the government has clearlyrecognised the link between improving educationalattainment levels for disabled people and therebyenabling better access to employment opportunities.

The new duties aim to reduce inequalities experiencedby disabled people in relation to post-16 education. Bydoing this, it is expected that the educational attainmentlevels of disabled people will significantly improve andthat this, in turn, will diminish inequalities disabledpeople experience in access to, and progression within,the labour market.

Providing effective means of obtaining increasinglynecessary higher and further education qualifications isone of the ways in which full participation in society isencouraged. I firmly believe the new duties will make areal difference to disabled people in this regard and willalso benefit post-16 education providers by helpingthem offer the highest quality of education services forall students.

Bert Massie CBE

Chairman,Disability Rights Commission

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Introduction 1

Purpose of post-16 sections of Part 4 of the Act 3

Purpose of the Code 3

Status of the Code 4

How to use the Code 5

Examples in the Code 7

References to ‘education providers’ in the Code 7

Other references in the Code 8

Changes to the legislation 8

Further information 8

Table 1: Changes to the Act 10

How can discrimination be avoided? 13

Introduction 13

Understanding the social dimension of disability 14

Recognising the diverse nature of disability 15

Avoiding making assumptions 15

Finding out about disabled people’s requirements 16

Seeking expert advice 17

Planning ahead 18

Auditing policies and procedures 19

Implementing anti-discriminatory policies and practices 21

Gathering Information 24

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Contents

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2 Attracting disabled applicants 27

Promoting a positive image 29

Resolving disputes 29

The Act’s provisions on post-16 education: an overview 31

Introduction 31

Who has rights under the Act? 31

Who has obligations under the Act? 36

What does the Act say about discrimination in post-16 40education?

What else is unlawful under the Act’s provisions on post-16 43education?

Who is liable for unlawful acts? 43

Other provisions 44

Introduction to the different forms of discrimination 45

What is direct discrimination? 47

Introduction 47

What does the Act say? 47

Identifying comparators for direct discrimination 51

Relevant circumstances 52

Relevance of reasonable adjustments to comparison 57

Can direct discrimination be justified? 58

What happens if direct discrimination occurs? 58

What evidence is needed to prove that direct discrimination 59has occurred?

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5What is the duty to make reasonable adjustments? 61

Introduction 61

What is the duty to make reasonable adjustments? 61

What disadvantages give rise to the duty? 64

To whom is the duty to make reasonable adjustments owed? 64

At what point does the duty to make reasonable 66adjustments arise?

Must education providers anticipate every barrier? 67

How can education providers identify possible adjustments 69to physical features?

How long does the duty continue? 69

Which disabled people does the duty protect? 70

What if the education provider does not know that the 70person is disabled, or is an actual or potential student?

Confidentiality and reasonable adjustments 74

What are ‘provisions, criteria and practices’? 75

What is a ‘physical feature’? 76

What is the duty in relation to conferment of 77qualifications for non-students?

When is it ‘reasonable’ for an education provider to have 78to make adjustments?

The effectiveness of the step in preventing the disadvantage 81

The type of service being provided 82

The nature of the institution or service and its size 82and resources

The effect of the disability on the individual disabled person 82or student

The practicability of the adjustment 82

The financial and other costs of the adjustment 84

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The financial resources of the education provider 84

The availability of grants, loans and other assistance to 85disabled students

The extent to which aids and services will otherwise be 87provided to disabled people or students

Health and safety requirements 88

The relevant interests of other people including other 90students

Other factors 91

What adjustments might an education provider have to make? 93

Can failure to make a reasonable adjustment ever be justified? 97

What is a competence standard? 98

What is the significance of this distinction? 100

What happens if the duty to make reasonable adjustments 101is not complied with?

What evidence is needed to prove that the duty to make 102reasonable adjustments has not been discharged?

What is disability-related discrimination? 105

Introduction 105

What does the Act say? 105

Identifying comparators for disability-related discrimination 106

Reason for the treatment 107

Must an education provider know that a person is disabled? 109

Justification of disability-related discrimination 110

When does the Act permit justification for a material and 111substantial reason?

How does the ‘material and substantial’ justification apply 113in practice?

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What is a competence standard? 116

When can less favourable treatment be justified in relation to 117competence standards?

How can education providers avoid discrimination in relation 119to competence standards?

What happens if disability-related discrimination occurs? 120

What evidence is needed to prove that unjustifiable 121disability-related discrimination has occurred?

Victimisation and harassment 125

Introduction 125

What does the Act say about victimisation? 125

What evidence is needed to prove victimisation has occurred? 127

What does the Act say about harassment? 129

What evidence is needed to prove harassment has occurred? 132

Discrimination in the admission of students 135

Introduction 135

General considerations 136

What are ‘arrangements’ for determining admissions to the 136institution?

Course requirements 137

Marketing the course 141

Recruitment activities 144

Admissions process 146

Less formal admissions processes 150

European and other international students 150

Professional and vocational courses 151

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Enrolment and induction 151

Knowledge of students’ disabilities and confidentiality 151

When can an education provider ask questions about a 152disability?

Can a disabled person be required to have a medical 154examination?

Offers of admission 155

Discrimination against students 157

Introduction 157

Student services 158

Induction 160

Teaching and learning 161

Work placements, field trips and study abroad 162

Academic progression and transfer 163

Assignments and assessments 165

Competence standards and qualifications 165

Discrimination in qualifications in practice 172

Written examinations 174

Vivas, orals and presentations 175

Practicals and performances 175

Dissertations and course work 176

Work-based assessment 177

Alternative types of assessment 177

Retention of disabled students 178

Libraries and study facilities 179

Centrally-provided services 180

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Accommodation 181

Keeping adjustments under review 181

Exclusion 182

After the termination of the relationship between a 183disabled student and education provider

Discrimination in relation to qualifications (for non-students) 187

Introduction 187

What is a qualification? 188

What is conferring? 188

Competence standards and qualifications 188

Formerly held qualifications 190

Who is liable for discrimination? 191

Introduction 191

England and Wales 191

Scotland 192

Responsible bodies and institutions designated by 193the Secretary of State

Responsibility for the acts of employees 193

Responsibility for the acts of agents 194

Responsibility for the acts of third parties 195

More than one party responsible 197

Aiding an unlawful act 199

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Making reasonable adjustments to premises – 201legal considerations

Introduction 201

Building regulations and standards 202

Leases, binding obligations and reasonable adjustments 203

What happens if a lease says that certain changes to 204premises cannot be made?

Obtaining other consents 205

When are landlords deemed to be withholding consent? 206

When is a landlord withholding consent reasonably? 207

Power of landlords to impose conditions on consent 209

What happens if the landlord refuses consent or attaches 209unreasonable conditions?

Bringing landlords into proceedings brought by 210disabled people

What happens if there is a dispute under the Act? 213

Introduction 213

Resolving disputes 213

Conciliation 214

Making a claim 215

Disability Rights Commission 216

Where to go for information and advice 217

Appendix A: Duties for other providers of post-16 education 219

Appendix B: The meaning of disability 249

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Appendix C: Further information 255

Index 263

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1.1 This Code of Practice replaces the earlier ‘Code ofPractice for providers of post-16 education andrelated services’.

1.2 This Code of Practice covers the duties set out inChapter 2 of Part 4 of the Disability DiscriminationAct 1995 (as amended by the Special EducationalNeeds and Disability Act 2001 and the DisabilityDiscrimination Act 1995 (Amendment) (Furtherand Higher Education) Regulations 2006).

1.3 The duties imposed on the majority of post-16education providers changed on 1 September2006. The changes are as a result of the DisabilityDiscrimination Act 1995 (Amendment) (Furtherand Higher Education) Regulations 2006 whichimplement the European Employment FrameworkDirective (2000/78/EC) in respect of vocationaltraining in the further and higher education sector.

1.4 These changes affect the following educationproviders:

� higher education institutions

� further education institutions (England andWales)

� colleges of further education (Scotland)

� local education authorities securing higherand further education, including adult andcommunity education (England and Wales)

SI 2006/1721

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1 Introduction

� education authorities securing furthereducation (Scotland)

� other specific institutions listed in regulations(see Chapter 11 for more detail).

1.5 However, for a few post-16 education providersthe duties have not changed. These educationproviders are:

� schools when providing further education foradults

� local education authorities when providingrecreational or training facilities (in Englandand Wales)

� education authorities when providingrecreational and training facilities (inScotland).

The duties for these education providers are setout only in Appendix A.

1.6 This Code describes the duties as set out in Part 4of the DDA 1995 and does not deal in detail withthe Disability Equality Duty which is explained intwo separate Codes: The Duty to PromoteDisability Equality: Statutory Code of Practice(England and Wales) and The Duty to PromoteDisability Equality: Statutory Code of Practice(Scotland).

1.7 With the exception of a few specialist residentialschools designated by regulations, schoolsprovision, including that for pupils over 16, is notcovered in this Code but in a separate Code ofPractice: Schools.

1.8 Education providers not listed in paragraphs 1.4and 1.5 are not covered by the post-16 provisions

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of Part 4 of the DDA 1995 but may be covered byPart 3 of the Act. Those duties are not covered inthis Code but in the Code of Practice: Rights ofAccess: services to the public, public authorityfunctions, private clubs and premises.

Purpose of post-16 sections of Part 4 of theAct

1.9 The Disability Discrimination Act 1995 (the Act)brought in measures to prevent discriminationagainst disabled people in the areas ofemployment and service provision. The SpecialEducational Needs and Disability Act 2001(SENDA) amended the DDA 1995 to covereducation. The post-16 sections of Part 4 of theAct deal specifically with post-16 education andwith related services such as recreational andtraining facilities provided by local educationauthorities (in England and Wales) and educationauthorities (in Scotland). Part 4 of the Act is basedon the principle that disabled people should notbe discriminated against in education. Educationproviders must comply with the duties set out inPart 4, as must others to whom those duties apply.

Purpose of the Code

1.10 This Code of Practice (the Code) gives practicalguidance on how to prevent discriminationagainst disabled students and disabled peoplewanting to access education or other relatedprovision. It describes the duties of educationproviders in this regard. The Code helps disabledpeople to understand the law and what they cando if they feel that they have been discriminatedagainst. By encouraging good practice, the Codeassists education providers to work towards theelimination of discrimination against disabledpeople and to avoid disputes.

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1.11 The Code also gives guidance on the law which isintended to help lawyers when advising theirclients, and to assist courts when interpreting newlegal concepts. The Code explains the operationand effect of technical statutory provisions – someof which only came into force on 1 September2006, and many of which have a complex legaleffect. Because of this, the Code is necessarilycomprehensive and detailed. However, theDisability Rights Commission (DRC) also producesa range of other publications about the Act, andabout the rights of disabled people under it, whichare intended to be of use to a range of audiencesand for a variety of purposes. Details of how toobtain these publications are given in paragraphs1.28 and 1.29.

1.12 The DRC has prepared and issued this Code underthe Act at the request of the Secretary of State. Itapplies to England, Wales and Scotland.

Status of the Code

1.13 The Code does not impose legal obligations, noris it an authoritative statement of the law – that isa matter for the courts. It is, however, a ‘statutory’Code. This means that it has been approved byParliament and is admissible as evidence in legalproceedings under the Act. Courts must take intoaccount any part of the Code that appears to themrelevant to any question arising in thoseproceedings. If education providers follow theguidance in the Code, it may help to avoid anadverse decision by a court in such proceedings.

s 53A

s 53A(8)

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How to use the Code

1.14 This chapter gives an introduction to the Code.

1.15 Chapter 2 sets out some general guidance on howto avoid discrimination. This chapter is relevant toall education providers covered by the post-16provisions of Part 4 of the DDA 1995.

1.16 Chapter 3 contains an overview of the Act’sprovisions on post-16 education providers, andthose provisions are examined in more detail insubsequent chapters. This chapter is onlyrelevant to those education providers listed inparagraph 1.4

1.17 Chapters 4, 5, 6 and 7 examine in detail the legalconcepts and duties for education providers.Chapter 4 details what is meant by directdiscrimination, Chapter 5 explains the duty tomake reasonable adjustments for disabled people,and Chapter 6 explains disability-relateddiscrimination and the relevance of justification.Chapter 7 explains what is meant by harassmentand victimisation. These chapters are onlyrelevant to those education providers listed inparagraph 1.4.

1.18 Chapters 8, 9 and 10 consider the practicalapplication of these principles in the context ofadmissions, student services and qualifications.These chapters are only relevant to thoseeducation providers listed in paragraph 1.4.

1.19 Chapter 11 explains who has responsibility for theAct’s provisions on post-16 education, particularlywhere third parties are involved. Chapter 12 looksat particular issues concerning adjustments topremises, and Chapter 13 deals with various otherpoints and explains what happens if

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discrimination is alleged. These chapters arerelevant to all education providers covered by thepost-16 provisions of Part 4 of the DDA 1995.

1.20 Appendix A outlines the duties for the educationproviders not affected by the changes broughtabout by the Disability Discrimination Act 1995(Amendment) (Further and Higher Education)Regulations 2006. These education providers are:

� schools when providing further education foradults

� local education authorities when providingrecreational or training facilities (in Englandand Wales)

� education authorities when providingrecreational and training facilities (inScotland).

1.21 Appendix B gives more information on what ismeant by ‘disability’ and by ‘disabled person’.Separate statutory guidance relating to thedefinition of disability has been issued under theAct. Appendix C lists other sources of relevantinformation about matters referred to in the Code.

1.22 Each chapter of the Code should be viewed as partof an overall explanation of the Act’s provisions onpost-16 education. In order to understand the lawproperly it is necessary to read the Code as awhole. The Code should not be read too narrowlyor literally. It is intended to explain the principlesof the law, to illustrate how the Act might operatein certain situations and to provide generalguidance on good practice. There are somequestions which the Code cannot resolve andwhich must await the authoritative interpretationof the courts and tribunals. The Code is notintended to be a substitute for taking appropriate

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advice on the legal consequences of particularsituations.

Examples in the Code

1.23 Examples of good practice and how the Act islikely to work are given in boxes. They areintended simply to illustrate the principles andconcepts used in the legislation and should beread in that light. The examples should not betreated as complete or authoritative statements ofthe law.

1.24 While the examples refer to particular situations,they should be understood more widely asdemonstrating how the law is likely to be appliedgenerally. They can often be used to test how thelaw might apply in similar situations involvingdifferent disabilities, or different types of post-16education. In general, however, the examplesattempt to use as many different varieties ofdisabilities and situations as possible todemonstrate the breadth and scope of the Act.References to men or women are given forrealism and the examples could, of course, applyto people of either gender.

References to ‘education providers’ in theCode

1.25 Throughout the Code, references are made to‘education providers’ for convenience. However,as explained in Chapter 3 and Appendix A, theAct’s provisions on post-16 education imposeobligations on persons who might not ordinarilybe described as post-16 education providers.

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Other references in the Code

1.26 References to the Act are shown in the margins.For example, s 1(1) means section 1(1) of the Actand Sch 1 means Schedule 1 to the Act.References to Part 2, 3 or 4 refer to the relevantPart of the Act. Where reference is made toregulations, the appropriate Statutory Instrument(SI) number is shown in the margin.

Changes to the legislation

1.27 The Code refers to Part 4 of the DisabilityDiscrimination Act as of 1 September 2006. Theremay be changes to the Act or to other legislation,for example, to the range of people who areconsidered to be ‘disabled’ under the Act, whichmay have an effect on the duties explained in thisCode. You will need to ensure that you keep up-to-date with any developments that affect the Act’sprovisions. You can get relevant information fromthe DRC (see paragraph 1.29 for contact details).

Further information

1.28 Copies of the Act and regulations made under itcan be purchased from The Stationery Office (seeinside the front cover of the Code for details).Separate Codes covering other aspects of the Act,and Guidance relating to the definition ofdisability, are also available from The StationeryOffice. The text of all the DRC’s Codes (includingthis Code) can also be downloaded free of chargefrom the DRC website (see paragraph 1.29).

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1.29 Free information about the Act is available on theDRC website. It can also be obtained by contactingthe DRC Helpline. This information is available inaccessible formats.

Website: www.drc-gb.orgTelephone: 08457 622 633Textphone: 08457 622 644Fax: 08457 778 878

Post: DRC HelplineFREEPOSTMID 02164Stratford Upon AvonCV37 9BR

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Table 1: Changes to the Act

The table below summarises the main changes tothe Act’s provisions on post-16 education takingeffect on 1 September 2006. It only covers thechanges for education providers described in thisCode – the duties for education providers notaffected by these changes are explained inAppendix A. It does not include all the changesoccurring on that date, and it is not a fullexplanation of the law.

Position before1 September 2006

Position after1 September 2006

Scope Discriminationrelevant to alleducationprovisionincludingadmissions,student servicesand exclusions.

New specificprovisions inrelation toqualifications.

New specificprovisionsprohibitingdiscriminatoryadverts.

New specificprovisionsprohibitinginstructions andpressure todiscriminate.

New specificduties that applyafter arelationship hasended.

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Position before1 September 2006

Position after1 September 2006

Types ofdiscrimination

Three kinds ofdiscrimination:

� Less favourabletreatment for areason relatedto disability.

� Failure to makereasonableadjustments.

� Victimisation.

Four kinds ofdiscrimination:

� Directdiscrimination.

� Failure to makereasonableadjustments.

� ‘Disability-relateddiscrimination’.

� Victimisation.

When isjustificationrelevant?

Justification wasof relevance incases about:

� Less favourabletreatment.

� Failure to makereasonableadjustments.

Justification isonly relevant incases about:

� Disability-relateddiscrimination.

Harassment Covered, but noseparateprovisions on this.

New provisionson harassment.

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Introduction

2.1 There are various actions which educationproviders can take in order to avoid discriminatingagainst disabled people. By doing so, educationproviders are not only likely to improve the overallperformance of the institution but will alsominimise the incidence of expensive and time-consuming litigation. In addition, these actionswill assist education providers in complying withthe Disability Equality Duty, which all thoseoperating in the public education sector will becovered by either directly or indirectly. TheDisability Equality Duty requires all publicauthorities – including education providerscovered by the Part 4 duties outlined in this Code– when carrying out their functions to have dueregard to the need to:

� promote equality of opportunity betweendisabled persons and other persons

� eliminate discrimination that is unlawful underthe Act

� eliminate harassment of disabled persons thatis related to their disabilities

� promote positive attitudes towards disabledpersons

� encourage participation by disabled personsin public life; and

SI 2005/2966

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2 How can discrimination be avoided?

� take steps to take account of disabled persons’disabilities, even where that involves treatingdisabled persons more favourably than otherpersons.

To assist certain public authorities – includingeducation providers – in complying with the aboveduty (known as the general duty), regulations laydown certain steps which these authorities musttake. These are known as the ‘specific duties’.They include the obligation to produce a DisabilityEquality Scheme which, amongst other things,requires public authorities to set out the stepswhich they will take (known as the action plan) tocomply with the general duty. The general andspecific duties do not create any individual rightsfor disabled people, but the Disability RightsCommission can enforce the specific duties, and afailure to comply with the general duties mayresult in actions in the High Court (in England andWales) or the Court of Session (in Scotland) byway of judicial review proceedings.

2.2 This chapter sets out some guidance on ways tohelp ensure that disabled people are notdiscriminated against. It also addresses only someof the aspects of the Disability Equality Duty.Education providers should refer to the StatutoryCodes of Practice on the Duty to PromoteDisability Equality for full details of the obligationswhich they must comply with in relation to theduty (see Appendix C).

Understanding the social dimension ofdisability

2.3 The concept of discrimination in the Act reflectsan understanding that functional limitationsarising from disabled people’s impairments maynot inevitably restrict their ability to participate

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fully in society. It is often environmental factors(such as the structure of a building, or aneducation provider’s practices) or attitudes whichunnecessarily lead to these restrictions. Thisprinciple underpins the duty to make reasonableadjustments described in Chapter 5.Understanding this will assist education providersin avoiding discrimination. It is as important toconsider which aspects of education provisioncreate difficulties for a disabled person as it is tounderstand the particular nature of an individual’sdisability.

Recognising the diverse nature of disability

2.4 It is estimated that there are over 10 milliondisabled people in our society. The nature andextent of their disabilities vary widely, as do theirrequirements for overcoming any difficultieswhich they may face. If education providers are toavoid discriminating, they need to understandthis, and to be aware of the effects that theirdecisions and actions – and those of their agentsand employees – may have on disabled people. Inpractice many of the steps that can be taken toavoid discrimination cost little or nothing and areeasy to implement.

Avoiding making assumptions

2.5 It is advisable to avoid making assumptions aboutdisabled people. Disabilities will often affectdifferent people in different ways and people withthe same impairment may have different needs.The following suggestions may help to avoiddiscrimination caused by some assumptions. Donot assume that:

� because a person does not look disabled, he isnot disabled

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� because you do not know of any disabledstudents at your institution, there are none

� most disabled people use wheelchairs

� people with learning disabilities cannotbenefit from education

� a person with a mental health conditioncannot do a demanding course

� all blind people read Braille or have guidedogs

� all deaf people use sign language

� because a disabled person may have fewerqualifications, or non-traditional qualifications,than a non-disabled person, he has less tooffer.

Finding out about disabled people’srequirements

2.6 The Act requires education providers to thinkabout ways of complying with their legal duties.Listening carefully to disabled people and findingout what they require will help educationproviders to meet their obligations by identifyingthe best way of meeting disabled people’s needs.There is a better chance of reaching the bestoutcome if discussions are held with disabledpeople at an early stage. The anticipatory natureof the reasonable adjustments duty (explained inChapter 5) requires education providers to be pro-active in finding out about individual disabledpeople’s requirements and thinking about theneeds of disabled people in general. In addition,the specific duties regulations require theinvolvement of disabled people in thedevelopment of the Disability Equality Schemeand the gathering of evidence (see paragraph2.14).

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2.7 Often, discussing with disabled people what isrequired to meet their requirements will reassurean education provider that suitable adjustmentscan be carried out cheaply and with very littleinconvenience.

2.8 There are various ways in which the views ofdisabled people can be obtained. Many largereducation providers have established formalstructures for seeking and representing the viewsof disabled people. Smaller education providerscan also consult with disabled students, althoughthe methods may be less formal. Guidance foreducation providers on the involvement ofdisabled people in the development of theDisability Equality Scheme is available from theDRC (see Appendix C).

A course tutor sets up a meeting with a studentwith a learning disability to explain the processof progressing to the next level of their courseand to give the student an opportunity to discusstheir requirements for the course.

A university has developed a system throughwhich students can feed back on all elements ofthe university by completing on-linequestionnaires. The university ensures thatstudents are made aware of this system and thatthe questionnaires are available in a range ofaccessible formats.

Seeking expert advice

2.9 It may be possible to avoid discrimination byusing in-house knowledge and expertise –particularly if information or views are obtained

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from the disabled person concerned. However, onoccasion it may be necessary to seek expertadvice about the needs of an individual disabledstudent. Expert advice might be especially usefulif a person is newly disabled or if the effects of aperson’s disability become more marked. Inaddition, expert technical advice may assist inmaking adjustments to physical features orproviding technical support for disabled students.A starting point for advice about meeting theneeds of disabled people may be the university orcollege disability office, local and nationaldisability organisations and further and highereducation organisations which may haveparticular expertise in disability issues.

Planning ahead

2.10 The duties under Part 4 of the Act are owed todisabled people in general. It is likely to be cost-effective for education providers to plan ahead.Considering the needs of a range of disabledpeople when planning for change (such as when anew course is being validated or an existingcourse is being reviewed, planning a buildingrefurbishment, a new IT system, or the design of awebsite) is likely to make it easier to implementadjustments for individuals when the need arises.In addition a failure to consider the needs ofdisabled people in such planning is likely torender an education provider in breach of itsDisability Equality Duty. The general duty requireseducation providers to adopt a proactiveapproach, mainstreaming disability equality intoall relevant decisions and activities.

2.11 Education providers are more likely to be able tocomply with their duties under the Act if they haveaccess audits carried out to identify anyimprovements which can be made to a building to

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make it more accessible. Access audits should becarried out by suitably qualified people, such asthose listed in the National Register of AccessConsultants (see Appendix C for details).

A local education authority (LEA) providingrecreational and training facilities is re-designingits website, which it uses to promote theorganisation as well as to advertise courses. Theprovider ensures that the new design for thewebsite is easy to read for people who use avariety of access software; has the websitechecked for accessibility; and invites disabledreaders of the website to let the provider know ifthey find any part of it inaccessible.

Auditing policies and procedures

2.12 Part 4 places a duty on education providers toanticipate the needs of disabled people in general.In order to comply with this duty, educationproviders need to keep all their policies underreview, and to consider the changing needs ofdisabled people as part of this process. It isadvisable for education providers to do this inaddition to having a specific policy to preventdiscrimination. Education providers are likely tohave policies about matters such as:

� data protection

� freedom of information

� health and safety

� equal opportunities

� assessment

� admissions

� disciplinary procedures and code of conduct

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� student complaints procedure

� student charter

� learning and teaching

� emergency evacuation procedures.

All of these policies (and any other that aneducation provider has) need to be regularlyreviewed and, if necessary, amended to ensurethey do not discriminate against disabled people.

A further education college has a students’charter which includes a commitment toensuring that all students are informed about thecollege’s policies and procedures through anintranet site. The charter says that the intranetsite should be accessible to all students,including those who use access software.

A further education college has a procedure forthe timetabling and room allocation of allexaminations. An early stage of the procedure isto gather information from students about anyreasonable adjustments they require in theexaminations so that these can be taken intoaccount when scheduling the examinations.

An education provider introduces an admissionspolicy. It takes advice from a number of disabilityorganisations to ensure that the system itintroduces doesn’t discriminate against disabledpeople. It also ensures that every year thesystem is monitored to ensure that disabledapplicants are not, on average, less likely to gainadmission than non-disabled applicants and ifthey are that they take measures to address this.

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A university revises its disciplinary procedure toinclude consideration of disability-relatedabsence when making decisions about issuesrelating to course attendance. Disability-relatedabsence is separately recorded in attendanceregisters.

A community education provider using newbuildings reviews the emergency evacuationpolicies and procedures to ensure that there areindividual evacuation plans for any disabledpeople who need them.

Implementing anti-discriminatory policiesand practices

2.13 Education providers are more likely to complywith their duties under the Act, and to avoid therisk of legal action being taken against them, ifthey implement anti-discrimination policies andpractices. These are often referred to as equalitypolicies or diversity policies. Additionally, in theevent that legal action is taken, educationproviders may be asked to demonstrate to a courtthat they have effective policies and procedures inplace to minimise the risk of discrimination.Although large and small education providers arelikely to have different kinds of anti-discriminationpolicies and practices, it is advisable for alleducation providers to take the following steps:

� Establish a policy which aims to preventdiscrimination against disabled people andwhich is effectively communicated to allstudents, employees and agents of theeducation provider.

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� Inform all students, employees and agentsthat conduct which breaches the policy willnot be tolerated, and respond quickly andeffectively to any such breaches.

� Provide disability awareness and equalitytraining to students and employees. Inaddition, train employees and agents so thatthey understand the education provider’spolicy on disability, their obligations under theAct and, in particular, the legal duty to makereasonable adjustments. Someemployees/agents may have discrete, morefrequent and predictable contact with disabledpeople than others and, therefore, requiremore specialised training.

� Monitor the implementation and effectivenessof such a policy.

� Address acts of disability discrimination bystudents and employees as part of disciplinaryrules and procedures.

� Have complaints and grievance procedureswhich are easy for disabled people to use andwhich are designed to resolve issueseffectively.

� Have clear procedures to prevent and dealwith harassment for a reason related to aperson’s disability.

� Establish a policy in relation to disability-related absence, and monitor theimplementation and effectiveness of such apolicy.

� Consult with disabled students about theirexperiences of the education provider.

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� Regularly review the effectiveness ofreasonable adjustments made for disabledpeople in accordance with the Act, and act onthe findings of those reviews.

� Keep clear records of decisions taken inrespect of each of these matters.

An adult education college introduces a newdisability policy. It discusses with its HRdepartment how best to deliver training to itsstaff, many of whom work part-time. The HRdepartment asks an external training companyrun by disabled people to run training sessionsfor all staff.

A small education provider introducing a similarpolicy asks the chief executive to devote a staffmeeting to explain the policy to her staff and todiscuss why it is important and how it willoperate.

A large further education college issues aquestionnaire to students about theirexperiences of attending the college. Thequestionnaire invites specific comments on thequality of provision for disabled students.

A small education provider asks disabledlearners to feed back views on the provider’sapproach to disability issues.

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Gathering information

2.14 Gathering information relating to students is animportant way to determine whether anti-discrimination measures taken by an organisationare effective, and ensuring that disability equalityis a reality within that institution.

2.15 Gathering information about students is adifferent process to obtaining information fromindividual disabled students about theirreasonable adjustments requirements. Theprocesses should be separate and it should bemade clear to students and applicants why theinformation is being collected.

2.16 The disability equality specific duties requirepublic authorities to set out the following in theirDisability Equality Schemes:

� arrangements for gathering information onthe effect of their policies and practices on theeducational opportunities available to, and onthe achievements of, disabled students

� arrangements for gathering information onthe effect of their policies and practices on therecruitment, development and retention oftheir disabled employees.

2.17 It is important to understand that informationgathering is not an end in itself but that theinformation obtained must be analysed and usedas the basis for preparing disability action plans,and reviewing the effectiveness of those actionstaken. The information gathered is in fact evidenceof an authority’s progress in relation to disabilityequality. For this reason the Disability EqualityScheme is also required to include a statement ofthe public authority’s arrangements for makinguse of the information gathered in these ways and

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in particular its arrangements for reviewing on aregular basis the effectiveness of the action planand preparing subsequent Disability EqualitySchemes.

2.18 ‘Educational opportunities’ should be interpretedbroadly, to include aspects across the breadth ofactivities made available by the educationprovider. It may include gathering information onharassment and bullying, as well as informationon the promotion of positive attitudes towardsdisabled students and pupils and theencouragement of their participation in public life.

2.19 ‘Achievements’ should be interpreted to includenot only the attainment of formal qualifications,but also a range of other achievements such asimproving attendance or achieving positions ofresponsibility.

2.20 Information must be gathered sensitively, withappropriately worded questions, andconfidentiality must be ensured. Knowing theproportion of disabled people at various levels ofthe institution, and at various stages in relation tothe admissions process, can help an educationprovider determine where practices and policiesneed to be improved. The extent to which formalmonitoring can be carried out will depend on thesize of the institution.

2.21 Monitoring will be more effective if students (orapplicants) feel comfortable about disclosinginformation about their disabilities. This is morelikely to be the case if the education providerexplains the purpose of the monitoring and ifstudents or applicants believe that the educationprovider genuinely values disabled students andis using the information gathered to createpositive change.

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A sixth form college monitors the participation ofstudents in optional college activities. Thecollege becomes aware that, although there are anumber of disabled students attending thecollege, students with mobility-relatedimpairments are less likely to participate in theseactivities. It uses this information to review theaccessibility of the activities including the timing,transport arrangements and venues.

2.22 Some institutions, especially large ones, choose tomonitor by broad type of disability to understandthe barriers faced by people with different types ofimpairment.

A university notices through monitoring that theinstitution has been successful at retaining mostgroups of disabled people on courses, but notpeople with mental health conditions. It acts onthis information by contacting an organisationthat provides advice and good practice inproviding education to people with mental healthconditions and acting on the advice received.

2.23 Many education providers will already becollecting information on disability. They will needto ensure that this evidence is both appropriateand sufficient to enable them to consider theimpact which their policies and practices arehaving upon their general duty to promotedisability equality.

A university is collecting a wide range ofinformation but this is held in a number ofdifferent departments such as the Registry andthe Faculty. The university uses a cross-

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departmental group to collate information aboutits students and review why the information iscollected and how it is used.

2.24 Public authorities are required to put into effectarrangements for gathering information andmaking use of it. In their annual reporting on theduty, they must set out the results of theinformation gathering which they have carriedout. This should detail the evidence which hasbeen obtained and the implications of thatevidence. In addition, the authorities should spellout what has been done with the informationwhich has been obtained and what actions will betaken as a result of that.

Attracting disabled applicants

2.25 An education provider that becomes aware thatsuitably qualified disabled people have notapplied to study on courses it provides shouldtake steps to encourage disabled people to apply.Failing to act on a recognition that disabled peopleare not applying to the education provider is likelyto be in breach of the Disability Equality Duty.

2.26 It will be helpful for education providers to seekadvice from local or national disabilityorganisations on ways to attract disabled peopleor to work with other local providers of educationand schools. Providing information about thesupport available for disabled students andholding ‘open days’ to enable disabled applicantsto discuss support needs may encourageapplications from disabled people.

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By monitoring the admissions process, aneducation authority notices that very fewdisabled people apply for courses. In light of thisinformation, it decides to ask a local organisationof disabled people to advertise its courses.

A further education college is advertising its newprospectus of courses. It places an advert in thenewsletter of a local disability organisation andarranges ‘drop-in’ sessions in conjunction withthe disability organisation for disabled people tofind out more about studying at the college.

2.27 Education providers need to consider carefullywhat information should be included inadvertisements and promotional materials andwhere they should be placed. This is necessaryboth to encourage disabled applicants and toavoid breaching the discriminatory advertisementprovisions. Further details about the obligationsnot to discriminate in advertisements are providedin paragraphs 8.15 to 8.18.

A prospectus that makes clear reference to thepolicy and procedures of an institution in relationto disabled people may encourage moredisabled people to apply for courses.

An advertisement that appears in the disabilitypress and talking newspapers may encouragedisabled people to apply for courses.

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Promoting a positive image

2.28 One of the aspects of the Disability Equality Duty,as outlined above, is the need to promote positiveattitudes towards disabled people. As well ascontributing to the overall goal of equality ofopportunity, promoting such attitudes will ensurethat education providers demonstrate that theyare aware of the needs of disabled people and thatthey are striving to create a more diverse studentbody. It will in turn attract more disabled students,and encourage more students and prospectivestudents to participate in the monitoring which theprovider is conducting.

A university ensures that its ‘GraduationSuccess Stories’ includes the successes ofdisabled graduates in an appropriate andsensitive manner including those with hiddendisabilities.

A sixth form college reviews the images used inits careers materials to ensure that they reflectpositive images of disabled people.

Resolving disputes

2.29 Having policies and practices to combatdiscrimination, together with regular consultationwith students, is likely to minimise disputes aboutdisability discrimination. But when such disputesdo occur, it is in the interest of education providersto attempt, wherever possible, to resolve them asthey arise. Complaints procedures can provide anopen and fair way for students to make theirconcerns known, and can enable complaints to beresolved quickly before they become more

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significant problems. Use of the complaintsprocedures may highlight areas in which the dutyto make reasonable adjustments has not beenobserved, and can prevent misunderstandingsleading to complaints of discrimination beingcommenced in court. It is important to ensure thatcomplaints procedures are accessible to disabledpeople.

2.30 Chapter 13 contains further information aboutcomplaints procedures and about resolvingdisputes under the Act. Any attempts at internalresolution of a dispute should be carried out in anon-discriminatory way to comply with the Act.

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Introduction

3.1 This chapter gives an overview of the provisionsof the Act relating to post-16 education. It explainswho has rights and duties under those provisionsand outlines what is made unlawful by them. Laterchapters explain the provisions in greater detail.This chapter describes the duties for the followingeducation providers only:

� higher education institutions

� further education institutions (England andWales)

� colleges of further education (Scotland)

� local education authorities when securinghigher and further education, including adultand community education (England andWales)

� education authorities when securing furthereducation (Scotland)

� other specific institutions listed in regulations(see Chapter 11 for more detail).

Who has rights under the Act?Disabled people

3.2 The Act gives protection from discrimination to a‘disabled’ person within the meaning of the Act.A ‘disabled’ person is someone who has aphysical or mental impairment which has an effect

ss 1 and 2,Sch 1 and 2

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3 The Act’s provisions on post-16 education:an overview

on his or her ability to carry out normal day-to-dayactivities. That effect must be:

� substantial (that is, more than minor or trivial);and

� adverse; and

� long term (that is, it has lasted or is likely tolast for at least a year or for the rest of the lifeof the person affected).

3.3 Physical or mental impairment includes sensoryimpairment. Hidden impairments are also covered(for example, mental illness or mental healthconditions, learning disabilities, dyslexia, diabetesand epilepsy).

3.4 In addition to the basic definition of a ‘disabledperson’ there are some special provisions andexceptions. This means that in the case of peoplewith severe disfigurements the disfigurement is tobe treated as having a substantial adverse effecton the ability of the person concerned to carry outnormal day-to-day activities. Some progressiveconditions are automatically deemed to bedisabilities for the purposes of the Act, others willbe subject to the special rules on progressiveconditions. Further details are provided inAppendix B.

3.5 In considering its duties under the Act, aneducation provider should not use any definitionof ‘disabled person’ which is narrower than that inthe Act. An education provider who is requestedto make a disability-related adjustment may askthe person requesting it for evidence that theimpairment is one which meets the definition ofdisability in the Act. It may be appropriate to do sowhere the disability is not obvious or where theadjustment is not something that could have been

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anticipated. However, education providers shouldnot ask for more information about theimpairment than is necessary for this purpose.Nor should they ask for evidence of disabilitywhere it ought to be obvious that the Act willapply.

A woman who requires dialysis as a result of herhealth condition asks to miss lectures to attendregular hospital appointments. The educationprovider could legitimately ask to see a letterfrom the doctor or an appointment card.However, the education provider then asks herquestions about why she needs dialysis and thecause of her health condition. These areunnecessary questions and are likely to amountto discrimination.

3.6 In order to avoid discrimination, it would beprudent for education providers not to attempt tomake a fine judgement as to whether a particularindividual falls within the statutory definition ofdisability, but to focus instead on meeting theneeds of each student and applicant.

People who have had a disability in the past

3.7 People who have had a disability within themeaning of the Act in the past are protected fromdiscrimination even if they no longer have thedisability.

An applicant discloses on her application formthat from 1992 to 1994 she had long-termdepression after her father died. Refusing tointerview or offer her a place on a coursebecause she has had a disability in the past islikely to amount to discrimination. The fact that

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the disability preceded the DisabilityDiscrimination Act 1995 is irrelevant.

Overlap with other definitions

3.8 The definition of disability used in the Act is notthe same as other definitions in other legislation.In particular, the definition is not the same as thedefinition of ‘difficulty in learning’ used in theFurther and Higher Education (Scotland) Act 2005or the definition of ‘learning difficulty’ used in theLearning and Skills Act 2000. The DisabilityDiscrimination Act definition is based on ability tocarry out normal day-to-day activities, whereasthe Learning and Skills and Further and HigherEducation (Scotland) Acts definitions relatespecifically to learning. Some people may becovered by both, and others may be covered byonly one of these definitions. Education providersshould be aware that they may need to makedifferent provision for people covered by thedifferent pieces of legislation.

More information about the meaning of disability

3.9 For a fuller understanding of the concept ofdisability under the Act, reference should be madeto Appendix B. A government publication,Guidance on matters to be taken into account indetermining questions relating to the definition ofdisability, provides additional help inunderstanding the concept of disability and inidentifying who is a disabled person. Whererelevant, the guidance must be taken into accountin any legal proceedings.

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People who have been victimised

3.10 The Act also gives rights to people who have beenvictimised, whether or not they have a disability orhave had one in the past. (See paragraphs 7.2 to7.8.)

Students

3.11 The Act applies to any disabled people (includingthose overseas) who are enquiring about, orapplying for, admission to a course in GreatBritain, and any disabled students (including thoseoverseas) attending, undertaking or enrolled on acourse in Great Britain.

A disabled student from Germany applies to auniversity in Britain to undertake a year’s studyas part of his course. The British university has aduty not to discriminate against him when he isenquiring about the period of study, when he isapplying to the university, or whilst he isattending the university.

3.12 A student does not have to be undertaking acomplete course to have rights under the Act.Someone who is enquiring about, applying to,attending or undertaking a course of study at aneducational institution (however long or short thestudy period) is covered. This includes peopledoing single modules, evening courses ordistance learning. Similarly, anyone enquiringabout, applying to or enrolled on a course orusing recreational or training facilities provided bya local education authority (England and Wales) oreducation authority (Scotland) is protected by theAct.

s 55

s 31A(3)

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A disabled school pupil applies to do a tastercourse at her local further education college aspart of a programme to encourage young peopleto stay in learning after 16. The further educationcollege has a duty not to discriminate against herwhen she is enquiring about or applying for thetaster day, or during the day she attends thecollege.

A disabled adult learner decides to undertake adistance learning course in computer studiesprovided by a higher education institution. Thehigher education institution has a duty not todiscriminate against the learner when heenquires about or applies for the course, or whenhe is enrolled on the course.

Ex-students

3.13 The Act also applies to any disabled person whohas been a student. This is explained in greaterdetail in paragraphs 9.49 to 9.52.

Who has obligations under the Act?Education providers

3.14 Only those education providers listed in Chapter 2of Part 4 of the Act have duties under that chapter.Those that are not listed do not have duties underthe post-16 provisions of Part 4 but may haveduties under Chapter 1 (the schools provisions) ofPart 4 or under Part 3 (see paragraphs 3.19 to3.22).

3.15 The changes to Chapter 2 of Part 4 of the Act (thepost-16 provisions) that came into force inSeptember 2006 do not affect all of the post-16

s 28UA

s 28R(6) and (7)Sch 4C Para 1and 10

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education providers listed in the Act. There aretwo different sets of duties for two types of post-16 education providers.

3.16 The first set of duties apply to the followingeducation providers:

� institutions in the higher education sector

� institutions in the further education sectorand, in Scotland, colleges of further education

� local education authorities when securinghigher and further education, including adultand community education and, in Scotland,education authorities when securing furthereducation

� other specific institutions listed in regulations(see Chapter 11).

These duties are explained in detail in Chapters 3to 13 of this Code.

3.17 The second set of duties apply to the followingeducation providers:

� schools when providing further education foradults under s 58 of the School Standards andFramework Act 1998

� local education authorities when providingrecreational or training facilities (in Englandand Wales) and education authorities whenproviding recreational or training facilities (inScotland).

The duties that apply to these education providersare set out only in Appendix A.

Sch 4CPara 6 and 13

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3.18 Further details on all the education providerscovered by the post-16 sections of Part 4 are setout in Chapter 11.

Other providers of education

3.19 The post-16 sections of the Act do not apply toother providers of education, even if the provision,education or qualifications they offer are the sameas those offered by the organisations that arecovered. The key issue is whether the educationprovider itself is covered. If the provider is not oneof those listed above, the provision does not fallunder the post-16 sections of the Act. However, asis explained in the following paragraphs, thatprovider may have responsibilities under otherParts of the Act.

3.20 Schools providing sixth form education to pupilsover 16 have duties under the Schools provisionsof Chapter 1 of Part 4 of the Act. For further detailsof these duties see the Code of Practice: Schools.

3.21 Private providers of post-16 education, such asprivate colleges (other than those listed inregulations – see paragraph 3.14) or trainingproviders are not covered by Part 4 of the Act butby Part 3 of the Act. For further details of theseduties see the Code of Practice on Rights ofAccess: services to the public, public authorityfunctions, private clubs and premises.

3.22 Training and recreational facilities not provided bylocal education authorities (England and Wales) oreducation authorities (Scotland), such as clubsand activities run by voluntary organisations, theScouts or other youth clubs are not covered by thepost-16 sections of the Act. They are covered bythe Part 3 duties.

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A university in the USA offers its students theopportunity to study for a year in Great Britain.The students attend lectures and seminars in acollege in Great Britain owned and run by theirhome institution. This provision is not coveredby Part 4, but is likely to be covered by Part 3.

A private college offers a course in typing andshorthand leading to an examination. The courseand the qualification are identical to thoseoffered by a nearby further education college.However, the private college is not covered byPart 4 of the Act, but by Part 3.

A school sixth form provides further educationfunded by the Learning and Skills Council.However, the institution itself is not a college.The sixth form will be covered by the schoolssections of the Act and not the post-16 sections.

A voluntary organisation runs a youth club. Itreceives some funding from the local authority.However, the club is not part of Youth andCommunity Services and so falls within Part 3 ofthe Act, not Part 4.

A students’ union at a university is not aneducation provider under post-16 Part 4.Therefore any discrimination by a students’union will not be covered by Part 4 but by Part 3of the Act.

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Others to whom the post-16 provisions apply

3.23 In addition, the Act’s provisions on post-16education may also impose obligations upon thefollowing people and organisations:

� landlords of premises occupied by aneducation provider to whom the post-16provisions apply (see Chapter 12)

� employees and agents of an educationprovider to whom the post-16 provisionsapply (see Chapter 11).

Overlap with qualifications bodies

3.24 Professional bodies conferring professional ortrade qualifications have duties under Part 2 of theAct. For further details see the Code of Practice forTrade Organisations and Qualifications Bodies.From September 2007 general qualificationsbodies conferring general qualifications, such asGCSEs, will have duties under Part 4 of the Act.The overlap between post-16 education providersand bodies awarding qualifications is explained inmore detail in Chapter 11.

What does the Act say about discriminationin post-16 education?Effect of the Act

3.25 The Act makes it unlawful for an educationprovider to discriminate against a disabled personin relation to the provision of education andrelated services. The Act also makes it unlawfulfor an education provider to harass a disabledperson (see paragraph 3.32).

3.26 The Act does not prevent education providersfrom treating disabled people more favourably

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than those who are not disabled, although theremay be other legal obligations that affect this.

Forms of discrimination

3.27 The four forms of discrimination which areunlawful for education providers are:

� direct discrimination (explained in Chapter 4)

� failure to comply with a duty to makereasonable adjustments (explained inChapter 5)

� ‘disability-related discrimination’ (explained inChapter 6); and

� victimisation of a person (whether or not he isdisabled) (explained in Chapter 7).

Aspects of education in respect of whichdiscrimination is unlawful

3.28 In relation to admissions, the Act says that it isunlawful for an education provider to discriminateagainst a disabled person:

� in the arrangements made for determiningadmissions to the institution

� in the terms on which it offers to admit him tothe institution, or

� by refusing or deliberately omitting to acceptan application for his admission to theinstitution.

What this means in practice is explained inChapter 8.

3.29 In relation to ‘provision for students’, the Act saysthat it is unlawful for an education provider todiscriminate against a disabled student:

s 28R(1)

s 28R(2) and (3)

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� in the student services it provides, or offers toprovide

� by excluding him from the institution eitherpermanently or temporarily.

What this means in practice is explained inChapter 9.

3.30 In relation to qualifications conferred by theeducation provider, the Act says that it is unlawfulfor an education provider to discriminate against adisabled person:

� in the arrangements which it makes for thepurpose of determining upon whom to confera qualification

� in the terms on which it is prepared to confera qualification

� by refusing or deliberately omitting to grantany application by him for such aqualification; or

� by withdrawing such a qualification from adisabled person or varying the terms on whichhe holds it.

What this means in practice in relation to studentsis explained in Chapter 9, and in relation to non-students is explained in Chapter 10.

3.31 The Act also makes it unlawful for an educationprovider to discriminate against a disabled personafter the relationship between the educationprovider and the disabled person has come to anend (see paragraphs 9.49 to 9.52).

s 28R(3A)

s 28UA

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What else is unlawful under the Act’sprovisions on post-16 education?

Harassment

3.32 In addition to what it says about discrimination,the Act says it is unlawful for an educationprovider to subject a disabled person who is astudent at that institution, or seeks admission as astudent to that institution, to harassment for areason which relates to his disability. The Act alsosays that it is unlawful to subject a disabledperson who holds or applies for a qualificationconferred by the education provider toharassment. What the Act says about harassmentis explained in more detail in Chapter 7.

Instructions and pressure to discriminate

3.33 It is also unlawful for an education provider toinstruct another person, or put pressure on him, toact unlawfully under the post-16 provisions of Part4. This means pressure to discriminate, whetherapplied directly to the person concerned, orindirectly but in a way in which he is likely to hearof it. However, the Act does not give individualdisabled people the right to take legal action inrespect of unlawful instructions or pressure todiscriminate. Such action may only be taken bythe DRC (see paragraphs 13.11 to 13.12).

Who is liable for unlawful acts?

3.34 The legal responsibility for ensuring thatdiscrimination does not take place lies with theresponsible body for an education provider. Theremay also be instances when an educationprovider is responsible for the acts of others. Thisis explained in more detail in Chapter 11.

s 28SA

s 28UB ands 28VA

s 28R(5) andSch 4B

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Other provisionsTerms of agreements

3.35 Any term in an agreement is void (and thereforeunenforceable) if its effect is to:

� require someone to do something whichwould be unlawful under the Act

� exclude or limit the operation of the Act; orprevent someone making a claim under theAct.

A college requires a disabled student travellingon a field trip to sign an agreement stating thathe does not hold the college responsible formaking any adjustments to aspects of the tripbecause of his disability. This agreement is notlegally binding. Therefore it cannot be enforcedand does not prevent the student from making aclaim under the Act.

3.36 An agreement to settle or compromise a claimbrought under the Act is not affected by this rule.

What does the Act say about statutoryobligations?

3.37 An education provider is not required to doanything under the Act that will result in a breachof legal obligations under any other legislation orenactment. However, it is only in cases where astatutory obligation is specific in its requirements,leaving an education provider with no choiceother than to act in a particular way that theprovisions of the Act may be overridden. Thisprovision in the Act is of narrow application, and itis likely to permit disability discrimination only inrare circumstances. Nothing in the Act makes

s 28X

s 28X

s 59

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unlawful anything done for safeguarding nationalsecurity.

Enforcing rights under the post-16 provisions ofPart 4

3.38 Claims of disability discrimination under thepost-16 provisions of Part 4 are taken in thecounty court in England and Wales or the sheriffcourt in Scotland. More information aboutenforcement is given in Chapter 13.

Introduction to the different forms ofdiscrimination

3.39 Chapters 4, 5, 6 and 7 describe the four forms ofdiscrimination relevant to education providers inmore detail, and explain the differences betweenthem. They explore, in particular, the distinctionbetween direct discrimination and disability-related discrimination. These two forms ofdiscrimination both depend on the way in whichthe education provider treats the disabled personconcerned – both require the disabled person tohave been treated less favourably than otherpeople are (or would be) treated. However,whether such treatment amounts to one of theseforms of discrimination or the other (and, indeed,whether the treatment is unlawful in the firstplace) depends on the circumstances in which itarose.

3.40 The order in which the forms of discrimination aredescribed is not intended to indicate a hierarchy ofdiscrimination. Each form of discriminationconstitutes a breach of the Act and thereforeenables a disabled person to make a claim againstthe education provider. However, the order inwhich the forms of discrimination are describedmay provide a useful order in which to consider

s 28V

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the different forms to ascertain whether or notdiscrimination has taken place.

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Introduction

4.1 One of the ways in which an education providerdiscriminates against a disabled person is wherethe education provider treats the disabled personless favourably, on the grounds of his disability.This chapter examines this form of discrimination.

What does the Act say?

4.2 The Act says that an education provider’streatment of a disabled person amounts to directdiscrimination if:

� the treatment is on the ground of hisdisability, and

� the treatment is less favourable than the wayin which a person not having that particulardisability is (or would be) treated; and

� the relevant circumstances, including theabilities, of the person with whom thecomparison is made are the same as, or notmaterially different from, those of the disabledperson.

4.3 Direct discrimination depends on an educationprovider’s treatment of a disabled person beingless favourable on the ground of his disability, ascompared with the way in which the educationprovider treats (or would treat) an appropriatecomparator. If, on the ground of his disability, thedisabled person is treated less favourably than the

s 28S(10)

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4 What is direct discrimination?

comparator is (or would be) treated, the treatmentamounts to direct discrimination. (Identifying anappropriate comparator is explained in paragraph4.9.)

When is direct discrimination likely to occur?

4.4 Treatment of a disabled person is ‘on the groundsof’ his disability if it is caused by the fact that he isdisabled or has the disability in question.However, disability does not have to be the only(or even the main) cause of the treatmentcomplained of – provided that it is one of thereasons for the treatment.

4.5 If the less favourable treatment occurs because ofthe education provider’s generalised, orstereotypical, assumptions about the disability orits effects, it is likely to be direct discrimination.This is because an education provider would notnormally make such assumptions about a non-disabled person, but would instead consider hisindividual abilities. Decisions based on the factthat a person has a disability rather than on theeffects of the disability are likely to be directdiscrimination. In addition, less favourabletreatment which is disability-specific, or whicharises out of prejudice about disability (or about aparticular type of disability), is also likely toamount to direct discrimination.

A blind woman is not offered a place on an ITcourse because the education provider wronglyassumes that blind people cannot usecomputers. The education provider makes noattempt to look at her individual circumstancesor abilities but makes an assumption based onthe fact she is blind. The education provider hastreated the woman less favourably than other

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people by not offering her a place on the course.The treatment was on the grounds of thewoman’s disability (because assumptions wouldnot have been made about a non-disabledperson). This is likely to be direct discriminationand therefore unlawful.

A lecturer seeking to appoint a studentrepresentative for a course rejects an applicationfrom a disabled student with a severe facialdisfigurement solely on the ground that otherstudent representatives might be uncomfortableworking alongside him. This is likely to amountto direct discrimination and therefore to beunlawful.

A disabled woman who uses a wheelchairapplies for a history course. She has the samequalifications as other applicants, but theeducation provider wrongly assumes that thewheelchair will cause an obstruction in thelecture rooms. Therefore she is not offered aplace on the course. Other applicants with thesame qualifications but who are not wheelchair-users were offered places. This is likely toamount to direct discrimination and therefore beunlawful.

4.6 Direct discrimination will often occur where theeducation provider is aware that the disabledperson has a disability, and that is the reason forthe education provider’s treatment of him.However, direct discrimination may also occureven though the education provider is unaware ofa person’s disability.

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A lecturer makes it clear that progression ontothe next stage of a course will requirecommitment and good attendance. The lecturerrecommends that people who have mentalhealth conditions, the effect of which may resultin problems with attendance, should considerwhether the course would be suitable for them. Astudent on the course who did not attend anumber of sessions during the previous year ofthe course due to periods of depression decidesto leave the course because of the comments.This is likely to amount to direct discriminationand therefore be unlawful.

4.7 Direct discrimination need not be conscious –people may hold prejudices that they do notadmit, even to themselves. Thus, a person maybehave in a discriminatory way while believingthat he would never do so. In some cases,apparently neutral reasons for less favourabletreatment of a disabled person may, oninvestigation, turn out to be direct discrimination.

A student with a speech impairment is studyingfor a politics degree. A lecturer does not enterthe student as a candidate for a debating sessionbecause he assumes that students with speechimpairments would have difficulty participating.Although the lecturer had good intentions whenmaking this assumption, the effect was to treatthe disabled student less favourably on thegrounds of his disability. The act of directdiscrimination in this case is the assumption thatanyone who has a speech impairment wouldhave difficulty participating in a debatingsession, effectively rejecting a whole category ofpeople with no consideration for their individualabilities.

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4.8 In situations such as those described in the aboveexamples, it will often be readily apparent that thedisabled person concerned has been treated lessfavourably on the grounds of his disability. Inother cases, however, this may be less obvious.The way of telling whether or not the treatment isdiscriminatory (and of establishing what kind ofdiscrimination it is) is to focus on the person withwhom the disabled person should be compared.

Identifying comparators for directdiscrimination

4.9 In determining whether a disabled person hasbeen treated less favourably in the context ofdirect discrimination, his treatment must becompared with that of an appropriate comparator.This must be someone who does not have thesame disability. It could be a non-disabled personor a person with other disabilities. The comparatormay be real or hypothetical (see paragraph 4.15).

Student A who has a mental health condition isabsent from his course for one term because ofhis disability, and is removed from the course.Non-disabled student B who is also absent forone term because of a family bereavement is notremoved from the course. Student C is awheelchair user who is also absent for one termbecause of a family bereavement and is notremoved from the course. On the face of it thisappears to be less favourable treatment on thegrounds of student A’s disability. Student B ispotentially an appropriate comparator as he isnot disabled. Similarly student C is potentially anappropriate comparator as he has a differentdisability.

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Relevant circumstances

4.10 An appropriate comparator is one whose relevantcircumstances, including his abilities, are thesame as, or not materially different from, those ofthe disabled person. There is no need to find acomparator whose circumstances are the exactlysame as those of the disabled person in everyrespect. The comparator’s relevant circumstances(including his abilities) must be the same as, ornot materially different from, those of the disabledperson.

In the previous example, the relevantcircumstances are the course and period ofabsence. Both student B and student C have thesame relevant circumstances as student A andtherefore either is an appropriate comparator.

4.11 In order to identify an appropriate comparator it isnecessary to first identify the relevantcircumstances in respect of the less favourabletreatment complained of. It is important thereforeto focus on those circumstances which are, in fact,relevant to the matter to which the less favourabletreatment relates.

A disabled person who has an impairment thataffects her dexterity is not entered for an exambecause her handwriting speed is slower thanthat of her peers. The relevant circumstance inthis instance is the writing speed. Therefore, thecorrect comparator would be a person nothaving the dexterity-related impairment whowrites at the same speed.

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A wheelchair user with one GCSE is not acceptedon a business studies A level because the entryrequirements onto the course require applicantsto have two GCSEs. The correct comparator is aperson who is not a wheelchair user who alsohas one GCSE.

A disabled person with schizophrenia applies fora place on a course at his local college anddeclares his history of mental illness. The collegerefuses him a place. The decision is based onassumptions about the effects of schizophrenia,without adequate consideration of theindividual’s abilities and the impact of theimpairment in his particular case. Thecomparator here is a person who does not haveschizophrenia, but who has the same abilities todo the course (including relevant qualificationsand experience) as the disabled applicant. Such aperson would not have been rejected withoutadequate consideration of his individual abilities.

4.12 In some cases, the effects of the disability may berelevant; however, the fact of the disability itself isnot a relevant circumstance for these purposes.This is because the comparison must be with aperson not having that particular disability.

An education provider does not accept a womanwith cerebral palsy onto a course in carmaintenance because the course requires a levelof manual dexterity which she does not have.The correct comparator is someone who doesnot have cerebral palsy but has a similar level ofmanual dexterity and is accepted onto thecourse.

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4.13 If a disabled person alleges that he has beenrefused a place on a course on the grounds of hisdisability, it is only appropriate to compare thoseof his circumstances which are relevant to hisability to do the course. It is not appropriate tocompare other circumstances which are notrelevant to this issue. The need to focus onrelevant circumstances applies not only toadmissions cases of this kind, but also to anyother situation where direct discrimination mayhave occurred.

In the above example, the speech of theapplicant is also affected by her cerebral palsy.The course does not require clarity of speech.The comparator in a claim for directdiscrimination would be an applicant with asimilar level of manual dexterity but it would notbe necessary for the comparator to have aspeech impairment (because the way in whichthe applicant speaks is not relevant to theapplicant’s ability to do the course).

4.14 Once an appropriate comparator is identified, thesituations described in the examples at paragraph4.5 and 4.11 could amount to directdiscrimination.

In the example about the blind woman who isnot offered a place on the IT course, there isdirect discrimination because the woman wastreated less favourably on the grounds of herdisability than an appropriate comparator (thatis, a person who is not blind but who has thesame abilities to do the course as the blindapplicant). Such a person would not have beenrejected out of hand without consideration of herindividual abilities.

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In the example about the disabled person with asevere facial disfigurement who applies to be astudent representative, there is directdiscrimination because the student was treatedless favourably on the grounds of his disabilitythan an appropriate comparator (that is, a personwho does not have such a disfigurement but whodoes have the same abilities to do the job). Sucha person would not have been rejected in thesame way.

In the example about the disabled woman who isnot offered a place on a history course becauseshe uses a wheelchair, there is directdiscrimination because the woman was treatedless favourably on the grounds of her disabilitythan an appropriate comparator (that is, a personwho does not use a wheelchair but who does havethe same abilities to do the course). Such a personwould not have been rejected in the same way.

In the example about the disabled person who isnot entered for an exam because herhandwriting is slower than that of her peers, thiswould be direct discrimination if another personwho does not have the same impairment butwith a similar writing speed was or would havebeen entered for the exam.

In the example about the wheelchair user notaccepted on a business studies A level. Thiswould be direct discrimination if anotherapplicant, who was not a wheelchair user, withonly one GCSE was accepted or would havebeen accepted onto the course.

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In the example about the disabled person withschizophrenia refused a place on a course, thereis direct discrimination because the disabledperson was treated less favourably on thegrounds of his disability than an appropriatecomparator (that is, a person with the sameabilities).

4.15 It may not be possible to identify an actualcomparator whose relevant circumstances are thesame as (or not materially different from) those ofthe disabled person in question. In such cases ahypothetical comparator may be used. Evidencewhich helps to establish how a hypotheticalcomparator would have been treated is likely toinclude details of how other people were treatedin circumstances which were broadly similar.

In the example at 4.9, student A is removed fromhis course due to his absence from the course forone term because of his mental health condition.If, in a similar situation, there was no actualcomparator, such as students B and C, but astudent on the course was told that she couldhave time off for pregnancy leave, then thetreatment of this student might be used asevidence that a hypothetical non-disabledstudent who misses a term would not have beenremoved from the course.

4.16 It should be noted that the type of comparatordescribed in the preceding paragraphs is onlyrelevant to disability discrimination whenassessing whether there has been directdiscrimination. A different comparison is madewhen assessing whether there has been a failureto comply with a duty to make reasonable

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adjustments (see Chapter 5) or when consideringdisability-related discrimination (see Chapter 6).

Relevance of reasonable adjustments tocomparison

4.17 When comparing a disabled person’s abilities withanother person’s abilities to consider whether ornot direct discrimination has occurred, thedisabled person’s abilities should be assessed asthey in fact are, whether or not reasonableadjustments have been made.

4.18 In some cases there will be particular reasonableadjustments which an education provider wasrequired by the Act to make, but in fact failed tomake. It may be that those adjustments wouldhave had an effect on the disabled person’sabilities. But in making the comparison, thedisabled person’s abilities should be considered asthey in fact were, and not as they would or mighthave been had those adjustments been made.(The failure to make reasonable adjustments maygive rise to a separate claim. The duty to makereasonable adjustments is explained in Chapter 5.)

4.19 On the other hand, if adjustments have in factbeen made which have had the effect ofenhancing the disabled person’s abilities, then it isthose enhanced abilities which should beconsidered. The disabled person’s abilities arebeing considered as they in fact are (and not asthey might have been if the adjustments had notbeen made).

An applicant for a degree course is required to sitan entrance test. The applicant is visuallyimpaired and requires the test paper in anenlarged font. The university does not provide

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the test paper in the font requested. The applicantdoes not pass the test and is not offered a placeon the course. This is not direct discrimination, asthe comparator would be a non-disabled personwho also failed the test. (But the disabled personwould be likely to have good claims in respect oftwo other forms of discrimination; failure to makereasonable adjustments and disability-relateddiscrimination.)

Another disabled person with a visualimpairment who applies for the course and hasto sit the test is allowed to have the test papers inan enlarged font and passes the test. However,the disabled candidate is rejected although non-disabled applicants with the same test score asher were offered places. This is likely to amountto direct discrimination, as the comparator wouldbe a person not having a visual impairment whoachieved the same test score.

Can direct discrimination be justified?

4.20 Treatment of a disabled person which amounts todirect discrimination under the Act’s provisions inPart 4 is unlawful. It can never be justified.

What happens if direct discriminationoccurs?

4.21 Where an education provider directlydiscriminates against a disabled applicant orstudent in relation to matters covered by Chapter2 of Part 4 of the Act, it will be committing an actof unlawful discrimination. A disabled person willbe able to make a claim based on this (seeChapter 13 for more details about claims).

s 28S(9)

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What evidence is needed to prove thatdirect discrimination has occurred?

4.22 Paragraph 3.38 explains that claims of disabilitydiscrimination under the Act’s provisions on post-16 education take place in the county court(England and Wales) or sheriff court (Scotland). Aperson who brings a claim for unlawfuldiscrimination must show that discrimination hasoccurred. He must prove this on the balance ofprobabilities in order to succeed with a claim inthe court.

4.23 The Act says that, when such a claim is heard by acourt, the courtmust uphold the claim if:

� the claimant proves that he is covered by thedefinition of disability; and

� the claimant proves facts from which the courtcould conclude in the absence of an adequateexplanation that the person against whom theclaim is made (the defendant) has actedunlawfully; and

� the defendant fails to prove that he did not actin that way.

4.24 Where a disabled person is able to prove on thebalance of probabilities facts from which aninference of unlawful discrimination could bedrawn, the burden of proof shifts to the defendant.This means that the education provider mustshow that it is more likely than not that its conductwas not unlawful. Its practical effect in relation todirect discrimination can be summarised asfollows:

� To prove an allegation of directdiscrimination, a claimant must prove facts(from all the evidence before the court) from

s 28V(1A)

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which it could be inferred in the absence of anadequate explanation that he has been treatedless favourably by the defendant on thegrounds of his disability than an appropriatecomparator has been, or would be, treated.

� If the claimant does this, the claim willsucceed unless the education provider canshow cogent and persuasive reasons thatdisability was not any part of the reason forthe treatment in question.

For the purposes of direct discrimination claims,the test to determine upon whom the burden ofproof lies should in practice comprise a two-stageprocess, but the court hearing does not have to besplit into two similar stages. Instead, thesematters should be addressed in the courtjudgment after the respective parties have givenevidence and made submissions.

A disabled student is not awarded a qualificationdespite having obtained the same scores in thecourse assessments as another student who wasawarded the qualification. The onus is on theeducation provider to demonstrate that thereason for not awarding the qualification was anon-discriminatory one. If the educationprovider is unable to demonstrate this unlawfuldiscrimination will be inferred in thesecircumstances.

4.25 The fact that there has been a failure to complywith a relevant provision of the Code must betaken into account by a court, where it considers itrelevant, in determining whether there has beendiscrimination or harassment (see paragraph1.13).

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Introduction

5.1 One of the ways in which an education providerdiscriminates against a disabled person is byfailing to comply with the duty to makereasonable adjustments for the benefit of adisabled person. This chapter examines thecircumstances in which a duty to make reasonableadjustments arises and outlines what aneducation provider must do in order to dischargethe duty. It also sets out the factors to be takeninto account when determining what a reasonableadjustment is and finally considers competencestandards.

5.2 The duty to make reasonable adjustments is acornerstone of the Act and requires educationproviders to take positive steps to ensure thatdisabled people can access education and relatedservices. This goes beyond simply avoidingtreating disabled people less favourably and insome cases it may also mean taking additionalsteps to which non-disabled people are notentitled. Many reasonable adjustments areinexpensive and in some cases Disabled Students’Allowances or other funding will be available tocover some of the costs.

What is the duty to make reasonableadjustments?

5.3 Education providers have a duty to take suchsteps as it is reasonable for them to have to take

s 28T

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5 What is the duty to make reasonableadjustments?

in all the circumstances of the case in thesituations described below. The duty to makereasonable adjustments arises where:

� a provision, criterion or practice, other than acompetence standard, applied by or on behalfof the education provider; or

� any physical feature of premises occupied bythe education provider,

places disabled persons at a substantialdisadvantage compared with people who are notdisabled. An education provider has to take suchsteps as it is reasonable for it to have to take in allthe circumstances to prevent that disadvantage –in other words the education provider has to makea ‘reasonable adjustment’. There is no justificationunder the DDA for a failure to make a reasonableadjustment.

5.4 The duty applies in relation to a provision,criterion or practice, other than a competencestandard:

� relating to the arrangements an educationprovider makes for determining admissions tothe institution

� relating to student services provided for, oroffered to, students by the education provider

� relating to the conferment of qualifications bythe education provider.

5.5 The duty also applies where any physical featureof the education provider’s premises places adisabled person at a substantial disadvantage incomparison with persons who are not disabledwhen the disabled person:

s 28T(1) and28T(1A)

s 28T(1C) and(1D)

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� seeks admission to that education provider

� is a student at that education provider

� applies for a qualification which the educationprovider confers

� holds a qualification which was conferred bythe education provider.

A wheelchair user applies for a three-year degreecourse at a large university. Many of the mainentrances to the department where the student’slectures will be held, and a number of the studentfacilities, are inaccessible. This means that thestudent has to access these buildings through‘service entrances’ at the back of buildings.Although the university thinks it has made areasonable adjustment by allowing access via the‘service entrances’, the duty has not in fact beendischarged. This is because the student stillexperiences substantial disadvantage using the‘service entrances’ in that it takes longer to enterthe building through this route, these entrancesare difficult to navigate and the student isseparated from her peers. It may be reasonablefor the university to take steps to make the mainentrance to these buildings accessible or torearrange the lecture timetable so they are heldin an accessible building.

5.6 The duty also covers some disabled people whoare no longer students. The circumstances inwhich this arises are considered in paragraphs9.49 to 9.52.

5.7 It does not matter if a disabled person cannotpoint to an actual non-disabled person comparedwith whom he is at a substantial disadvantage.The issue is whether the provision, criterion or

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practice, or physical feature, places disabledpersons at a substantial disadvantage.

What disadvantages give rise to the duty?

5.8 The Act says that only substantial disadvantagesgive rise to the duty. Substantial disadvantagesare those which are not minor or trivial. Given thatthe duty to make reasonable adjustments refers to‘disabled persons’ what matters is that aprovision, criterion or practice, or a physicalfeature is capable of causing a substantialdisadvantage to the disabled person in question.Whether it actually has this effect on him in aparticular case is a question of fact.

A sixth form college has several sites andstudents are required to move between sites toattend different classes. This is likely to placestudent with mobility difficulties at a substantialdisadvantage as they may find it difficult to movebetween sites and arrive late for classes andtherefore give rise to the duty to makereasonable adjustments.

To whom is the duty to make reasonableadjustments owed?

5.9 An education provider’s duty to make reasonableadjustments is an anticipatory duty owed todisabled people and students at large. It does notonly arise when an individual disabled studentpresents himself to the education provider.Disabled people are a diverse group with differentrequirements that education providers need toconsider strategically.

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All teaching staff at a college produce all theirhandouts in electronic form so that they caneasily be converted into large print or put intoother alternative formats. The staff areanticipating reasonable adjustments that mightneed to be made.

A small college that is unable to employ a largenumber of specialist staff ensures it has closelinks with other organisations so that it is able tocall on specialist support workers (for example,for learners who are dyslexic) when the needarises. It therefore anticipates reasonableadjustments that it might need to make if it hasapplications from disabled students.

A university encourages its lecturers to putlecture notes on the institution intranet. Itintroduces new procedures to ensure that allnotes put on the intranet meet establishedguidelines to ensure that there is no conflict withspecialist software or features that students withdyslexia may be using. It therefore anticipatesreasonable adjustments that it might need tomake for certain disabled students.

A college makes its budget allocations todepartments at the beginning of the year.Because it knows that the need for unexpectedreasonable adjustments may arise at any timeduring the year, it sets aside an amount forunanticipated adjustments, in addition tocovering costs through a central budget foradjustments. It therefore anticipates that it mayneed to make reasonable adjustments.

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5.10 The issue of anticipatory reasonable adjustmentsis particularly relevant in respect of buildings,whether these are owned, rented or leased.

A university ensures that its Estates Departmentis thoroughly briefed on all aspects of physicalaccess through carrying out access audits of itspremises. Each time building works areundertaken a further assessment is made of howthe building can be made more accessible. Forexample, when an area is repainted thedepartment ensures it is using colour contrasts,which will help students with a visualimpairment. It also carries out an acoustic auditto ensure it is responding appropriately to deafstudents. The university is anticipatingreasonable adjustments that might need to bemade.

At what point does the duty to makereasonable adjustments arise?

5.11 Education providers should not wait until adisabled person approaches them before theygive consideration to their duty to makereasonable adjustments. Education providersshould be planning continually for the reasonableadjustments they need to make, whether or notthey have disabled students. They shouldanticipate the requirements of disabled peopleand the adjustments that may have to be made forthem. In many cases, it is appropriate to askstudents to identify whether they have anyparticular requirements and, if so, whatadjustments may need to be made. Failure toanticipate the need for an adjustment may resultin it being too late to comply with the duty tomake the adjustment when a disabled person

s 28T

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requires it and therefore constitute a failure todischarge the duty.

A further education institution advertises acourse available for all staff to receive deafawareness training, even though there arecurrently no students at the institution whowould be classified as deaf. Staff attendance onthe course results in attracting deaf students tothe institution and it increases courseapplications. It is also one way that the institutionmakes reasonable adjustments in advance ofdeaf students attending the college.

The admissions office and the disability office ata higher education institution work together toensure that the institution’s admissions processis as accessible as possible and that applicationsand arrangements for admissions ask whetherthe student requires any reasonableadjustments.

Must education providers anticipate everybarrier?

5.12 Education providers cannot be expected toanticipate the needs of every prospective student,but they are required to think about and takereasonable steps to overcome barriers that mayimpede persons with particular kinds of disability– for example, people with visual or mobilityimpairments.

5.13 When considering the provision of a reasonableadjustment, an education provider should beflexible with its approach. However, there may besituations where it is not reasonable for an

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education provider to anticipate a particularrequirement. Education providers are expected toanticipate the specific adjustments required bysome individuals.

An education provider does not produceexamination papers in large font as it is notaware that any students have a visualimpairment. However, should a student requiresuch a paper, this is an adjustment that is easilyforeseeable and it is likely to be reasonable forthe education provider to provide it.

5.14 Once an education provider has become aware ofthe requirements of a particular disabled studentor applicant, it might then be reasonable for theeducation provider to take a particular step tomeet these requirements. This is especially sowhere a disabled person has pointed out thedifficulty that he or she faces in accessingservices, or has suggested a reasonable solutionto that difficulty.

A university anticipates that some deaf studentswill require the use of BSL interpreters andensures it has access to BSL interpreters at shortnotice. However, a student who arrives at theuniversity uses American Sign Language (ASL)and had not previously notified the university ofthis. As soon as the university is aware of this itshould make the necessary reasonableadjustment by seeking an ASL interpreter, eventhough it may not have been reasonable to havearrangements with an ASL interpreter before thestudent arrives.

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How can education providers identifypossible adjustments to physical features?

5.15 Education providers are more likely to be able tocomply with their duty to make adjustments inrelation to physical features if they arrange for anaccess audit of their premises to be conductedand draft an access plan or strategy. Acting on theresults of such an audit may reduce the likelihoodof successful legal claims against the educationprovider.

5.16 In carrying out an audit, it is recommended thateducation providers seek the views of people withdifferent disabilities, or those representing them,to assist in identifying barriers and developingeffective solutions. Education providers can alsodraw on the extensive experience of local andnational disability groups or organisations ofdisabled people.

How long does the duty continue?

5.17 The duty to make reasonable adjustments is acontinuing duty. Education providers should keepthe duty under regular review in light of theirexperience with disabled people applying forcourses and using student services. In this respectit is an evolving duty, and not something thatneeds simply to be considered once and thenforgotten. What was originally a reasonable stepto take might no longer be sufficient and theprovision of further or different adjustments mightthen have to be considered.

5.18 Equally, a step that might previously have been anunreasonable one for an education provider tohave to take could subsequently become areasonable step in light of changed circumstances.For example, technological developments may

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provide new or better solutions to the difficultiesfaced by disabled people.

Which disabled people does the dutyprotect?

5.19 The anticipatory duty to make reasonableadjustments applies in admissions and in allstudent services. It may also apply after thedisabled person has left the education institution(see paragraphs 9.49 to 9.52). In addition there is aduty to any disabled person who applies for orholds a qualification conferred by the educationprovider (see Chapter 10).

What if the education provider does notknow that the person is disabled, or is anactual or potential student?

5.20 Although education providers have a duty to thinkahead and to anticipate what reasonableadjustments may be needed for disabled people ingeneral (see paragraphs 5.9 to 5.14), an educationprovider will only discriminate against anindividual disabled person in respect of a failure tomake reasonable adjustments if:

� it knows, or could reasonably be expected toknow, that the person has a disability and islikely to be placed at a substantialdisadvantage, and

� the failure to make the adjustment wasattributable to that lack of knowledge.

The education provider must, however, do all itcan reasonably be expected to do to find outwhether this is the case. The action that it isappropriate to take to find out about a person’sdisability may differ between different types of

s 28S(3)

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provision. The government has issued guidanceon the reasonable action an education providershould take to find out about people’s disabilities(see Appendix C). If an education provider canshow that it did not know, and could notreasonably have been expected to know that theperson was disabled, it can defend the failure tomake reasonable adjustments for that individualperson.

5.21 An education provider should be proactive inencouraging people to disclose a disability. Thismight involve:

� asking applicants to courses to declare theirdisabilities on application and enrolmentforms

� publicising the provision that is made fordisabled people, or providing opportunitiesfor students to tell tutors/teachers or otherstaff in confidence

� asking students once they are on the coursewhether they need any specific arrangementsbecause of a disability

� explaining to students the benefit ofdisclosure and how this information will bekept confidential

� ensuring that the atmosphere and culture atthe institution or service is open andwelcoming so that disabled people feel safe todisclose a disability.

A university ensures that all students whodeclare a disability on their application form aregiven the opportunity to discuss their reasonableadjustment requirements with an appropriatemember of staff and are made aware of who they

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should approach if their requirements change orthey experience any difficulties relating to theirdisability that may cause them to be at asubstantial disadvantage.

5.22 The duty to take steps to find out about people’sdisabilities and potential substantial disadvantageapplies equally to a disabled person who is anactual or potential applicant for a course orqualification conferred by the education provider.

5.23 If the education provider might reasonably havebeen expected to know or find out about aperson’s disability, then it cannot defend thefailure to make reasonable adjustments on thegrounds that it did not know that the person wasdisabled.

5.24 If an education provider’s agent or employee (suchas a student adviser, or an admissions officer)knows, in that capacity, of a person’s disability, theeducation provider will not usually be able toclaim that it does not know of the disability, andthat it therefore has no duty to make a reasonableadjustment. Education providers therefore need toensure that where information about disabledpeople may come through different channels,there is a means which is suitably confidential forbringing the information together, to make iteasier for the education provider to fulfil its dutiesunder the Act. All staff should be aware of theaction they should take if they become aware thata student or applicant is disabled.

A student at a large university tells a universitylibrarian that she has a disability. Theuniversity’s teaching and learning arrangements

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put the student at a substantial disadvantagebecause of the effects of her disability and thestudent claims that a reasonable adjustmentshould have been made. It would not be adefence for the higher education institution toclaim that it did not know of her disability. This isbecause the librarian’s knowledge means that theeducation provider’s duty under the Act applies.

A student declares that he is disabled on hisapplication form for his part-time college courseand notes that due to his hospital appointments,he may not be able to attend all elements of thecourse. Although the admissions office knowsthat the student might have a disability under theAct, it does not pass this information on to thetutors who teach the course. The college cannotclaim that it did not know about the disability andso is likely to be acting unlawfully if it fails tomake a reasonable adjustment.

5.25 Information will not be imputed to the educationprovider if it is gained by a person providingservices to students independently of theeducation provider. This is the case even if theeducation provider has arranged for thoseservices to be provided.

An education provider arranges for students tobe allowed to use a local information, advice andguidance service in addition to its own in-houseservice. The agreement states that the localservice is not acting on behalf of the educationprovider in allowing students to use the service.Any information about a student’s disabilityobtained by an adviser during the student’s use

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of the service would not be passed on to theeducation provider. Therefore the educationprovider would not have breached the duty tomake reasonable adjustments if the student hadtold the local service but not the educationprovider that he was disabled.

Confidentiality and reasonable adjustments

5.26 A disabled person has a right to request that theexistence or nature of his or her disability betreated as confidential. In determining whether itis reasonable to make an adjustment theresponsible body must have regard to the extentthat making the adjustment is consistent with adisabled person’s request for confidentiality.

5.27 In some instances this might mean thatreasonable adjustments have to be provided in analternative way in order to ensure confidentiality.

A student with a visual impairment can only readclearly if he has text enlarged into 16-point type.He has requested strict confidentiality. Normallyhis tutors would give a visually impaired studentlarge-print handouts at the beginning of eachclass. However, because he has asked the tutorsnot to tell any of his fellow students about hisdisability or to draw attention to it in any way,they agree to give him his handouts in advanceso that he can look at them before the lesson butdoes not have to be seen reading them duringthe class.

5.28 In some cases a confidentiality request mightmean that a less satisfactory reasonable

s 28T(3), (4)and (5)

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adjustment is provided or that no reasonableadjustment can be provided.

A student with AIDS is on a chemical engineeringcourse. He does not want other students to knowof his condition. His condition means that hesometimes needs to have time off. His tutorshave offered to arrange extra time in thelaboratory for him after hours to make up for thetime he misses. However, he has refused thisbecause he thinks it would draw attention to himand his condition. Instead they offer to providehim with extra lecture notes. Although thisadjustment may be less effective, it is likely to belawful.

What are ‘provisions, criteria andpractices’?

5.29 Provisions, criteria and practices are broad termswhich cover all of an education provider’sarrangements, policies, procedures and activities.The duty to make reasonable adjustments applies,for example, to selection and admissionsprocedures and to examination and assessmentprocedures used by education providers.

A student with a visual impairment has difficultyusing the IT services at his university because hisscreen reading software is not easily compatiblewith the IT system and does not allow him toupload the software. He raises this issue with theIT department, who agree to make changes tothe system so that the software is compatibleand install the screen reading softwarepermanently on his user account. This is likely tobe a reasonable adjustment to the way in whichthe university provides access to IT facilities.

s 31A(5)

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A college has limited car parking space close totheir main site. Car parking spaces are reservedfor staff, whilst students can use a car park that isa short distance away. A student who has amobility impairment and needs to park near tothe college, is given a designated car parkingspace in the staff car park. This is likely to be areasonable adjustment to the college’s carparking policy.

What is a ‘physical feature’?

5.30 The Act says that the following are to be treatedas a physical feature:

� any feature arising from the design orconstruction of a building on the premisesoccupied by the education provider

� any feature on the premises of any approachto, exit from, or access to such a building

� any fixtures, fittings, furnishings, furniture,equipment or materials in or on the premises,and

� any other physical element or quality of anyland comprised in the premises occupied bythe education provider.

All these features are covered, whether temporaryor permanent. Considerations which need to betaken into account when making adjustments topremises are explained in Chapter 12.

The design of a particular classroom makes itdifficult for someone with a hearing impairmentto hear, because it is a large room and has hard

s 31A(10)

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flooring which means that sound echoes. That isa substantial disadvantage caused by thephysical features of the education provider’spremises.

Clear glass doors at the end of a corridor in acollege present a hazard for a visually impairedstudent. This is a substantial disadvantagecaused by the physical features of the college.

5.31 Physical features will include steps, stairways,kerbs, exterior surfaces and paving, parking areas,building entrances and exits (including emergencyescape routes), internal and external doors, gates,toilet and washing facilities, lighting andventilation, lifts and escalators, floor coverings,signs, furniture, and temporary or movable items.This is not an exhaustive list.

What is the duty in relation to confermentof qualifications for non-students?

5.32 In addition to the duty in relation to admissionsand arrangements and student services, educationproviders also have a duty to make reasonableadjustments for disabled people who are notstudents but apply for the conferment of aqualification or hold a qualification conferred bythe education provider.

5.33 The duty applies in relation to a provision,criterion or practice, other than a competencestandard, for determining on whom a qualificationis to be conferred which places a disabled personat a substantial disadvantage. This duty onlycovers a disabled person who has applied for theconferment of a qualification or has notified the

s 28T(1A)

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education provider that he may apply for theconferment of a qualification. This duty onlyapplies to disabled persons who are not studentsand who are therefore not covered by the dutiesdescribed in paragraph 5.4.

A university routinely awards Masters degrees topeople who have previously completed and beenawarded an undergraduate degree. The processfor obtaining the Masters degree is to apply tothe university in writing. A disabled personwishes to apply for a Masters degree but findscompleting written applications very difficult. Itwould be a reasonable adjustment for theuniversity to allow the disabled person to applyby telephone.

5.34 The duty also applies in relation to any otherprovision, criterion or practice (other than fordetermining to whom a qualification should beawarded and other than a competence standard)which places a disabled person at a substantialdisadvantage. This duty covers a disabled personwho holds a qualification conferred by theeducation provider or applies for a qualificationwhich the education provider confers. This dutyonly applies to disabled persons who are notstudents and therefore not covered by the dutiesdescribed in paragraph 5.4.

When is it ‘reasonable’ for an educationprovider to have to make adjustments?

5.35 Whether it is reasonable for an education providerto make any particular adjustment will depend ona number of things, such as its cost andeffectiveness. However, if an adjustment is onewhich it is reasonable to make, then the educationprovider must do so. Where disabled persons are

s 28T(1B)

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placed at a substantial disadvantage by aprovision, criterion or practice of the educationprovider, or by a physical feature of the premisesit occupies, the education provider must considerwhether any reasonable adjustments can be madeto overcome that disadvantage. There is no onuson the disabled person to suggest whatadjustments should be made (although it is goodpractice for education providers to ask) but, wherethe disabled person does so, the educationprovider must consider whether such adjustmentswould help overcome the disadvantage, andwhether they are reasonable. For disabledstudents in higher education an assessment forDisabled Students’ Allowance is likely to be afactor to take into account when determiningappropriate reasonable adjustments but it is notdeterminative (see paragraphs 5.54 and 5.55).

5.36 Effective and practicable adjustments for disabledpeople often involve little or no cost or disruptionand are therefore very likely to be reasonable foran education provider to have to make. Even if anadjustment has a significant cost associated withit, it may still be cost-effective in overall terms –and so may be a reasonable adjustment to make.Many adjustments do not involve making physicalchanges to premises. However, where suchchanges do need to be made, education providersmay need to take account of the considerationsexplained in Chapter 12 which deals with issuesabout making alterations to premises.

5.37 The Act does not specify that any particularfactors should be taken into account whendetermining what is reasonable. What is areasonable step for a particular education providerto have to take depends on all the circumstancesof the case. It will vary according to a number offactors including:

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� whether taking any particular steps would beeffective in overcoming the difficulty thatdisabled people face in accessing the studentservices in question

� the type of service being provided

� the nature of the institution or service and itssize and resources

� the effect of the disability on the individualdisabled person or student

� the extent to which it is practicable for theeducation provider to take the steps

� the financial and other costs of making theadjustment

� the financial resources available to theeducation provider

� the availability of grants, loans and otherassistance to disabled students (and onlydisabled students) for the purpose of enablingthem to receive student services (such asDisabled Students’ Allowances)

� the extent to which aids and services willotherwise be provided to disabled people orstudents

� health and safety requirements; and

� the relevant interests of other peopleincluding other students.

5.38 Without attempting to be exhaustive, these arefactors that might be taken into account whenconsidering what is reasonable. These factorsmake a useful checklist, particularly whenconsidering more substantial adjustments. Theeffectiveness and practicability of a particularadjustment should be considered first. If it ispracticable and effective, the financial aspects

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should be looked at as a whole – the cost of theadjustment and resources available to fund it.Furthermore, an appropriate balance has to bestruck between financial considerations anddisabled people’s access to education andassociated services. Other factors listed above andbelow might also have a bearing.

The effectiveness of the step in preventingthe disadvantage

5.39 It is unlikely to be reasonable for an educationprovider to have to make an adjustment involvinglittle benefit in reducing the disadvantageexperienced by the disabled person.

A wheelchair user cannot access classes on acourse that take place on the higher floor levelsof the small college he attends. There isn’t anaccessible lift between floors in the collegepremises and it is unlikely to be reasonable forthe education provider to install an accessiblelift. Instead of relocating classes to an accessiblefloor, so that the student can attend the coursewithout experiencing substantial disadvantage,the college asks the wheelchair user to change toa different course where classes are held at anaccessible floor level. This step would not beeffective in preventing the disadvantageexperienced in relation to the course thewheelchair user has chosen to undertake.

5.40 However, an adjustment which, taken alone, is ofmarginal benefit, may be one of severaladjustments which, when looked at together,would be effective. In that case, it is likely to bereasonable to have to make it. Effective stepsmight not always be the most obvious steps.

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The type of service being provided

5.41 What is appropriate in one setting might not beappropriate in another setting. Clearly moreextensive adjustments may be consideredreasonable when they facilitate access to coreservices. It is more likely to be reasonable for aneducation provider to have to make anindividualised adjustment with significant costsfor a student who is likely to be at the institutionfor some time than for a temporary student.

The nature of the institution or service andits size and resources

5.42 An education provider, such as a university, withgreater resources may be required to make moreexpensive adjustments than one with limitedresources, such as a small college. For example, alarger education provider may find it easier tocarry out disruptive building works to improveaccess by using alternative buildings which arenot available to a small education provider. Evenwhen an education provider’s specific disabilitybudget has been exhausted, they will still berequired to make reasonable adjustments.

The effect of the disability on the individualdisabled person or student

5.43 The effect of an individual’s disability may affectwhat adjustments are reasonable for an educationprovider to make.

The practicability of the adjustment

5.44 It is more likely to be reasonable for an educationprovider to have to make an adjustment which iseasy to make than one which is difficult. In some

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circumstances it may be reasonable to have tomake an adjustment, even though it is difficult.

A person with restricted growth applies for acourse in photography. The darkroom that will beused needs some adjustments to be made tomake a workstation accessible for the student.This will require some building work whichcannot be completed before the start of term.However, the course tutor makes some smallchanges to the structure of the course so that itbegins with non-darkroom work, to allow theadjustments to the darkroom to be made.

5.45 There may be some instances, when, although anadjustment might overcome the substantialdisadvantage, it will not be practicable for theeducation provider to take such a step.

A person with severe learning difficulties istaking a weekly local history class. Althoughmuch of the class is practically-based, involvingvisits to local places of interest, the tutor alsoregularly gives out articles from history journals.While every effort should be made to ensure thatthe person with learning difficulties understandswhat the articles say, it might not be practicablefor the tutor to try to represent them all inpictorial or symbol form which is the methodused by the person with learning difficulties.

A young person with dyslexia is a student on aone-year diploma course. His disability makes itdifficult for him to read long texts and, ideally, hewould like all his books on audiotape. However,his course has a very long reading list which

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changes every year. Although the college doeshave a system for putting texts onto tape, thisprocess takes some time and it is unlikely to bepracticable for the college to provide him with allhis books on tape during the year. It is likely,however, to be reasonable to discuss with thestudent other reasonable adjustments to reducethe disadvantage.

The financial and other costs of theadjustment

5.46 If an adjustment costs little or nothing it would bereasonable unless some other factor (such aspracticability or effectiveness) made itunreasonable. The costs to be taken into accountinclude those for staff and other resources. Thesignificance of the cost of a step may depend inpart on what the education provider mightotherwise spend in the circumstances. Inassessing the likely costs of making anadjustment, the availability of external fundingshould be taken into account.

The financial resources of the educationprovider

5.47 It is more likely to be reasonable for an educationprovider with substantial financial resources tohave to make an adjustment with a significantcost, than for an education provider with fewerresources. The resources in practice available tothe education provider as a whole should be takeninto account as well as other calls on thoseresources. For larger education providers, it isgood practice to have a specific budget forreasonable adjustments – but limitations on thesize of any such budget will not affect the

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existence of the education provider’s duties todisabled students. Where the resources of theeducation provider are spread across more thanone education institution, the calls on them all arelikely to be taken into account in assessingreasonableness. The reasonableness of anadjustment will depend not only on the resourcesin practice available for the adjustment but also onall other relevant factors (such as effectivenessand practicability).

A sign language user wishes to use the careersservice at a higher education institution.Although the careers service has a very smallbudget and does not have sufficient funds tocover the cost of an interpreter, the institutionhas a large enough budget to cover the cost andfunding should be provided in order to make itscareers service accessible to the student.

The availability of grants, loans and otherassistance to disabled students

5.48 Some disabled students following higher educationcourses will be eligible for Disabled Students’Allowances, the specific purpose of which is to payfor additional aids and services which studentsrequire because of a disability. It would not bereasonable to expect an education provider to payfor the same aids and services for which DisabledStudents’ Allowances are available.

A student with dyslexia on a FE course has alaptop computer paid for by a charitable grant. Itis unlikely to be reasonable to expect theuniversity to fund another laptop computer forthe student to use in lectures, if the student cantake her own laptop to lectures easily.

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5.49 However, there are instances when disabledstudents might need reasonable adjustments tobe provided by the education provider in additionto those resourced through the Disabled Students’Allowances. Education providers should anticipatethat this might be the case.

A student who has cerebral palsy has receivedfunding through his Disabled Students’Allowance to buy an adapted keyboard to usewith his computer. However, it is toocumbersome for him to transport every day fromhis residence to the university. It is likely to bereasonable to expect the university to providehim with a similar adaptation for a computerwithin the IT suite at the university.

A student who is a BSL user receives fundingthrough his Disabled Students’ Allowance tocover the cost of a BSL interpreter for some, butnot all, of his lectures. Subject to effectiveness,practicability and cost (amongst other factors), itmay be reasonable for the university to providehim with individually-tailored additionalcommunication support for his other lectures.

5.50 A disabled person is not required to contribute tothe cost of a reasonable adjustment, therefore aneducation provider should not charge a studentfor any reasonable adjustments. To do so is likelyto amount to discrimination.

5.51 If a disabled person has a particular piece ofspecial or adapted equipment which he isprepared to use whilst studying, this might makeit reasonable for the education provider to have to

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take some other step (as well as allowing the useof the equipment).

A disabled student has a dictaphone which heneeds in all lectures and whilst working at home.The education provider allows him to use it in alllectures and ensures that he is able to sit close tothe front of the lecture room so that he is able toobtain a clear recording of the lecture.

The extent to which aids and services willotherwise be provided to disabled peopleor students

5.52 There will be some instances when a disabledperson or student is provided with support fromanother agency. In these cases, it would not bereasonable to expect the responsible body toduplicate this support.

A man with physical disabilities who needsassistance with toileting is enrolled on an adulteducation course. His disabilities mean that herequires a support worker with him at all times.He is already receiving a package of care fundedby his local authority and he has a full-timesupport worker allocated to him. It is unlikely tobe reasonable to expect the education authorityto provide an additional support worker to carryout the same role. However, if he also needsadditional learning support it is the educationprovider’s duty to provide the necessaryreasonable adjustment.

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Health and safety requirements

5.53 The Act does not override health and safetylegislation. If making a particular adjustmentwould increase the risks to the health and safetyof any person (including the disabled person inquestion) then this is a relevant factor in decidingwhether it is reasonable to make that adjustment.Suitable and sufficient risk assessments should beused to help determine whether such risks arelikely to arise. There might be instances when,although an adjustment could be made, it wouldnot be reasonable as it would endanger the healthand safety either of the disabled person or ofother people. However, education providers arenot required to eliminate all risk and should lookat reasonable adjustments which will minimiserisks. Risk management should be an ongoingprocess throughout a student’s time at theinstitution.

A wheelchair user with a stairclimbingwheelchair is required to attend lectures on thefirst floor of a building without a lift. Theeducation provider has concerns about thehealth and safety risks associated with him usinghis stairclimbing wheelchair. Following a riskassessment the education provider identifies themain risk and puts processes in place tominimise these such as ensuring the student isaccompanied whilst moving up and down stairsand that other students are aware of the need toallow him space to do so.

5.54 There might be other instances where responsiblebodies could make anticipatory reasonableadjustments in line with health and safetylegislation, ensuring compliance with, and notinfringing, that legislation.

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An education provider trains staff to use evacchairs and installs flashing fire alarms to reducethe risks associated with the evacuation ofdisabled students in the case of a fire.

5.55 Health and safety issues must not be usedspuriously to avoid making a reasonableadjustment. Education providers should avoidmaking uninformed assumptions about health andsafety risks.

A university chaplaincy refuses to provide atemporary ramp into the chapel for a wheelchairuser because they say that wheelchair userspose a health and safety hazard by preventingother people reaching the fire exits in anemergency. The chaplaincy have made anunjustified assumption about health and safetyand failed to consider and discharge the duty tomake reasonable adjustments. Therefore, thetreatment is likely to amount to unlawfuldiscrimination.

A student with HIV wants to take a nursingcourse. The education provider assumes that hiscondition will create a health and safety risk andrefuses him a place. If the college had obtainedfurther information about the student’s conditionand the associated risks it would have been ableto put adjustments in place to ensure there wereno unnecessary health and safety risks.

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The relevant interests of other peopleincluding other students

5.56 Ordinarily the views of other people regarding thereasonable adjustments required by a disabledperson will be irrelevant. However, there arelimited circumstances where the provision of aparticular reasonable adjustment for a disabledperson will disadvantage other people. This isonly relevant where the adjustment results insignificant disadvantage for other people such asother students. In such a case, the educationprovider may not be expected to make theadjustment.

A disabled person applies for a full-time courseat an education provider. His health conditionrequires hospital appointments for dialysis threetimes a week. For the disabled person to takepart in the course full-time, he would either haveto miss large amounts of the course, or thetimetable would need to be substantially revised,which would make it very difficult for many othermembers of the course to attend. It is likely thatthis would not be a reasonable adjustment, as itwould significantly adversely affect otherstudents on the course. In this case, it is likely tobe appropriate to look at alternativearrangements, such as a similar part-timecourse.

5.57 There will, however, be other instances wherethere is a duty to make an adjustment despitesome inconvenience to others. In deciding whatadjustments are reasonable it is important toweigh the level of inconvenience to others againstthe substantial disadvantage to the disabledperson.

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A disabled student has an impairment thatcauses him to need short rest breaks due tofatigue. For the final 15 minutes of each class,the tutor asks students to complete a writtenexercise. Before this exercise, the tutor allowsthe student a short rest break if required. Theother students complain that they have to waitan additional few minutes for the student.However, the delay does not significantlyadversely affect the group to the extent that itmakes the adjustment unreasonable. This isbecause the short delay experienced by otherstudents is unlikely to be considered a sufficientreason for not allowing the disabled student tohave rest breaks and thereafter allow him toparticipate in the written exercises.

Other factors

5.58 Education providers should bear in mind thatthere are no rigid solutions and there are oftenseveral solutions to one situation. Educationproviders need to think flexibly about reasonableadjustments. Action which may result inreasonable access to services being achieved forsome disabled people may not necessarily do sofor others. Equally, it is not enough for educationproviders to make some changes if they still leavedisabled people at a substantial disadvantage andthere are other reasonable adjustments that canbe made to overcome the disadvantage.

A deaf student applies to attend a small furthereducation college and indicates that he requiresan induction loop to access lectures. In line withits anticipatory duty the college has alreadypurchased a portable induction loop and

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provided some basic training for staff. Thecollege discusses with the deaf student hisreasonable adjustment requirements andascertains that they do not need to install aninduction loop in every seminar room andlecture theatre as the student can use theportable loop. The college then arranges forfurther staff training and also alerts maintenancestaff to the need to ensure that the loop isworking and is periodically tested.

Another deaf student applies to attend the samesmall further education college. The collegeassumes that it will need to purchase anotherportable hearing loop. However, after discussingwith the student her requirements, the collegefinds that the student does not normally use ahearing loop and prefers to lip-read. The collegeensures that all staff are aware of the need toface the student and to speak clearly when theyare talking to her.

5.59 Similarly, an education provider will not havetaken reasonable steps if it attempts to provide anauxiliary aid or service which in practice does nothelp disabled people to use the educationprovider’s services. The way in which an auxiliaryaid or service is provided may be just as importantas the auxiliary aid or service itself.

A further education college buys a textphone andadvertises the number in promotional material.As well as buying and advertising the number forthe textphone, the college trains the receptionstaff in using the equipment and ensures thatmaintenance staff check that it is working atregular intervals.

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5.60 Once an education provider has decided to put areasonable adjustment in place, it is important todraw its existence to the attention of disabledstudents. In all cases, it is important to use ameans of communication which is itself accessibleto disabled people. Failing to make people awareof the adjustment, if it is not obvious, may betantamount to not making the adjustment at all. Inaddition it is important to maintain the adjustmentso that it continues to work.

A university installs a hearing induction loop inits reception area. Signs to indicate the presenceof the loop are displayed and maintenance staffcheck that it is working at regular intervals.

5.61 If, having considered the issue thoroughly, thereare genuinely no steps that it would be reasonablefor an education provider to take to make itsservices accessible, the education provider isunlikely to be in breach of the law if it makes nochanges. Such a situation is likely to be rare andwill depend on the individual circumstances of thecase.

What adjustments might an educationprovider have to make?

5.62 The duty to make reasonable adjustments placeseducation providers under a responsibility to takesuch steps as it is reasonable, in all thecircumstances of the case, for it to have to take inorder to remove the substantial disadvantage. Theduty includes the provision of auxiliary aids andservices and removing or altering physicalfeatures.

5.63 Any necessary adjustments should beimplemented in a timely fashion and it may also

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be necessary for an education provider to makemore than one adjustment. It is advisable to agreeany proposed adjustments with the disabledperson in question before they are made, in thecase of individualised adjustments.

In order to comply with the anticipatory duty aneducation provider makes structural or otherphysical changes such as widening a doorway,providing ramps as reasonable adjustments forwheelchairs, relocating light switches and doorhandles which could place disabled people at asubstantial disadvantage and providingappropriate contrast in decor to help the safemobility of visually impaired people.

Course materials and curriculum resources mayneed to be modified for some disabled students,for example, by producing them in Braille or onaudio tape, and instructions for students withlearning disabilities may need to be conveyed inEasy Read or orally.

A lecturer reads out text written on the board oron visual presentations during the lecture.

5.64 It may sometimes be necessary for an educationprovider to take a combination of steps.

A woman who is deafblind applies for a course ata further education college. The college:

(i) arranges facilities for her guide dog

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(ii) arranges for course materials to be providedin Braille, and

(iii) provides disability equality training to staffand students.

5.65 Other steps an education provider might have totake could include:

� conducting a proper assessment of whatreasonable adjustments may be required

� permitting flexible studying

� allowing a disabled student to take a period ofdisability leave.

A student who has cancer needs to undergotreatment and rehabilitation. His universityallows a period of disability leave and a flexiblereintroduction to the course on his return.

� employing a support worker to assist adisabled student.

A student with a mobility impairment is requiredto visit a range of organisations and collate asubstantial amount of information for a researchproject. The education provider employs asupport worker to assist her with this project.

� modifying disciplinary or complaintsprocedures.

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A woman with a learning disability is allowed totake a friend (who does not study with her) to actas an advocate at a meeting with her educationprovider about a grievance. The educationprovider also ensures that the meeting isconducted in a way that does not disadvantageor patronise the disabled woman.

5.66 In some cases a reasonable adjustment will notwork without the co-operation of other students.Other students may therefore have an importantrole in helping to ensure that a reasonableadjustment is carried out in practice. Subject toconsiderations about confidentiality (explained atparagraphs 5.26 to 5.28), education providersmust ensure that such co-operation is sought. It isunlikely to be a valid defence to a claim under theAct that other students were obstructive orunhelpful when the education provider tried tomake reasonable adjustments. An educationprovider would at least need to be able to showthat it took such behaviour seriously and dealtwith it appropriately. Education providers will bemore likely to be able to do this if they establishand implement the type of policies and practicesdescribed at paragraph 2.13.

An education provider ensures that a studentwith autism has a structured timetable as areasonable adjustment. As part of the reasonableadjustment it is the responsibility of theeducation provider to ensure that all staff co-operate with this arrangement.

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An education provider makes reasonableadjustments for a student who lip-reads,including speaking clearly and facing the frontduring lectures, and ensuring that the palantypistthe student uses has occasional breaks. The classtutor asks students to make similar adjustmentsso that the student can participate effectively ingroup work.

A student with a mental health conditionrecognises that at times his behaviour may bedifficult for others to understand and thereforecan be wrongly interpreted. He asks theeducation provider to explain this to his fellowstudents in an appropriate manner so that hisbehaviour is more likely to be understood.

5.67 Further examples of the way in which reasonableadjustments work in practice are given in Chapters8, 9 and 10, which deal with admissions, studentservices and examinations.

Can failure to make a reasonableadjustment ever be justified?

5.68 The Act does not permit an education provider tojustify a failure to comply with a duty to make areasonable adjustment.

5.69 Clearly, however, an education provider will onlybreach such a duty if the adjustment in question isone which it is reasonable for it to have to make.So, where the duty applies, it is the question of‘reasonableness’ which alone determines whetherthe adjustment has to be made.

s 28S(2)

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5.70 There is no duty to make any adjustment to aprovision, criterion or practice of a kind which theAct defines as a ‘competence standard’. However,the duty does apply to the process ofdemonstrating that a person meets thecompetence standard.

What is a competence standard?

5.71 The Act defines a ‘competence standard’ as anacademic, medical, or other standard applied byor on behalf of an education provider for thepurpose of determining whether or not a personhas a particular level of competence or ability.

An applicant for a degree in music, whichinvolves a substantial element of performance, isrequired to demonstrate a certain level of abilityin playing an instrument. This would be acompetence standard.

The admission criteria for a course inchoreography include a requirement todemonstrate ‘a high level of physical fitness’.The course itself, however, is predominatelytheory-based and does not involve anystrenuous physical activity. This is unlikely to bea competence standard.

5.72 Education providers are likely to impose variousrequirements and conditions in respect of courses.

5.73 However, any such requirement or condition onlyamounts to a competence standard if its purposeis to demonstrate a particular level of a relevantcompetence or ability. A requirement that a

s 28S(11)

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person has a particular level of knowledge of asubject is likely to be a competence standard.

The requirement for students studying for a lawdegree to demonstrate a particular standard ofknowledge of certain areas of law in order toobtain the degree is a competence standard.

5.74 On the other hand, a condition that a person can,for example, do something within a certain periodof time will not be a competence standard if itdoes not determine a particular level ofcompetence or ability.

A requirement that a student must physicallyattend an examination at a particular location isnot a competence standard.

A requirement that a student sitting a writtenexam must ‘write neatly’ is not a competencestandard.

A requirement that a person completes a test in acertain time period is not a competence standardunless the competence being tested is the abilityto do something within a limited time period.

5.75 Sometimes the process of assessing whether acompetence standard has been achieved isinextricably linked to the standard itself. Thepassing of an assessment may be conditionalupon having a practical skill or ability which mustbe demonstrated by completing a practical test.Therefore, in relatively rare circumstances, the

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ability to take the test may itself amount to acompetence standard.

An assessment for a practical course in carmaintenance cannot be done solely as a writtentest, because the purpose of the test is toascertain whether someone can complete carrepairs.

What is the significance of this distinction?

5.76 Special rules apply in relation to the application ofa competence standard to a disabled person by oron behalf of an education provider. The effect ofthe Act is that:

� there is no duty to make reasonableadjustments in respect of the application of acompetence standard; and

� in the limited circumstances in whichdisability-related discrimination of a disabledperson in the application of such a standardmay be justified, justification is assessed byreference to a special statutory test (seeChapter 6).

5.77 It is very important to ascertain whether aparticular provision, criterion or practice of aneducation provider is a genuine competencestandard and, if so, whether the matter at issueconcerns the application of that standard to thedisabled person.

5.78 Although there is no duty to make reasonableadjustments in respect of the application of acompetence standard, such a duty does apply tothe process by which competence is assessed. Soalthough an education provider has no duty to

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alter a competence standard, it needs to considerwhether or not a reasonable adjustment could bemade to some aspect of the process by which itassesses a competence standard. However, theremay be an overlap between a competencestandard and any process by which an individualis assessed against that standard.

A woman taking a written test for a qualificationin office administration asks the educationprovider for extra time for the test because shehas dyslexia. This is likely to be a reasonableadjustment for the education provider to make.She also asks if she can leave out the questionsasking her to write a business letter and to précisa document, because she feels that thesequestions would substantially disadvantage herbecause of her dyslexia. The education providerwould not have to make this adjustment becausethese questions are there to determine hercompetence at writing and précising, so are partof the competence standard being tested.

What happens if the duty to makereasonable adjustments is not compliedwith?

5.79 Where an education provider does not complywith the duty to make reasonable adjustments itwill be committing an act of unlawfuldiscrimination. A disabled person will be able tomake a claim based on this (see Chapter 13 formore details about claims).

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What evidence is needed to prove that theduty to make reasonable adjustments hasnot been discharged?

5.80 Paragraph 3.38 explains that claims of disabilitydiscrimination under the Act’s provisions onpost-16 education take place in the county court(England and Wales) or sheriff court (Scotland).A person who brings a claim for unlawfuldiscrimination must show that discrimination hasoccurred. He must prove this on the balance ofprobabilities in order to succeed with a claim inthe court.

5.81 The Act says that, when such a claim is heard by acourt, the courtmust uphold the claim if:

� the claimant proves that he is covered by thedefinition of disability, and

� the claimant proves facts from which the courtcould conclude in the absence of an adequateexplanation that the person against whom theclaim is made (the defendant) has actedunlawfully, and

� the defendant fails to prove that he did not actin that way.

5.82 Where a disabled person is able to prove, on thebalance of probabilities, facts from which aninference of unlawful discrimination could bedrawn, the burden of proof shifts to the defendant.This means that the education provider mustshow that it is more likely than not that its conductwas not unlawful. Its practical effect in relation tofailure to make reasonable adjustments can besummarised as follows:

s 28V(1A)

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� To prove an allegation of failure to make areasonable adjustment, a claimant must provefacts (from all the evidence before the court)from which it could be inferred in the absenceof an adequate explanation that he is placed ata substantial disadvantage by the defendant’sprovisions, criteria or practices, or by thedefendant’s physical features of premises, incontrast to non-disabled persons.

� The burden then shifts to the defendant toprove that there were no adjustments thatreasonably could have been made to removethe disadvantage in question, or to prove thatthe matters concern the application of acompetence standard.

For the purposes of reasonable adjustment claims,the test to determine upon whom the burden ofproof lies should in practice comprise a two-stageprocess, but the court hearing does not have to besplit into two similar stages. Instead, thesematters should be addressed in the courtjudgment after the respective parties have givenevidence and made submissions.

If a provision of this Code appears to a court to berelevant it must take that provision into accountwhen determining whether there has beendiscrimination or harassment (see paragraph1.13).

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Introduction

6.1 One of the ways in which an education providerdiscriminates against a disabled person is wherethe education provider treats the disabled personless favourably, for a reason relating to hisdisability. This chapter examines this duty and thecircumstances in which disability-relateddiscrimination can be justified.

6.2 The expression ‘disability-related discrimination’distinguishes less favourable treatment which isfor a reason related to a person’s disability fromdirect discrimination which is less favourabletreatment on the grounds of a person’s disability.

What does the Act say?

6.3 The Act says that an education provider’streatment of a disabled person amounts todiscrimination if:

� it is for a reason related to his disability

� the treatment is less favourable than the wayin which the education provider treats (orwould treat) others to whom that reason doesnot (or would not) apply, and

� the education provider cannot show that thetreatment is justified (after taking into accountthe reasonable adjustments duty – seeChapter 5).

s 28S(1)

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6.4 Although the Act itself does not use the term‘disability-related discrimination’, this expressionis used in the Code when referring to treatment ofa disabled person which:

� is unlawful because each of the conditionslisted in paragraph 6.3 is satisfied; but

� does not amount to direct discriminationunder the Act (see Chapter 4 for more detailsof direct discrimination).

Identifying comparators for disability-related discrimination

6.5 In determining whether disability-relateddiscrimination has occurred, the educationprovider’s treatment of the disabled person mustbe compared with that of a person to whom thedisability-related reason does not apply. Thiscontrasts with direct discrimination, whichrequires a comparison to be made with a personwithout the disability in question but whoserelevant circumstances are the same. Thecomparator may be non-disabled or disabled – butthe key point is that the disability-related reasonfor the less favourable treatment must not applyto him. As with direct discrimination thecomparator can be a real person or a hypotheticalperson.

A student with a mental health condition carriesmedication related to her condition. The collegeshe attends, however, has a strict policy thatdoes not allow any drugs on the premises. Thecorrect comparator would be a person attendingthe same institution who does not carry drugswith them.

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A disabled person who uses crutches is notallowed to participate in a site visit that formspart of their construction course, because thetutor judges that the student may havedifficulties moving around the site. The correctcomparator would be a person who does nothave any mobility difficulties and so can movearound the site without difficulty.

A student who is deaf and uses an assistancedog is not allowed into the library at hisuniversity, because the library does not allowdogs on the premises. The correct comparator isa person who does not bring a dog with them tothe library and so can go onto the premises.

Reason for the treatment

6.6 In order to identify an appropriate comparator it isnecessary to first identify the treatment and thereason for the treatment.

6.7 There must be a connection between the reasonfor the less favourable treatment and the person’sdisability for the treatment to be discriminatory.

A student with sickle cell anaemia has beenasked to leave the university’s residentialaccommodation because of the number of noisyparties he has been holding which have beendisturbing other students. The reason for askinghim to leave is his disruptive behaviour and isnot related to his disability, and so is not likely toamount to discrimination.

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6.8 It is then necessary to compare the treatment withthe way someone to whom the reason does notapply has been treated. A disabled person doesnot have to show that others were actually treatedmore favourably than he or she was. He or sheneeds only to show that others would not havebeen treated less favourably.

A student with cerebral palsy which affects herspeech, is working on her thesis for her researchdegree. Her personal tutor avoids supervisionsessions for individual discussion with thedisabled student because the sessions takelonger than with other students due to her slowspeech. Although there is no other studentundertaking the same course, the department’sprotocols for research degrees suggest that allpersonal tutors should hold regular supervisionsessions with research degree students. Thestudent can point to this policy as an example ofhow other research degree students would betreated.

6.9 The comparison may be between the way onedisabled person is treated and the way peoplewith other disabilities are treated. There does notneed to be an actual comparator, the comparisoncan be with a hypothetical person if an actualcomparator does not exist.

A community education tutor tells a woman whois blind that she cannot join the singing groupbecause she cannot read the sheet music. A manwith chronic asthma is allowed to join the group.Although the tutor has accepted a disabledperson onto the course, the blind woman hasbeen treated less favourably for a reason relatingto her disability and this is likely to be unlawful.

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6.10 Once an appropriate comparator is identified, it isclear that the situations described in the examplesat paragraph 6.5 could amount to less favourabletreatment for a disability-related reason.

In the example about the student with a mentalhealth condition who carries medication relatedto her condition, if she is not allowed to attendthe college, whilst someone who does not carrydrugs is allowed to attend, this would be lessfavourable treatment of her for a reason(carrying drugs) which relates to her disability(she requires the medication because of hercondition).

In the example about the disabled person whouses crutches and is not allowed to participate ina site visit that forms part of their constructioncourse, this would be less favourable treatmentof him for a reason (his use of crutches andlimited mobility) which related to his disability.

In the example about the deaf student with anassistance dog being denied access to thelibrary, this would be less favourable treatmentas someone without a dog would be allowedaccess. The reason for the treatment is that shehas a dog with her and that reason is related toher disability.

Must an education provider know that aperson is disabled?

6.11 There is no requirement for an education providerto know that a person is disabled in order to beliable for unlawful less favourable treatment.

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A student has a mental health condition and,because of her medication, finds it difficult to getto her first morning class. After several weeksduring which she has missed all her morningclasses, and without approaching the student tofind out why she has not turned up, the collegedecides to remove her from the course. Althoughthe college did not know that she was disabled itwill still be liable for unlawful discrimination as ithas treated the student less favourably for areason related to her disability.

A man with a medical condition that causesfatigue and subsequent loss of speech controlapplies to a university for a postgraduate degree.The application form does not ask whether hehas a disability nor whether he would have anyparticular needs when attending interview. Heattends an interview, during which he is verylistless and his speech is very slurred because heis tired from the journey, and the selectors turnhim down because of this. He mentioned at theinterview that he felt tired but the panel ignoredthis. The selectors’ treatment of the applicant islikely to be unlawful.

Justification of disability-relateddiscrimination

6.12 An education provider’s conduct towards adisabled person does not amount to unlawfuldisability-related discrimination if it can bejustified. The following paragraphs explain thelimited circumstances in which this may happen.

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6.13 There are only two circumstances when lessfavourable treatment for a reason related to aperson’s disability can be justified:

� when the reason for the treatment is bothmaterial to the circumstances of the particularcase and substantial, or

� when it is the application of a competencestandard.

When does the Act permit justification for amaterial and substantial reason?

6.14 Where less favourable treatment of a disabledperson other than the application of a competencestandard is capable of being justified (that is,where it is not direct discrimination), the Act saysthat it will, in fact, be justified if, but only if, thereason for the treatment is both material to thecircumstances of the particular case andsubstantial. This is an objective test. ‘Material’means that there must be a reasonably strongconnection between the reason given for thetreatment and the circumstances of the particularcase. ‘Substantial’ means, in the context ofjustification, that the reason must carry realweight and be of substance.

A blind man is not accepted on a gas weldingcourse as it is a practical course which requiresthe students to weld pieces of metal together. Theonly way to tell if the metal is melted sufficientlyto weld to another piece is by looking at itsconsistency and colour. There is no reasonableadjustment that would enable the blind man to dothis analysis of the metal. Refusing him entry tothe course is likely to be lawful as the reason he isrejected is a substantial one and is clearly materialto the circumstances.

s 28S(5)and (6)

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6.15 Before disability-related less favourable treatmentcan be justified for a material and substantialreason it is necessary to consider whether or notthe education provider is also under a duty tomake reasonable adjustments in relation to thedisabled person but fails to comply with that duty.If the education provider has failed to comply withthe reasonable adjustments duty it may not beable to justify the disability-related less favourabletreatment even if there is a material andsubstantial reason.

6.16 Where the education provider has a duty to makea reasonable adjustment, it is necessary toconsider not only whether there is a material andsubstantial reason for the disability-relateddiscrimination, but also whether the treatmentwould still have been justified even if theeducation provider had complied with its duty tomake reasonable adjustments. In effect, it isnecessary to ask the question ‘would a reasonableadjustment have made any difference?’. If areasonable adjustment would have made adifference to the reason that is being used tojustify the treatment, then the disability-relateddiscrimination cannot be justified.

An applicant for a course in administration skillsappears not to be suited to the course, but onlybecause her typing speed is too slow as a resultof arthritis in her hands. If a reasonableadjustment – perhaps an adapted keyboard –would overcome this, her typing speed wouldnot in itself be a material and substantial reasonfor not allowing her onto the course. Thereforethe education provider would be unlawfullydiscriminating if, on account of her typing speed,it did not allow her onto the course or providethat adjustment.

s 28S(7)

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How does the ‘material and substantial’justification apply in practice?

6.17 Reasons, such as health and safety implications,may appear to be ‘material’ and ‘substantial’reasons which are capable of justifying thedisability-related discrimination. However,assumptions about the health and safetyimplications of disability should be avoided asfurther investigation may show that there are nomaterial or substantial health and safety reasonsto justify the treatment. The fact that a person hasa disability does not necessarily mean that herepresents an additional risk to health and safety.

A person with epilepsy applies for a cateringcourse at his local further education college. Heprovides information from his GP that he hasregular seizures. The college refuses to accepthim on the course as they are concerned that hewill have a seizure during a practical session andinjure himself. In fact, the student is alwaysaware when a seizure is imminent and goes to asafe environment. If the college had investigatedthe implications of his disability further it wouldhave been apparent that there was no real healthand safety risk.

6.18 Genuine concerns about the health and safety ofanybody (including a disabled person) may berelevant when seeking to establish that disability-related less favourable treatment of a disabledperson is justified. Conducting a risk assessmentis often necessary to show whether or not thereare any genuine health and safety issues. It isprudent for an education provider to have a riskassessment carried out by a suitably qualifiedperson in circumstances where it has reason tothink that the effects of a person’s disability may

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give rise to an issue about health and safety. Aneducation provider which treats a disabled personless favourably without having a suitable andsufficient risk assessment carried out is unlikely tobe able to show that its concerns about health andsafety justify the less favourable treatment.

6.19 Nevertheless, an education provider should notsubject a disabled person to a risk assessment ifthis is not merited by the particular circumstancesof the case.

A man with diabetes applies for a distancelearning MBA that occasionally involvesresidential sessions at the university. The man’scondition is stable and he has successfullymanaged it for many years. He provides medicalevidence from his GP to confirm this.Nevertheless, the university says that it hasconcerns about health and safety during theresidential elements of the course and that theywant to undertake a risk assessment. This islikely to be unlawful, as the circumstances of thecase do not indicate that there would be anyhealth and safety risk.

6.20 A risk assessment must be suitable and sufficient.It should identify the risks associated with aparticular activity; taking account of anyreasonable adjustments put in place for thedisabled person, and should be specific for theindividual carrying out a particular task. It istherefore unlikely that an education providerwhich has a general policy of treating people withcertain disabilities (such as epilepsy, diabetes ormental health problems) less favourably thanother people will be able to justify doing so – evenif that policy is in accordance with the advice of anoccupational health adviser.

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6.21 A ‘blanket’ policy of this nature will usually beunlawful as it cannot be material to the facts of theindividual case. This is because it is likely toamount to direct discrimination (which cannotever be justified) or to disability-relateddiscrimination which is not justifiable in thecircumstances.

6.22 Reasonable adjustments made by an educationprovider may remove or reduce health and safetyrisks related to a person’s disability and thereforeremove the material and substantial reason whichwould otherwise make the disability-relateddiscrimination lawful. A suitable and sufficientassessment of such risks therefore needs to takeaccount of the impact which making anyreasonable adjustments would have. If a riskassessment is not conducted on this basis, thenan education provider is unlikely to be able toshow that its concerns about health and safetyjustify less favourable treatment of the disabledperson.

6.23 In addition, where medical information isavailable, education providers must weigh it up inthe context of the actual situation, and thecapabilities of the individual. An educationprovider should also consider whether reasonableadjustments could be made in order to overcomeany problems which may have been identified asa result of the medical information. It should notbe taken for granted that the person who providesthe medical information will be aware thateducation providers have a duty to makereasonable adjustments, what these adjustmentsmight be, or of the particular circumstances. It isgood practice, therefore, to ensure that medicaladvisers are made aware of these matters.Information provided by a medical adviser should

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only be relied on if the adviser has the appropriateknowledge and expertise.

An agricultural college offers a practical coursein tree surgery. A medical questionnaire showsthat an applicant has a medical condition whichmight mean that it is unsafe for him to do thecourse. Because of this, further medical evidenceis obtained and a risk assessment conducted andthis confirms that he would not be able tocomplete many elements of the course. It is likelyto be lawful to reject this applicant if in fact it isnecessary for him to complete all the elements ofthe course and if there are no reasonableadjustments that could be made.

A university receives advice from anoccupational health adviser stating simply thatan applicant for a teaching course is ‘not fit toteach’. The university should ask for furtherinformation on why this decision has beenreached so that the university can make its owndecision and if necessary consider whether thereare reasonable adjustments which should bemade in order for the applicant to meet the‘fitness criteria’.

What is a competence standard?

6.24 The Act defines a ‘competence standard’ as anacademic, medical, or other standard applied byor on behalf of an education provider for thepurpose of determining whether or not a personhas a particular level of competence or ability.

s 28S(11)

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When can less favourable treatment bejustified in relation to competencestandards?

6.25 Less favourable treatment of a disabled personcan never be justified if it amounts to directdiscrimination (see paragraph 4.20). Theapplication of a competence standard may,depending on the circumstances, result indisability-related discrimination of a disabledperson.

6.26 Where the application of a competence standardto a disabled person amounts to disability-relateddiscrimination, that treatment is justified if, butonly if, the education provider can show that:

� the standard is (or would be) applied equallyto people who do not have his particulardisability; and

� its application is a proportionate means ofachieving a legitimate aim.

An education provider refuses to accept adisabled student onto a course in classical balletbecause he fails to pass the audition for thecourse (for a reason related to his disability). Thisdoes not amount to direct discriminationbecause anyone, disabled or non-disabled,failing the audition would be treated in the sameway. But it may be less favourable treatment fora reason related to the man’s disability. Thetreatment could be justified if the criteria wereapplied equally to all applicants and the criteriawere a proportionate way of showing that theperson could fulfil the essential requirements ofthe course.

s 28S(9)

s 28S(6)

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Suppose that in the above situation, theeducation provider had not reviewed the criteriato see if they were proportionate to therequirements of the course. If it had done so, itwould have found that the criteria were of amuch higher level than the course demanded(even though other applicants had achieved thatstandard at the time of their auditions). In thesecircumstances, the education provider would beunlikely to be able to justify the criteria.

6.27 The effect of these provisions is that lessfavourable treatment which is disability-relatedand which arises from the application of acompetence standard is capable of justification onan objective basis. Justification does not dependon an individual assessment of the disabledperson’s circumstances, but depends instead onan assessment of the purpose and effect of thecompetence standard itself. For a competencestandard to be objectively justifiable, theeducation provider would have to show that it wasappropriate and necessary and that it was aproportionate means of achieving a legitimateaim.

6.28 To demonstrate that the application of a particularcompetence standard is a proportionate means ofachieving a legitimate aim, the education providermust show:

� that there is a pressing need that supports theaim which the treatment is designed toachieve and thus amounts to a ‘legitimate’aim, and

� that the application of the competencestandard is causally related to achieving thataim, and

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� that there was no other way to achieve theaim that had a less detrimental impact on therights of disabled people.

6.29 These special rules about justification are onlyrelevant to the actual application of a competencestandard. If an education provider applies acompetence standard incorrectly, or applies astandard which is not a genuine competencestandard then these rules do not operate. Instead,the more usual test of justification operates(assuming, of course, that the incorrectapplication of the standard is not directlydiscriminatory, but that it is disability-related lessfavourable treatment).

How can education providers avoiddiscrimination in relation to competencestandards?

6.30 If unlawful discrimination is to be avoided whenthe application of a competence standard resultsin less favourable treatment of a disabled person,the education provider concerned will have toshow two things. First, it will have to show thatthe application of the standard does not amountto direct discrimination – if it does it is not agenuine competence standard. Second, it will benecessary to show that the standard can beobjectively justified.

6.31 This is more likely to be possible where aneducation provider has considered the nature andeffects of its competence standards in advance ofan issue arising in practice. It would be advisablefor education providers to review and evaluatecompetence standards. This process mightinvolve:

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� identifying the specific purpose of eachcompetence standard which is applied, andexamining the manner in which the standardachieves that purpose

� considering the impact which eachcompetence standard may have on disabledpeople and, in the case of a standard whichmay have an adverse impact, asking whetherthe application of the standard is absolutelynecessary

� reviewing the purpose and effect of eachcompetence standard in the light of changingcircumstances – such as developments intechnology

� examining whether the purpose for which anycompetence standard is applied could beachieved in a way which does not have anadverse impact on disabled people; and

� documenting the manner in which theseissues have been addressed, the conclusionswhich have been arrived at, and the reasonsfor those conclusions.

What happens if disability-relateddiscrimination occurs?

6.32 Where an education provider treats a disabledperson less favourably for a reason related to hisdisability and cannot justify that treatment, it willbe committing an act of unlawful discrimination. Adisabled person will be able to make a claimbased on this (see Chapter 13 for more detailsabout claims).

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What evidence is needed to prove thatunjustifiable disability-relateddiscrimination has occurred?

6.33 Paragraph 3.38 explains that claims of disabilitydiscrimination under the Act’s provisions onpost-16 education take place in the county court(England and Wales) or sheriff court (Scotland).A person who brings a claim for unlawfuldiscrimination must show that discrimination hasoccurred. He must prove this on the balance ofprobabilities in order to succeed with a claim incourt.

6.34 However, the Act says that when such a claim isheard by a court, the courtmust uphold the claimif:

� the claimant proves that he is covered by thedefinition of disability, and

� the claimant proves facts from which the courtcould conclude in the absence of an adequateexplanation that the person against whom theclaim is made (the defendant) has actedunlawfully, and

� the defendant fails to prove that he did not actin that way.

6.35 Consequently, where a disabled person is able toprove on the balance of probabilities, facts fromwhich an inference of unlawful discriminationcould be drawn, the burden of proof shifts to thedefendant. This means that the education providermust show cogent and persuasive reasons that itis more likely than not that its conduct was notunlawful. Its practical effect in relation todisability-related discrimination can besummarised as follows:

s 28V(1A)

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� To prove an allegation of disability-relateddiscrimination, a claimant must prove factsfrom which it could be inferred in the absenceof an adequate explanation that, for a reasonrelating to his disability, he has been treatedless favourably than a person to whom thatreason does not apply has been, or would be,treated.

� If the claimant does this, the burden or proofshifts, and it is for the defendant to show thatthe claimant has not received less favourabletreatment for a disability-related reason. Evenif the defendant cannot show this, however,the claim will not succeed if the defendantshows that the treatment was justified.

6.36 However, as has already been explained inparagraphs 6.15 and 6.16, if there has been afailure to make reasonable adjustments, this willhave an impact on the question of whether lessfavourable treatment for a disability-relatedreason can be justified. The practical effect of thisin relation to disability-related discrimination canbe summarised as follows:

� To prove an allegation of unjustifiabledisability-related discrimination, a claimantmust prove facts from which it could beinferred in the absence of an adequateexplanation that:

− for a reason related to his disability, hehas been treated less favourably than aperson to whom that reason does notapply has been, or would be, treated, and

− a duty to make a reasonable adjustmenthas arisen in respect of him and theeducation provider has failed to complywith it.

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� If the claimant does this, the claim willsucceed unless the education provider provesthat:

− the reason for the treatment is bothmaterial to the circumstances of theparticular case and substantial; and

− the reason would still have applied if thereasonable adjustment had been made, orthe reasonable adjustment would nothave made any difference, or

− the less favourable treatment was theresult of the application of a competencestandard that was applied equally topeople without his disability and was aproportionate means of achieving alegitimate aim.

For the purposes of disability-relateddiscrimination claims, the test to determine uponwhom the burden of proof lies should in practicecomprise a two-stage process, but the courthearing does not have to be split into two similarstages. Instead, these matters should beaddressed in the court judgment after therespective parties have given evidence and madesubmissions.

6.37 If a provision of this Code appears to a court to berelevant it must take that provision into accountwhen determining whether there has beendiscrimination or harassment (see paragraph1.13).

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Introduction

7.1 One of the ways in which an education providerdiscriminates under the Act is where it victimisesa person (whether disabled or not). Separately theAct also makes it unlawful for an educationprovider to subject a disabled person toharassment, which is not technically classed as aform of discrimination, but is neverthelessunlawful under the Act. These are two specificconcepts under the Act and have distinct andseparate meanings. This chapter examinesvictimisation and harassment.

What does the Act say about victimisation?

7.2 Victimisation is a special form of discriminationwhich is made unlawful by the Act. It applieswhether or not the person victimised is a disabledperson. Victimisation is unlawful if it occurs inrelation to the provision of post-16 education orother related services covered by Part 4.

7.3 The purpose of the victimisation provisions are toprotect individuals (whether disabled or not), whomake or support a claim, from reprisal.

7.4 It is unlawful for one person to treat another (‘thevictim’) less favourably than he treats or wouldtreat other people in the same circumstances(regardless of disability) because the victim has:

s 55

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� brought, or given evidence or information inconnection with, proceedings under the Act(whether or not proceedings are laterwithdrawn)

� done anything else under or by reference tothe Act, or

� alleged someone has contravened the Act(whether or not the allegation is laterdropped),

� or because the person believes or suspectsthat the victim has done or intends to do anyof these things.

A disabled student complains of discrimination,having been refused access to a number ofcollege facilities. Another student on the disabledstudent’s course gives evidence at the hearing onhis behalf. As a result, the facilities staff at thecollege start to ignore the requests made by thestudent who gave evidence and in some casesrefuse to let him have access to the facilities.This is likely to be victimisation and thereforeunlawful.

A non-disabled student acts as a witness in acomplaint by a disabled student against a collegelecturer. Later, in retaliation, other lecturing staffat the college begin to ‘lose’ the non-disabledstudent’s work, and hand assignments back laterthan for other students. This is likely to bevictimisation, and therefore unlawful.

7.5 It would also be unlawful to subject a person toless favourable treatment where he attends thehearing, not to give evidence but purely to offer

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support to the claimant – because this would besomething which is done by reference to the Act.

7.6 It is not victimisation to treat a person lessfavourably because that person has made anallegation which was false and not made in goodfaith.

7.7 However, the fact that a person has givenevidence on behalf of a claimant in a claim whichwas not successful does not, of itself, prove thathis evidence was false or that it was not given ingood faith.

A disabled man makes a series of allegationsclaiming that his tutor is discriminating againsthim. The allegations are without any foundation,and are part of a personal grudge that the youngman has against the tutor. The educationprovider decides to suspend the man from thecourse. Because of the particular circumstances,this is not likely to be victimisation and istherefore likely to be lawful.

7.8 Unlike the other forms of discrimination which aremade unlawful by the Act, a claim of victimisationmay be made by people who are not disabled aswell as by those who are.

What evidence is needed to provevictimisation has occurred?

7.9 Paragraph 3.38 explains that claims ofdiscrimination under the Act’s provisions onpost-16 education take place in the county court(England and Wales) or sheriff court (Scotland).A person who brings a claim for unlawfuldiscrimination must show that it has occurred.

s 55(4)

s 28R(4)

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He must prove this on the balance of probabilitiesin order to succeed with a claim in the court.

7.10 The Act says that, when such a claim is heard by acourt, the court must uphold the claim if:

� the claimant proves facts from which the courtcould conclude in the absence of an adequateexplanation that the person against whom theclaim is made (the defendant) has actedunlawfully, and

� the defendant fails to prove that he did not actin that way.

7.11 Where a disabled person is able to prove on thebalance of probabilities facts from which aninference of discrimination could be drawn, theburden of proof shifts to the defendant. Thismeans that the education provider must show thatit is more likely than not that its conduct was notunlawful. Its practical effect in relation tovictimisation can be summarised as follows:

� To prove an allegation of unlawfulvictimisation, a claimant must prove facts(from all the evidence before the court) fromwhich it could be inferred in the absence of anadequate explanation that he has carried outthe protected act and that he has been treatedless favourably as a consequence of theprotected act.

� The burden then shifts to the defendant toprove that the reason for the behaviourcomplained of is not related to the claimanthaving carried out the protected act.

For the purposes of victimisation claims, the testto determine upon whom the burden of proof liesshould in practice comprise a two-stage process,

s 28V(1A)

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but the court hearing does not have to be split intotwo similar stages. Instead, these matters shouldbe addressed in the court judgment after therespective parties have given evidence and madesubmissions.

7.12 The fact that there has been a failure to complywith a relevant provision of the Code must betaken into account by a court, where it considers itrelevant, in determining whether there has beendiscrimination or harassment (see paragraph1.13).

What does the Act say about harassment?

7.13 The Act says that harassment occurs where, for areason which relates to a person’s disability, aneducation provider engages in unwanted conductwhich has the purpose or effect of:

� violating the disabled person’s dignity or

� creating an intimidating, hostile, degrading,humiliating or offensive environment for him.

A student with HIV eats his lunch in the collegecanteen. A member of the catering staff refusesto collect his plate, which is not something hewould do if any other student had finished withtheir plate. He also makes offensive commentsabout the cleanliness of plates that have beenused by people with HIV. This is likely to amountto harassment.

7.14 If the conduct in question was engaged in with thepurpose or intention that it should have either ofthese effects, then it amounts to harassmentirrespective of its actual effect on the disabledperson.

s 28SA(1)

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A student with a learning disability is often called‘stupid’ and ‘slow’ by staff at a communitylearning centre. This is harassment, whether ornot the disabled man was present when thesecomments were made, because they were saidwith the intention of humiliating him.

7.15 In the absence of such intention, however, theconduct will only amount to harassment if itshould reasonably be considered as having eitherof these effects. Regard must be had to all thecircumstances in order to determine whether thisis the case. Those circumstances include, but arenot restricted in particular to, the perception of thedisabled person.

A student with a stammer feels he is beingharassed because his lecturer makes constantjokes about people with speech impairments. Heasks his lecturer to stop doing this, but thelecturer says he is being ‘oversensitive’ as hehabitually makes jokes about many differentsorts of people. This is likely to amount toharassment because making remarks of this kindshould reasonably be considered as havingeither of the effects mentioned above.

A tutor of a performing arts course makes it clearthat he feels that people who have physicalimpairments do not make good actors. A studentin the class who uses a prosthetic leg hears thecomment and finds it offensive. This is likely toamount to harassment.

s 28SA(2)

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A student with depression considers that she isbeing harassed by her tutor who constantly asksher if she is feeling all right, despite the fact shehas asked him not to do so in front of otherstudents. This could amount to harassment.

A disabled student on a social work course isoffended by a lecturer referring to disabledpeople as she feels he is picking on her. Thecomments made by the lecturer are purelyfactual, are not derogatory and are appropriatefor the lecture. The disabled person’s perceptionthat any reference to disability is aimed at herand is offensive is unlikely to be sufficient toamount to harassment.

7.16 Harassment can occur without the educationprovider being aware of a person’s disability.Whether or not it has occurred will often dependon the effect it has on the disabled person. Unlikedirect discrimination and disability-relateddiscrimination there is no requirement to comparethe treatment to that received by another person.

A lecturer teaching a course in medicinerepeatedly makes derogatory remarks aboutpeople with progressive health conditions, suchas cancer. A student in the class who has cancerfinds the repeated remarks offensive. This islikely to amount to harassment even if thelecturer did not know that any students in theclass had progressive health conditions. This isbecause the conduct has the effect of creating anoffensive environment and is conduct whichcould reasonably be considered to have such aneffect.

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7.17 Conduct which amounts to harassment may alsoamount to either direct discrimination ordisability-related discrimination depending on thecircumstances. In order to claim directdiscrimination or disability-related discrimination,the disabled person must demonstrate that theyhave suffered a detriment. There is no suchrequirement in relation to harassment.

What evidence is needed to proveharassment has occurred?

7.18 Paragraph 3.38 explains that claims of harassmentunder the Act’s provisions on post-16 educationtake place in the county court (England and Wales)or sheriff court (Scotland). A person who brings aclaim for unlawful harassment must show that ithas occurred. He must prove this on the balanceof probabilities in order to succeed with a claim inthe court.

7.19 The Act says that, when such a claim is heard by acourt, the courtmust uphold the claim if:

� the claimant/pursuer proves that he is coveredby the definition of disability; and

� the claimant/pursuer proves facts from whichthe court could conclude in the absence of anadequate explanation that the person againstwhom the claim is made (the defendant, or inScotland, the defender) has acted unlawfully;and

� the defendant/defender fails to prove that hedid not act in that way.

7.20 Where a disabled person is able to prove on thebalance of probabilities facts from which aninference of harassment could be drawn, theburden of proof shifts to the defendant/defender.

s 28V(1A)

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This means that the education provider mustshow that it is more likely than not that its conductwas not unlawful. Its practical effect in relation toharassment can be summarised as follows:

� To prove an allegation of unlawfulharassment, a claimant or, in Scotland,pursuer must prove facts (from all theevidence before the court) from which it couldbe inferred in the absence of an adequateexplanation that he has been harassed by thedefendant for a reason relating to hisdisability.

� The burden then shifts to thedefendant/defender to prove that the reasonfor the behaviour complained of is in no sensewhatsoever related to the claimant’s disability.

� If the behaviour complained of is proved to bedisability-related, the defendant/defendermust then prove that this behaviour was notengaged in for the purpose of violating thedignity of the claimant/pursuer, or of creatingan intimidating, hostile, degrading,humiliating or offensive environment for him.

� If the treatment complained of is proved to bedisability-related and the defendant/pursuerhas demonstrated it was not engaged in forthat purpose, the court should ask whether theconduct concerned should reasonably beconsidered to have the effect of violating thedignity of the claimant/pursuer, or of creatingan intimidating, hostile, degrading,humiliating or offensive environment for himtaking into account all of the circumstances ofthe case, including in particular theclaimant’s/pursuer’s perception.

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For the purposes of harassment claims, the test todetermine upon whom the burden of proof liesshould in practice comprise a staged process, butthe court hearing does not have to be split intosimilar stages. Instead, these matters should beaddressed in the court judgment after therespective parties have given evidence and madesubmissions.

7.21 If a provision of this Code appears to a court to berelevant it must take that provision into accountwhen determining whether there has beendiscrimination or harassment (see paragraph1.13).

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Introduction

8.1 It is unlawful for an education provider todiscriminate against a disabled person because ofthe person’s disability:

� in the arrangements made for determiningadmissions to the institution

� in the terms on which it offers to admit thedisabled person to the institution, or

� by refusing or deliberately omitting to acceptan application for his admission to theinstitution.

8.2 This chapter examines these principles in moredetail. In order to do so, it is necessary to look atthe various stages of the admissions andenrolment process, from designing the course andadvertising it, to the process of assessingapplicants, interview, selection, enrolment andinduction.

8.3 The ‘acts’ which can constitute unlawful conductin relation to admissions are:

� Direct discrimination (see Chapter 4).

� Failure to make reasonable adjustments (seeChapter 5).

� Disability-related discrimination which cannotbe justified (see Chapter 6).

s 28R(1)

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� Victimisation (see Chapter 7).

� Harassment (see Chapter 7).

General considerations

8.4 An education provider should assess anapplicant’s merits as they would be if anyreasonable adjustments required under the Acthad been made. If, after allowing for thoseadjustments, a disabled person would not meetthe competence standards for the course, theeducation provider does not have to offer a placeto that person. Competence standards areexplained in more detail at paragraphs 5.71 to 5.78and 6.24 to 6.31.

8.5 The Act does not prevent courses beingadvertised as open only to disabled applicants, orto an applicant being preferred for the coursebecause of his disability, although there may beother legal obligations that affect this. Educationproviders will also need to bear in mind theirobligations under sections 49A-49F of the Act andassociated regulations (known as the disabilityequality duties), including the requirement to havedue regard to the need to take steps to takeaccount of disabled people’s disabilities, evenwhere this means treating them more favourablythan non-disabled people.

What are ‘arrangements’ for determiningadmissions to the institution?

8.6 The meaning of ‘arrangements’ – that isarrangements for determining who should beadmitted to the institution – is wide. Sucharrangements are not confined to those which aneducation provider makes in deciding who shouldbe offered a place on a specific course, but also

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include arrangements for deciding who should beoffered places more generally and how coursesare designed. So participation in any pre-courseactivities such as taster sessions could be ‘anarrangement’ if its completion is a necessary stepalong the road to obtaining a place on the course.

Course requirementsHow does the Act affect the way in which coursecriteria and requirements are applied?

8.7 The inclusion of unnecessary or marginalrequirements for entry to a course can lead todiscrimination.

The entrance requirements for a postgraduatediploma in management stipulate that theapplication process will assess whetherapplicants are ‘active and energetic’, when in factthe course is predominately classroom-based.The requirement could unjustifiably excludesome people whose impairments result in themgetting tired more easily than others.

The entrance requirements for a GCSE Frenchcourse state that applicants ‘must be able tospeak clearly’. This requirement couldunjustifiably exclude some people whoseimpairments result in a significant effect on theirspeech.

8.8 Blanket policies (ie policies which do not takeaccount of individual circumstances) can also leadto discrimination. Indeed, such policies are likelyto amount to direct discrimination and so beincapable of justification (see paragraph 4.5).

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A higher education institution states that many ofits courses require a high level of commitmentand that applicants with a history of mentalhealth conditions should not consider applying,believing that such applicants would not be ableto cope with the demands of the course. Theinstitution rejects an applicant solely because hehas a history of mental health conditions,without checking the individual’s history ofeducational progress. This is likely to amount todirect discrimination and therefore will beunlawful.

A college states that anyone with an infectiousdisease cannot take part in a practical cookerycourse. The college refuses to admit someonewith AIDS onto the course, believing him to be ahealth and safety risk. This action is likely toamount to direct discrimination and be thereforeunlawful, as the education provider has notconsidered the actual circumstances of the case.

8.9 Stating that a certain personal, medical or health-related characteristic is necessary or preferablecan lead to discrimination if the characteristic isnot necessary for the course. An educationprovider would therefore need to ensure that anysuch requirements were genuine competencestandards essential for the course.

A university requires all applicants for the sportsscience degree course to have a certain level offitness. However, this level of fitness is notactually essential in order to complete the courseso it is not a genuine competence standard.

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If the university refused to admit a disabledstudent because he does not have this level offitness it is likely that the university will be actingunlawfully.

8.10 Likewise, although an education provider isentitled to specify that applicants for a coursemust have certain qualifications, it will have toshow that these are genuine competencestandards required for the course and that theapplication of the competence standard is aproportionate means of achieving a legitimateaim.

8.11 If an education provider has a genuinecompetence standard for entry onto a course itshould show flexibility in accepting differentqualifications which show an individual meets thenecessary competence standard. In somecircumstances it might be more legitimate andproportionate to waive the requirement for aparticular qualification, if an individual applicanthas alternative evidence of the necessary level ofcompetence.

8.12 An education provider may have to justifyrejecting a disabled person for lacking aqualification if the reason why the disabled personlacks it is related to his disability. Justification willinvolve showing that the particular qualification iseither a genuine competence standard (which isapplied equally to everyone and which isproportionate and legitimate), or, where it doesnot concern application of a competence standard,showing that there is a material and substantialreason for the rejection.

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A university specifies that the entrance criteriafor its degree courses are usually three A levelsand one AS level or an equivalent level ofqualifications. The university rejects a disabledapplicant who has five GCSEs, but has noqualifications at A level or equivalent, due toperiods of disability-related absences. If the levelof qualification required fairly reflects the level ofstudy of the course, and the course cannot bereasonably altered, it is likely that the universitywill be justified in rejecting the disabledapplicant.

An adult education college states that it requiresa level of English language fluency for entranceonto its courses and specifies a particular test oflanguage fluency that it will accept. An applicantwith a speech impairment found that thisparticular test did not allow for additional time tobe given, and as a result she scored much lowerthan she should have done on the test. It is likelythat the college would be unable to justifyrejecting her for not having the required testresult if she could show through an alternativetest that she had the relevant level of fluencyrequired.

8.13 When designing a course, an education providershould consider the anticipatory nature of thereasonable adjustments duty (see Chapter 5) anddesign the course and any assessments to be asaccessible as possible. In addition, educationproviders should regularly review the way coursesare delivered and assessed. Providers will alsoneed to consider these in light of their disabilityequality duties.

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A university designs a new religious studiesdegree course and specifies that a student’sperformance can be assessed through a numberof different assessment methods includingwritten course work, oral presentations andtimed examinations. This enables students tochoose the assessment method which suits thembest and therefore reduces the number ofreasonable adjustments required.

Marketing the course

Can a course advertisement encourageapplications from disabled people?

8.14 The Act does not prevent a course advertisementsaying that the education provider wouldwelcome applications from disabled people. Thiswould be a positive and public statement of theeducation provider’s policy and may also reflect itsobligations under the Disability Equality Duty.More information about good practice in relationto attracting disabled applicants is given atparagraphs 2.25 to 2.27.

What about discriminatory advertisements?

8.15 The Act says that, when advertising a course, it isunlawful for the education provider offering thecourse to publish an advertisement (or cause anadvertisement to be published) which indicates, ormight reasonably be understood to indicate:

� that the success of a person’s application forthe course may depend to any extent on hisnot having any disability, or any particulardisability; or

� that the person determining the application isreluctant to make reasonable adjustments.

s 28UC(1)

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An education provider advertises a course inaccountancy, which states ‘We are sorry, butbecause our classrooms are on the first floor,they are not accessible to disabled people’. Thisis likely to be unlawful. It would be preferable forthe advertisement to state ‘Although ourclassrooms are on the first floor, we welcomeapplications from disabled people and are willingto make reasonable adjustments’.

8.16 This applies to every form of advertisement ornotice, whether to the public or not, for any courseor student service. However, an advertisementmay still be lawful even if it does indicate thathaving a particular disability will adversely affectan applicant’s prospects of success. This will bethe case where, for example, because of thenature of the course in question, the educationprovider is entitled to take the effects of thedisability into account when assessing thesuitability of applicants.

It is likely that it would be lawful for a practicalcourse in electrical component repair to suggestin the prospectus that applicants should have acertain level of manual dexterity.

8.17 The Act does not give individual applicants theright to take legal action in respect ofdiscriminatory advertisements. Such action mayonly be taken by the DRC or the Commission forEquality and Human Rights (CEHR) (seeparagraphs 13.11 and 13.12).

8.18 In addition, the content of the advertisement couldbe taken into consideration by a court in

s 28UC(3)

s 28UC(4)and s 28VA

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determining a claim brought by a disabled personunder the Act.

A man who is a wheelchair user applies for theaccountancy course above and is rejected. Hecould ask the court to take the content of theadvert into account when determining whetherhe was not accepted onto the course for adisability-related reason.

Does an education provider have to provideinformation about courses and student services inaccessible formats?

8.19 Where an education provider providesinformation about a course or student service, it islikely to be a reasonable adjustment for it toprovide information in a format that is accessibleto a disabled applicant. Accessible formats includeemail, Braille, Easy Read, large print, audiotapeand computer disc. A disabled person’srequirements will depend upon his impairment,but on other factors too. For example, many blindpeople do not read Braille but prefer to receiveinformation by email or on audiotape. As the dutyto make reasonable adjustments is an anticipatoryone, an education provider would be expected tohave most general information such asprospectuses and course leaflets available in anumber of formats.

A woman with a visual impairment asks for aprospectus to be sent to her in a commonly-usedelectronic format, so that it is compatible withher screen reading software. This is likely to be areasonable adjustment for the educationprovider to make.

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A further education college advertises coursedetails on its website. The website does notallow for text to be enlarged. A man with a visualimpairment notifies the education provider thathe would like to apply for a course, but that hecannot read the course details on the website. Itis likely to be unlawful for the college to refuse tomake the website accessible to the disabled man,unless it is prepared to provide him with thesame information in an accessible format.

Recruitment activities

8.20 The Act covers all recruitment activities, whetheraimed at ‘home’ or international students.Education providers are expected to ensure thatall front-line staff (including any agents involvedin recruiting overseas and office staff answeringtelephone enquiries) are aware of the need tomake reasonable adjustments for disabled peopleand have been trained in communicating with awide range of disabled people.

8.21 It is also good practice to ensure that all front-linestaff know what provision the education provideralready makes for disabled students, and theprocess for ensuring that reasonable adjustmentsare made.

8.22 Where an education provider holds recruitmentfairs and other recruitment activities, it is theeducation provider’s responsibility to ensure thevenue is accessible and the materials handed outare available in alternative formats.

8.23 The duties also cover open days, campus tours,summer schools, taster courses and mentoringschemes with local schools.

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Does an education provider have to acceptapplications in accessible formats?

8.24 Where an education provider invites applicationsby completing and returning an application form,it is likely to be a reasonable adjustment for it toaccept applications which provide the necessaryinformation in accessible formats. However, adisabled person might not have a right to submitan application in his preferred format (such asBraille) if he would not be substantiallydisadvantaged by submitting it in some otherformat (such as email) which the educationprovider would find easier to access. Whereapplications are invited by completing andreturning a form on-line, that form should beaccessible to disabled people (or an accessiblealternative should be provided).

An applicant for a course asks to submit hisapplication in audio format rather than using thestandard application form. It is likely to be areasonable adjustment for the educationprovider to allow this.

A college requires all applicants to fill out anapplication form by hand. It does not allowdisabled students to type the form or anotherperson to fill the form in for them. This is likely tobe unlawful.

8.25 Whether or not an application is submitted in anaccessible format, education providers and theirstaff or agents must not discriminate againstdisabled people in the way that they deal withtheir applications.

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Admissions processWhen must an education provider makeadjustments to its selection, assessment andinterview arrangements?

8.26 An education provider is required to makechanges in anticipation of applications fromdisabled people in general. When an educationprovider becomes aware of an individual disabledperson’s need for reasonable adjustments, theseshould be put in place in the admissions process.

When should an education provider offer adisabled person a pre-course assessment?

8.27 An education provider that uses pre-courseassessments such as interviews or auditions willneed to consider whether it should makereasonable adjustments when deciding to whomto offer a pre-course assessment. This will be thecase if an education provider knows or ought toknow that an applicant has a disability and is likelyto be at a substantial disadvantage because of itsrecruitment arrangements or the premises inwhich any pre-course assessments are held. Inthese circumstances, the education providershould consider whether there is any reasonableadjustment which would remove thedisadvantage. Any such adjustment should betaken into account when shortlisting applicants. Ifthe education provider cannot make thisjudgement without more information it would bediscriminatory for it not to put the disabled personon the shortlist for pre-course assessment if that ishow it would normally seek additional informationabout applicants.

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What adjustments might an education providerhave to make when arranging or conducting pre-course assessments?

8.28 Education providers should think ahead for pre-course assessments. Depending upon thecircumstances, changes may need to be made toarrangements for the assessments or to the wayin which assessments are carried out.

An applicant with a hearing impairment informsthe university who has asked him to interviewthat he lip-reads and will need to be able to seethe interviewer’s face clearly. The interviewerensures that her face is well lit, that she faces theapplicant when speaking, that she speaks clearlyand is prepared to repeat questions if thecandidate does not understand her. These arelikely to be reasonable adjustments for theuniversity to make.

A further education college arranges a BritishSign Language (BSL) interpreter to attend aportfolio session with a deaf candidate who usesBSL to communicate. This is likely to be areasonable adjustment for the educationprovider to make.

A college allows a person with autism to bring asupporter with him to facilitate the dialogue atthe interview by rephrasing questions wherenecessary to make them clearer and to help theapplicant understand what the interviewer wantsto know.

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8.29 It is a good idea to give applicants the opportunityto indicate any relevant effects of a disability andto suggest adjustments to help overcome anydisadvantage the disability may cause at anassessment. This could help the educationprovider avoid discrimination in the assessmentand in considering the application, by clarifyingwhether any reasonable adjustments may berequired. However, an education provider mustnot assume that no adjustments need to be madesimply because the applicant has not requestedany (see paragraph 5.11).

8.30 The practical effects of an education provider’sduties may be different if a person whom theeducation provider previously did not know, andcould not reasonably be expected to have known,to be disabled arrives for an assessment and issubstantially disadvantaged because of thearrangements. The education provider shouldhave anticipated reasonable adjustments thatmight be required by disabled people in generaland therefore should be able to put them in placevery quickly if necessary. The education providerwill still be under a duty to make a reasonableadjustment from the time that it first learns of thedisability and the disadvantage. However, theeducation provider might not be required to do asmuch as might have been the case if it had known(or if it ought to have known) in advance about thedisability and its effects.

An applicant for a course at a university does nottell the university in advance that she uses awheelchair and the university does not know ofher disability. On arriving for interview shediscovers that the room is not accessible.Although the university could not have beenexpected to make the necessary changes in

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advance, it would be a reasonable adjustment tohold the interview in an alternative, accessibleroom if one was available. In order to complywith the anticipatory duty the university shouldalways use accessible rooms for interviews.

What about tests in the admissions process?

8.31 The Act does not prevent education providerscarrying out tests. However, routine testing of allapplicants may still discriminate against particularindividuals or substantially disadvantage them. Inthose cases, the education provider would need torevise the tests – or the way the results areassessed – to take account of a disabled applicant.This does not apply, however, where the natureand form of the test is necessary to assess acompetence standard. The following are examplesof adjustments which may be reasonable:

� allowing a disabled person extra time tocomplete the test

� permitting a disabled person the assistance ofa reader or scribe during the test

� assessing a disabled person by a differentmethod.

The extent to which such adjustments might berequired would depend on how closely the test isrelated to the course in question and whatadjustments the education provider might have tomake if the person was on the course.

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A college sets applicants for a higher levellanguage course a short oral exercise. A personwith a speech impairment is given additionaltime to complete the exercise. This is likely to bea reasonable adjustment.

8.32 Where education providers rely on the results oftests conducted by external bodies, they shoulddiscuss with the external body the need to makereasonable adjustments for disabled students.Refusing a place to a disabled applicant whoperformed badly on tests that were conductedwithout any necessary reasonable adjustmentsrequired is likely to be unlawful.

Less formal admissions processes

8.33 Not all students are admitted through a formaladmissions system. Many are taken on byindividual departments or may even just turn upto one-day courses or taster days. Educationproviders need to ensure that all staff responsiblefor admissions and enrolments are aware of theeducation provider’s duties towards disabledpeople. It is good practice to encourage disabledpeople to let the education provider know aboutany reasonable adjustment requirements inadvance. However, the education provider shouldhave anticipated the need for reasonableadjustments and therefore be able to respond tomany reasonable adjustment requestsimmediately.

European and other international students

8.34 European and international students have thesame rights under the Act as home students.Education providers need to ensure that they have

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in place the necessary systems to identify theneeds of disabled students coming from overseas.

Professional and vocational courses

8.35 Some courses which lead to professional or tradequalifications are validated by professionalqualification bodies which require particularentrance requirements. Education providers alsohave duties under Part 4 to ensure that they haveclearly identified, with the qualifications body,which entry requirements are genuinecompetence standards and which are not andtherefore subject to the reasonable adjustmentsduty. Qualifications bodies have duties under Part2 of the Act not to discriminate against disabledpeople. (For more details see the Code of Practicefor Trade Organisations and Qualifications Bodies– see Appendix C for further details.)

Enrolment and induction

8.36 Enrolment and induction are importantopportunities for education providers to gatheruseful information from disabled students abouttheir support needs. It is important that suchevents are held in accessible venues and disabledpeople are provided with an opportunity todiscuss their disability and any reasonableadjustment requirements in confidence.

Knowledge of students’ disabilities andconfidentiality

8.37 There is no duty on a student to disclose adisability. However, education providers areexpected to take steps to find out about astudent’s disability. Even when an educationprovider does not know that a student or applicantis disabled, it can still be liable for direct

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discrimination or disability-related discrimination.Once a student has disclosed a disability, or oncean education provider might reasonably beexpected to know about a student’s disability (forexample, if it is visible to others), the institutionhas a responsibility to make reasonableadjustments. Students do have a right toconfidentiality but should be made aware of this,but also that this may place restrictions on thereasonable adjustments that an educationprovider can make (see paragraphs 5.26 to 5.28).For some courses there may be other legalrequirements that students disclose certaindisabilities or conditions.

8.38 Applicants should be encouraged to disclose adisability and any reasonable adjustmentrequirements both when applying for a courseand when offered a place. This requires aconfidentiality policy which ensures theinformation will not be misused and givesapplicants confidence in the system. It isimportant to provide students with an ongoingopportunity to disclose a disability. This ensuresthat people who develop a disability during theirtime as a student or people with changing needshave reasonable adjustments.

When can an education provider askquestions about a disability?

8.39 The Act does not prohibit an education providerfrom seeking information about a disability.However, disability-related questions must not beused to discriminate against a disabled person. Aneducation provider should only ask suchquestions if they are, or may be, relevant either toa disabled person’s reasonable adjustmentsrequirements or to the person’s ability to do the

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course – after a reasonable adjustment, ifnecessary.

An applicant with a visual impairment is asked atinterview whether or not she was born with thatcondition. This is irrelevant to her ability to dothe course and may upset the applicant,potentially preventing her from performing aswell as she would otherwise have done. This islikely to be unlawful.

An applicant who is a wheelchair user is askedwhether any changes may be needed to theteaching and learning arrangements or physicalenvironment at the university to accommodatehim. This would not be unlawful.

8.40 Asking a basic question as to whether or not aperson is disabled is unlikely to yield any usefulinformation about that individual for the educationprovider. In addition, making decisions about whoto offer places to on the basis of an applicant’sresponses to questions about disability may bediscriminatory if the education provider has notascertained the likely effects of a disability ormedical condition on the applicant’s ability to dothe course, or whether reasonable adjustmentswould overcome any disadvantage it causes.

An application form includes the statement‘Please let us know if you require any reasonableadjustments, due to disability, to enable you toattend any pre-course assessment (such asinterviews or auditions), or which you wish us totake into account when considering yourapplication. Reasonable adjustments are things

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like sign language interpreters, altering times ofpre-course assessments, or making the rooms inwhich pre-course assessments are heldaccessible for you. If you would like to discussyour disability requirements further, pleasecontact the Admissions Office’. This will not bediscriminatory and is acceptable as it will helpthe education provider to comply with its dutiesunder the Act.

8.41 In addition, once a decision has been made tooffer a place on a course to a disabled person, it isgood practice for an education provider to discussreasonable adjustments with him before he startsthe course and provides opportunities for furtherdiscussion whilst he is on the course.

8.42 An education provider will also need to gatherinformation on disabled applicants in order tocomply with the Disability Equality Duty. Moreinformation about requirements in relation togathering information is given in paragraphs 2.14to 2.24.

Can a disabled person be required to have amedical examination?

8.43 Although the Act does not prevent an educationprovider from asking a disabled person to have amedical examination, an education provider willprobably be acting unlawfully if, withoutjustification, it insists on a medical check for adisabled person but not for others. The fact that aperson has a disability is, in itself, unlikely tojustify singling out that person to have a healthcheck – although this might be justified in relationto some courses. As explained in paragraph 6.23the education provider should ensure that anyone

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carrying out a medical assessment is aware of thespecific circumstances. An education providershould not follow the recommendation of amedical report if it is based on generalisedassumptions about disabled people.

8.44 An education provider may, however, ask adisabled person to undergo an assessment oftheir reasonable adjustment requirements. Thismay be as part of the process of applying forDisabled Students’ Allowance.

Offers of admission

8.45 Terms of admission should not discriminateagainst a disabled person. In general, aneducation provider should not offer admission toa disabled person on terms which are lessfavourable than those which would be offered toother people.

An adult education centre informs a student withepilepsy that he may not enrol on a courseunless he has an assistant with him at all timesin case he has a seizure. In the past the studenthas only had seizures during the night. Thecentre’s demand is likely to be unlawful.

A university has many applications for a popularcourse. In order to cut down the numbers thatthe admissions tutor has to look through, theadministrator sets to one side all applicationsfrom disabled students. These applicants areconsidered only if places remain after all otherapplicants have been considered. This is likely tobe unlawful.

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Introduction

9.1 It is unlawful for an education provider todiscriminate against a disabled student because ofthat person’s disability:

� in the student services it provides, or offers toprovide; or

� by excluding him from the institution eitherpermanently or temporarily.

9.2 This chapter examines these principles in moredetail. In order to do so, it is necessary to look atvarious aspects of student services and thearrangements for excluding students.

9.3 The ‘acts’ which can constitute unlawful conductin relation to student services and exclusions are:

� Direct discrimination (see Chapter 4).

� Failure to make reasonable adjustments (seeChapter 5).

� Disability-related discrimination which cannotbe justified (see Chapter 6).

� Victimisation (see Chapter 7).

� Harassment (see Chapter 7).

s 28R(2) and(3)

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Student services

9.4 ‘Student services’ are any services that aneducation provider provides, or offers to provide,wholly or mainly for students.

9.5 Student services will vary from one provider toanother, but might include, for example:

� teaching, including classes, lectures,seminars, practical sessions

� curriculum design

� examinations and assessments

� enrolment and induction

� field trips and outdoor education

� arranging study abroad or work placements

� outings and trips

� research degrees and research facilities

� informal/optional study skills sessions

� short courses

� day or evening adult education courses

� training courses

� distance learning

� independent learning opportunities such ase-learning

� learning facilities such as classrooms, lecturetheatres, laboratories, studios, darkrooms, etc

� learning equipment and materials such aslaboratory equipment, computer facilities,class handouts, etc

� libraries, learning centres and informationcentres and their resources

s 28R(11)

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� information and communication technologyand resources

� placement-finding services

� careers advice and training

� careers libraries

� job references

� job shops and employment-finding services

� graduation and certificate ceremonies

� leisure, recreation, entertainment and sportsfacilities

� the physical environment

� chaplaincies and prayer areas

� health services

� counselling services

� catering facilities

� childcare facilities

� campus or college shops

� car parking

� residential accommodation

� accommodation-finding services

� financial advice

� welfare services.

9.6 However, educational providers often makeprovision that is wholly or mainly for other groupsof people, not students. These are not covered byPart 4 of the Act. Examples might include:

� commercial conference facilities (these wouldbe covered by Part 3 of the Act)

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� commercial research or consultancy services(these are likely to be covered by Part 3 of theAct)

� services and facilities for staff (these would becovered by Part 2 of the Act).

The following paragraphs look in more detail atwhat might have to be done in relation to certainaspects of student services.

Induction

9.7 Education providers must not discriminate in theirinduction procedures. The education provider mayhave to make adjustments to ensure a disabledperson is introduced into an institution in a clearlystructured and supported way, with anindividually-tailored induction programme ifnecessary.

A further education college distributes writtencopies of course details and contact informationas part of the induction process for new students.A student with a visual impairment requests thatthe information is made available in large print.This is likely to be a reasonable adjustment.

A university library holds a series of inductionsessions for each course group on how to usethe library services. A disabled student is unableto attend the session for her course groupbecause of the scheduling of her personal carearrangements. She informs the relevant librarystaff of this, and they invite her to attend analternative session. This is likely to be areasonable adjustment.

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Teaching and learning

9.8 Education providers must ensure that all aspectsof teaching and learning do not discriminateagainst disabled students. This includes classes,lectures, seminars, practical sessions, individualtutorials, field trips and work placements. Thepurpose of the legislation is to enable disabledpeople to gain access to learning opportunities.Course leaders and course developers need,therefore, to be precise about what is, and what isnot, a competence standard (see paragraphs 5.71to 5.78 and 6.24 to 6.31), so that they can assesswhere adjustments to teaching practices may beintroduced. Wherever possible courses andteaching practices should be designed to beaccessible so that only minimal adaptations needto be made for individuals. This will also helpeducation providers to ensure they are complyingwith the anticipatory aspect of the duty.

9.9 Staff need to know what is expected of them andto be resourced to respond appropriately tostudents’ needs. This might include ensuring thatstaff have had appropriate training in makingteaching and learning more accessible to disabledstudents, ensuring that staff know how to putreasonable adjustments in place and ensuring thatstaff are aware of the advice and support serviceswhich are available within the institution fordisabled students.

9.10 Some very simple adaptations by tutors andlecturers to their teaching practice can help toensure disabled students are not substantiallydisadvantaged.

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A lecturer reads out what he writes on the boardand verbally describes any pictures orillustrations he uses to ensure that a visuallyimpaired student is able to access the visualmaterial displayed in lectures.

9.11 Some adjustments may be necessary to ensurethat disabled students can fully contribute to, andbenefit from, group projects. This may requiresupporting and advising other students within thegroup to ensure that the necessary adjustmentsare made and assessing group work to ensure thatevery student’s contribution is appropriatelymeasured.

Students on a course which involves group workare given a short lesson on how to communicateeffectively with a student who lip-reads.

9.12 There is no reason why most practical sessionsshould not be accessible to disabled students.Specific adjustments may need to be to made tomeet the needs of particular individuals.

A student with a hearing impairment finds it hardto hear instructions given in a noisy workshop.The tutor provides her with written instructionsin advance of each class.

Work placements, field trips and studyabroad

9.13 Study beyond the confines of the institution isincreasingly important for many courses, andrequired by some. With careful planning and

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monitoring, most work placements, field trips andstudy periods abroad can be accessible to mostdisabled students. Where a student is undertakingpractical work experience as part of theirvocational training the work placement providerwill have duties under Part 2 of the Act. Where astudent is studying at another educationinstitution, that institution may have duties underPart 4 of the Act. This is explained in more detailin Chapter 11.

As part of a life skills course, students attend acentre for outdoor activities. The college ensuresthat the centre has the necessary expertise ofworking with disabled students and is aware ofany requirements that the students may have.They also ensure that risk assessments arecarried out where necessary and give thedisabled students the opportunity to raise anyissues with them relating to the trip.

Academic progression and transfer

9.14 Education providers must ensure thatarrangements for progression, or for transferringbetween courses, do not discriminate againstdisabled people. Education providers must notdiscriminate in the practical arrangementsnecessary to enable the progression or transfer totake place or, of course, in the new course itself.Reasonable adjustments may need to be made tothe various stages in the progression or transferprocess.

An adult education college offers a range ofcourses at different levels in music. At the end ofthe course, certain students who are thought to

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be capable of progression onto the next level ofstudy are told to apply for the next course. Astudent with dyslexia completes his level onecourse, but his tutor does not tell him to applyfor the level two course, because he wronglyassumes that his dyslexia will mean that hecannot sight read music and he will not be ableto cope with the course. This is likely to amountto unlawful discrimination.

A disabled university student opts to take anelective module in another department as part ofhis course. The department that delivers theelective module asks what reasonableadjustments the student will require, makesthese adjustments to the application process andinforms its staff of the adjustments they will needto have in place in advance of the studentstarting the course.

9.15 As with other aspects of student services,education providers will be better placed toensure that progression and transferarrangements do not discriminate againstdisabled people if they have established andimplemented policies and practices to counterdiscrimination generally (see paragraph 2.13).These will help education providers to check, forexample, that the requirements for progression ortransfer are genuine competence standards for thecourse, and to monitor other arrangements – suchas systems for determining competence standards– so that they do not exclude disabled people whomay have been unable to meet those criteriabecause of their disability but who would becapable of completing the course.

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Assignments and assessments

9.16 Adjustments may be necessary to assignmentsand assessments to enable disabled students tofully demonstrate their learning. Adjustments mayinclude:

� flexible deadlines for those with variableconditions

� support in researching booklists for thoseunable to ‘browse’ in the library

� adjustments to assignments, such as allowinga student to submit a piece of work on videorather than in writing

� provision of study skills support coveringessay writing or dissertation skills

� comments on course work in alternativeformats

� adjustments to the design or delivery of anexamination

� altering the mode of an assessment if aparticular method, for example anexamination, sets up unnecessary barriers.

Further information about assessments,examinations and qualifications for students isprovided in the following paragraphs. Chapter 10concerns discrimination in relation toqualifications conferred by education providersupon non-students.

Competence standards and qualifications

9.17 It is obvious that an education provider willdifferentiate between individuals when conferring,renewing or extending qualifications. However, indoing so, it should avoid discriminating against

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disabled people because of that person’sdisability.

9.18 Identifying genuine competence standards will becrucial to avoiding discrimination in the area ofqualifications. What the Act says aboutcompetence standards is explained in paragraphs5.71 to 5.78 and 6.24 to 6.31.

9.19 A competence standard which results in directdiscrimination is not a genuine competencestandard and education providers who apply suchstandards will be acting unlawfully.

A further education college confers its ownqualifications for a course in travel and tourism.One of the criteria for passing the course is‘speaking clearly in a customer servicesenvironment’. A disabled student whoseimpairment affects her speech does not achievethe qualification because of this criterion.Applying this standard may be unlawful.

9.20 Paragraphs 6.25 to 6.29 explained that disability-related discrimination which is the result of theapplication of a genuine competence standard canbe justified but only if the education provider canshow that:

� the standard is (or would be) applied equallyto people who do not have his particulardisability, and

� its application is a proportionate means ofachieving a legitimate aim.

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A university has a set of criteria for awarding full-time honours degrees. These include ‘thecompletion of all courses within a three-yearperiod’. During the course of her study, adisabled student took a period of disability leave,and completed her degree over four years. As aresult, the university awards her with a degreewithout honours because she did not meet all thecriteria. Although this criterion is applied equallyto all students, it is unlikely to be a proportionatemeans of achieving a legitimate aim becausethere is no necessity to complete the coursewithin a three-year period in order todemonstrate the necessary ability. The treatmentof the woman is for a disability-related reason(completing the course over four years due toher disability). The treatment is less favourablethan the way in which someone who did nothave the disability leave would have beentreated. It would, therefore, amount to disability-related discrimination unless the university (in itsrole of conferring qualifications) can justify it.

9.21 An education provider has a duty to makereasonable adjustments to the way it confers,renews or extends qualifications (except in respectof competence standards). It owes this duty to adisabled person who holds a qualificationconferred by it and to a disabled applicant orpotential applicant for such a qualification.

9.22 Chapter 5 explained that this duty to makereasonable adjustments is an anticipatory dutyowed to disabled people and students at large. Itdoes not only arise when an individual student orapplicant for a qualification presents himself tothe education provider. This is particularly relevantin the assessment of students for qualifications as

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it will often be too late to make reasonableadjustments to the assessment process if aneducation provider waits until the disabledstudent or applicant presents himself forassessment.

A further education college delivers a GCSEcourse in French. In advance of the date of theexamination, the course tutor makes studentsaware of the permitted access arrangements andasks students individually whether they willrequire any reasonable adjustments. The tutorensures that any modified test papers that arerequired are ordered and that the room that willbe used for the examination is accessible andmeets the access requirements of all disabledstudents who will be sitting the exam.

9.23 It is very important to ascertain whether aparticular provision, criterion or practice of aneducation provider is a competence standard and,if so, whether the matter at issue concerns theapplication of that standard to the disabled personconcerned. Although there is no duty to makereasonable adjustments in respect of theapplication of a competence standard, such a dutyis likely to apply in respect of the process bywhich competence is assessed.

A student with a visual impairment asks to beprovided with a desk lamp and a larger desk thatcan accommodate his large print test paper.These are likely to be reasonable adjustments.

A deaf student takes an examination in danceand drama. The examiner ensures that the deaf

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student correctly understands any instructions hegives during the assessment and provides apalantypist to transcribe the questions. These arelikely to be reasonable adjustments.

9.24 Where it applies, the duty to make reasonableadjustments is likely to affect arrangements inrelation to, for example, taking tests andexaminations, and renewing qualifications whereit is necessary to do so. Where the duty doesapply the education provider must take such stepsas are reasonable to prevent the provision,criterion or practice, or the physical feature (as thecase may be) from placing the disabled person inquestion at a substantial disadvantage.

A disabled student with a mental health problemis informed that an oral examination for herGerman course has been arranged for 8:30 am.The timing of the examination wouldsubstantially disadvantage the woman, becausea side effect of her medication is extremedrowsiness for several hours after taking hermorning dose – which prevents her fromconcentrating well. The university agrees to herrequest to take the examination later in the day.This is likely to be a reasonable adjustment.

A disabled man asks for twice as much time for atest in shorthand because his disability makes itimpossible for him to write quickly. There is norequirement to make this adjustment becausespeed is an essential element of the shorthandqualification – in other words, it is likely to be acompetence standard, and thus the duty to makereasonable adjustments does not apply.

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9.25 There is no breach of the duty to make areasonable adjustment for an individual student orapplicant, or to avoid disability-relateddiscrimination by an education provider if it doesnot know or could not reasonably have beenexpected to know, that the person is disabled orthat they are an applicant, or a potential applicant,for a qualification which the education providerconfers.

9.26 Where information is available which should alertan education provider to the fact that an individualmay be disabled, or would be if it were reasonablyalert, the education provider cannot simply ignoreit. It is thus a good idea for education providers tohave the necessary procedures in place to enableand encourage disabled people to let educationproviders know of their disability and ofsubstantial disadvantages that are likely to arise.The earlier an education provider is told about adisability and its effects, the more likely it is to beable to make effective adjustments.

9.27 A system for gathering the necessary informationcould comprise the following steps:

� Well in advance of the examination orassessment in question, the educationprovider seeks information from candidatesabout whether they have disabilities whichmake reasonable adjustments necessary.

� Students may be given a contact within theeducation provider (or separate qualificationsbody if appropriate) with whom they candiscuss their requirements further.

� The education provider (or qualificationsbody) uses the information it obtains to decidewhat adjustments should be made. It then

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notifies the student/applicant of its decision,and discusses with them how suchadjustments will be implemented.

In advance of an examination for a coursemodule, a university tutor asks his studentswhether they require reasonable adjustments tobe made in respect of their examination. Astudent who is blind informs his tutor that herequires a paper in Braille and that he willrespond in Braille. The tutor relays the request tothe exams office, which ensures that the studentwill be provided with a Braille paper andarranges for a Braille translation to be made sothat the tutor can mark the student’s paper.

9.28 Some education providers provide education,training or other services (such as facilities fortaking examinations or assessments) which leadto the attainment of a professional or tradequalification, even though they do not confer thequalification. Although the education provider willstill have duties under Part 4 in respect of theeducation, training or other services they provide,the professional body conferring the qualificationwill have duties under Part 2 of the Act. To ensurefull compliance with the Act, it is advisable forsuch institutions or bodies to inform qualificationsbodies at an early stage about an applicant’sdisability and its relevant implications – subject, ofcourse, to obtaining the applicant’s consent first.

9.29 Where the qualification is being conferred byanother body, such as a professional bodyawarding a professional or trade qualification, or ageneral qualifications body awarding a generalqualification, it is advisable for educationproviders to set up systems for working with suchqualifications bodies. The education provider is

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likely to have a crucial role in ensuring that suchqualifications bodies obtain the information thatthey need to make adjustments for disabledstudents who are taking examinations or otherassessments.

A partially sighted man on a course has alwayshad course information provided to him in largeprint by the college as a reasonable adjustment(under Part 4 of the Act), and he has used a desklight when taking internal tests as part of hiscourse. With the man’s consent, the collegeinforms the qualifications body that he needs anexamination paper in large print forexaminations set by this body. The collegeprovides him with a desk light for suchexaminations.

Discrimination in qualifications in practice

9.30 Generally, the purpose of an assessment is todetermine a student’s competence in a particulararea. To do this, examinations and assessmentsmust be rigorous regarding standards so that allstudents are genuinely tested against abenchmark. But, similarly, if they are to fulfil theirpurpose, they must also be flexible regarding themode of measurement so that each student hasan equal opportunity to demonstrate theircompetence. In some cases this may meanchanging the existing examinations or assessmentpractices within an institution. In all cases it willmean being clear about precisely what is beingassessed so that the necessary reasonableadjustments can be made without compromisingthe competence standards.

9.31 Making reasonable adjustments to the assessmentprocess will not normally mean differential

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marking, although this may be appropriate insome cases. Changing the delivery or mode ofassessment to one that is accessible to as manystudents as possible will reduce the need to makenumerous reasonable adjustments for individualstudents and should mean that the educationprovider will be complying with the anticipatoryduty. There will, however, still be circumstanceswhere reasonable adjustments are required forindividual students. Each disabled student willhave different needs and may need differentreasonable adjustments. Adjustments need to bedetermined and administered on an individualbasis.

A college discusses with three students withdyslexia their requirements for examinations. Forone student the college sets additional coursework in place of an examination. For another, thecollege provides additional time in theexamination for the student to read and checkanswers. For a third, they allow the student touse a word processor in the examination.

9.32 Many examinations and assessments forqualifications are likely to be administeredcentrally, whilst some will be administered byindividual departments and tutors. In order tocomply with its duties under the Act, it isimportant that an education provider has a clearpolicy about adjustments to examinations andassessments for disabled students. Studentsshould be aware that they can requestadjustments to examinations and assessmentsand be aware of the process for doing so. Thisshould be the case even if a student has notpreviously disclosed a disability or requested anyreasonable adjustments. The system should besufficiently flexible to respond to the needs of all

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disabled students and not just those who need‘standard’ adjustments. The system should allowtime for the reasonable adjustments to bediscussed with the individual disabled student toensure that adjustments are appropriate for eachindividual’s requirements.

Written examinations

9.33 Many disabled students may be substantiallydisadvantaged in a traditional written examinationbecause of the stamina required to continuewriting or concentrating for a sustained period oftime. In addition, the examination paper itselfmay present a barrier, because the language inwhich it is written may be easy to misinterpret bya student whose first language is Sign Languageor who has dyslexia. The following list, whilst notexhaustive, provides some examples of steps aneducation provider may take to prevent a writtenexamination placing a disabled student at asubstantial disadvantage:

� Checking that the wording of the paper is asclear and straightforward as possible.

� Providing a reader or interpreter to read out orinterpret questions.

� Providing the paper in large print, Braille orother formats.

� Allowing extra time for students who are deafor dyslexic so that they can spend more timeensuring they understand the question, orchecking their answers for spelling andgrammar.

� Allowing rest breaks for students whoexperience fatigue or who have backproblems and need to stretch.

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� Providing an amanuensis to write theanswers. Students may need some time topractice with an amanuensis before the exam.

� Allowing a student to submit scripts on acomputer. This will also entail making surethere are technicians on hand to deal with anytechnical problems.

� Ensuring that those with extra time or otherarrangements sit their exam in a separate, butsuitable, room to prevent them disturbing, orbeing disturbed by others.

Vivas, orals and presentations

9.34 Vivas, orals and presentations may place somedisabled students at a substantial disadvantage,whereas for others they may remove thesubstantial disadvantage caused by a writtenexamination. Where a viva, oral or presentation isessential to assess the necessary competencestandards there is still a requirement to makereasonable adjustments to the process.

A university arranges a British Sign Language(BSL) interpreter for a deaf student whocommunicates in BSL to interpret questions atthe deaf student’s viva. The university alsoallows additional time to account for the timetaken for the interpretation. These are likely to bereasonable adjustments.

Practicals and performances

9.35 Many qualifications are assessed by the means ofa demonstration of practical skills. Although thecompetence standard may require all students todemonstrate that they have the necessary

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practical skills, there may still be reasonableadjustments that could be made to the process ofassessment.

A student whose disability affects his manualdexterity is allowed to use an assistant tomeasure chemicals and set up apparatus underhis instruction for an assessment in chemistry.This is likely to be a reasonable adjustment.

Dissertations and course work

9.36 Some disabled students may be at a substantialdisadvantage when producing course work.Although many courses require students toproduce regular pieces of course work, and attimes lengthy pieces of written work, theproduction of this work within a certain timeperiod or a certain format is unlikely to be agenuine competence standard. Although allowinga student more time to complete course work mayseem in some circumstances to be an appropriatereasonable adjustment it may disadvantage thestudent in other ways, for example, they areattending lectures on a new topic whilst stillcompleting course work on an earlier topic.Discussion with the student will assist in ensuringthe appropriate reasonable adjustments are beingmade.

A student with dyslexia is given flexibility in thedeadlines for course work. To support thestudent, the disability office arranges for studyskills support covering essay writing anddissertation skills.

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Work-based assessment

9.37 Some courses will require students to be assessedin the work place. The education provider shouldwork closely with the work placement provider oremployer to ensure that the necessary reasonableadjustments are in place to prevent the studentbeing placed at a substantial disadvantage in theassessment. This may involve making alterationsto the traditional assessment method, providingauxiliary aids or services and ensuring that theassessors in the work place are trained inassessing disabled people in alternative ways.Providers of work placements have duties underPart 2 of the Act.

A disabled student who is visually impaired anduses screen reading software is assessed in theoffice environment in which he is working as partof his qualification in administration. The courseprovider discusses with the student and theassessors the way to ensure that the assessmentis fair and takes account of the screen readingsoftware that the student uses.

Alternative types of assessment

9.38 Examination and assessment methods should beconsidered for accessibility at the course planningand review stages as this will reduce the need toprovide alternative types of assessment.However, where it is not possible to makeadjustments to prevent disabled students beingplaced at a substantial disadvantage whenundertaking the same assessment methods asother students, it may be appropriate to offeralternative assessment methods. It is important toseparate the competence standard being assessedfrom the method of assessment.

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An adult education college arranges for a studentwho experiences high levels of stress in a closedexamination environment to produce anadditional piece of course work rather than take afinal exam.

Retention of disabled students

9.39 An education provider must not discriminateagainst a student who becomes disabled, or whohas a disability which changes in its effects.

9.40 If as a result of the disability the student is at asubstantial disadvantage, the education providermust consider any reasonable adjustment thatwould resolve the difficulty. The nature of theadjustments which an education provider mayhave to consider will depend on the circumstancesof the case, but the following considerations willalways be relevant:

� The education provider should consult thedisabled person at appropriate stages aboutwhat his needs are and, where the student hasa progressive condition, what effect thedisability might have in the future, so thatreasonable adjustments may be planned.

� In appropriate cases, the education providershould also consider seeking expert advice onthe extent of a disabled person’s impairmentand on what might be done to changepremises or study arrangements. Where astudent has been absent, a phased returnmight be appropriate.

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A student on a three-year degree course with amental health condition has an episode whichaffects his attendance and submission ofassessments. The student and the universitydiscuss the most appropriate reasonableadjustments that can be made. As a result, thestudent takes a short period of disability-relatedleave and the university arranges a gradualreturn, with support from his personal tutor tomanage his workload and from the disabilityoffice to support him with the other demands ofuniversity life.

9.41 It may be possible to modify a course toaccommodate a student’s changing needs. Thismight be by changing teaching methods, or byproviding practical aids or adaptations topremises or equipment, or allowing the disabledperson to study at different times or places. It maybe that a change to part-time study or distancelearning is appropriate.

Libraries and study facilities

9.42 Education providers should ensure that disabledstudents are not discriminated against inaccessing library and other study facilities. As wellas ensuring that the buildings are physicallyaccessible, they should also consider the otherways that students access the service and ensurethat these procedures do not discriminate againstdisabled students.

A library at a higher education institution reviewsits practices and procedures to ensure that it isaccessible for disabled students. This includesmaking changes to the electronic catalogue so

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that it is compatible with students using assistivetechnology or software; making short loanperiods more flexible for students whoseimpairments mean that they read slowly;providing free photocopy cards to students whoneed to enlarge text books by photocopyingthem because of their visual impairment;stocking large-print books where available andintroducing a priority booking system forindividual study rooms and computer stations fordisabled students who have greater need forthese facilities than other students.

Centrally-provided services

9.43 Centrally-provided services such as careersadvice, counselling, academic advice, cateringfacilities and leisure facilities are all ‘studentservices’ for the purpose of the Act. Educationproviders should ensure that the way in whichthese services are provided does not discriminateagainst disabled students. This includes thoseservices which are contracted out to a third party(for more details of third party relationships seeChapter 11).

The canteen at an adult education collegeprovides non-sugar options for students whohave insulin-dependent diabetes.

The sports hall at a university changes itslighting and introduces greater colour contrastand larger signage so that students with visualimpairments can find their way around thefacilities more easily.

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Accommodation

9.44 Many education providers also provideaccommodation and accommodation-findingservices for students. Where this is the case,education providers should ensure that disabledstudents are not discriminated against in theprovision of accommodation. As well as ensuringthat they have an appropriate number ofaccessible rooms, education providers also needto consider the distance of the residentialaccommodation from teaching areas, theprocedure for allocating accommodation and theadditional support a disabled student may requirein finding off-campus accommodation. Where adisabled student is allocated a particular room fora disability-related reason the student should notthen be charged at a higher rate than otherstudents, as this is likely to amount todiscrimination.

A disabled person who is visually impairedapplies to a university. In providing her first yearaccommodation, the university allocates anappropriate room that allows space for her guidedog, discusses the particular requirements of theaccommodation with the student and makeschanges to colour contrast and signage in thehalls of residence in advance of her arrival.

Keeping adjustments under review

9.45 In some instances a disabled student’s reasonableadjustment requirements will change during theirtime on the course. Education providers may needto explore different adjustments with a disabledstudent to see what works best. Differentadjustments may be appropriate for differenttypes of learning or teaching, and a student’s

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needs may change over time. Providingopportunities for individual disabled students tofeed back on adjustments and keepingadjustments under regular review will assist aneducation provider in ensuring they are makingthe most appropriate reasonable adjustments.

Exclusion

9.46 Where a disabled person is excluded from acourse, the education provider must ensure thatthe disabled person is not being discriminatedagainst. It is likely to be direct discrimination if theexclusion is on the grounds of disability (seeChapter 4). If the exclusion is not directlydiscriminatory, but is made for a reason related tothe disability, it will amount to disability-relateddiscrimination unless the education provider canshow that it is justified. The reason would alsohave to be one which could not be removed byany reasonable adjustment.

A student acquires a physical impairment duringhis further education course. The student isunable to attend some of his lessons, becausethe buildings are not accessible, and cannothand in his assignments on time because herequires longer to complete them due to hisdisability. The college removes him from hiscourse because of his poor attendance recordand for not handing in assignments. This is likelyto be unlawful.

9.47 When drawing up disciplinary procedureseducation providers should consider whether anyproposed criterion would adversely impact upon adisabled student. If so, it may be necessary for theeducation provider to make reasonableadjustments. For example, it is likely to be a

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reasonable adjustment to discount disability-related sickness absence when assessingattendance as part of disciplinary procedures.

9.48 Where the exclusion of a disabled student is beingconsidered for a reason relating to that person’sconduct, the education provider should considerwhether any reasonable adjustments need to bemade to the disciplinary or exclusion process. Inaddition, if the conduct in question is related tothe student’s disability, that may be relevant indetermining the sanction which it is appropriate toimpose.

A student with learning disabilities asks if he canbring a friend to a disciplinary hearing. It is likelyto be a reasonable adjustment for the educationprovider to allow this.

A student with autism shouts at his tutor anduses inappropriate language. The college wouldusually consider suspension as a sanction forsuch behaviour. However, the college takes intoaccount that the tutor had missed a tutorialsession and that this had distressed the student.As a result, the college does not suspend thestudent but decides to deal with the student in adifferent way. This is likely to be a reasonableadjustment to make.

After the termination of the relationshipbetween a disabled student and educationprovider

9.49 Where a disabled person’s relationship with aneducation provider has come to an end, the Act

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says that it will still be unlawful for his formereducation provider:

� to discriminate against him by subjecting himto a detriment; or

� to subject him to harassment

if the discrimination or harassment arises out ofthe relationship which has come to an end and isclosely connected to it.

A disabled person who uses British SignLanguage (BSL) to communicate is given anappointment to attend an appeal hearing relatingto his permanent exclusion. The educationprovider arranges for a BSL interpreter to bepresent at the hearing. This is likely to be areasonable adjustment for the educationprovider to make.

9.50 It is also unlawful to victimise a person (whetheror not he is disabled) after the relationship hascome to an end (see paragraphs 7.2 to 7.8).

A disabled person gives the name of hisuniversity supervisor as a referee for a new job.The supervisor gives him a poor reference,referring to his disability as being a hindrance.This poor reference is an untrue reflection of thestandard of work that the student producedwhilst at university. The poor reference wasgiven because he brought a claim of disabilitydiscrimination against the university.Consequently, this is likely to be unlawful.

s 55 ands 28UA

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9.51 An education provider’s duty to make reasonableadjustments may also apply in respect of a formerstudent who is a disabled person. This will be thecase where:

� the disabled person is placed at a substantialdisadvantage in comparison with other formerstudents:

− by a provision, practice or criterionapplied by the education provider to thedisabled person in relation to any matterarising out of his former relationship; or

− by a physical feature of premisesoccupied by the education provider, and

� the education provider either knows, or couldreasonably be expected to know, that theformer student in question has a disability andis likely to be affected in this way.

A disabled person is invited to an alumni eventat the university he attended. The invitation askswhether the attendee would require anyreasonable adjustments to be made.

9.52 The former students with whom the position ofthe disabled person should be compared must bepeople who are not disabled, but who are formerstudents of the same education provider. If it is notpossible to identify an actual comparator for thispurpose, then a hypothetical comparator may beused (see paragraph 4.15).

s 28UA(4)

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A further education college holds an appealhearing against an exclusion in an inaccessibleroom. As a result, a disabled student who uses awheelchair is not able to attend the hearing. Thecorrect comparator would be an ex-student whois asked to attend a hearing who is not awheelchair user and so can attend the hearing.

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Introduction

10.1 It is unlawful in relation to qualifications conferredby an education provider for an educationprovider to discriminate against a disabled personbecause of that person’s disability:

� in the arrangements which it makes for thepurpose of determining upon whom to confera qualification

� in the terms on which it is prepared to confera qualification

� by refusing or deliberately omitting to grantan application by him for such a qualification,or

� by withdrawing such a qualification from adisabled person or varying the terms on whichhe holds it.

10.2 This chapter examines these principles in moredetail. These duties cover disabled people who arenot students. The duties of education providers inrelation to the conferment of qualifications todisabled students are described in Chapter 9.

10.3 The ‘acts’ which can constitute unlawful conductin relation to qualifications are:

� Direct discrimination (see Chapter 4).

� Failure to make reasonable adjustments (seeChapter 5).

s 28R(3A)

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10 Discrimination in relation to qualifications(for non-students)

� Disability-related discrimination which cannotbe justified (see Chapter 6).

� Victimisation (see Chapter 7).

� Harassment (see Chapter 7).

10.4 This chapter deals with qualifications which areconferred by an education provider. There areoccasions when a qualification is studied for at aneducation provider but the qualification isconferred by a professional body. Professionalqualifications bodies have duties under Part 2 ofthe Act (see Code of Practice for TradeOrganisations and Qualifications Bodies). Inaddition, general qualification bodies (thoseconferring qualifications of a general nature, suchas GCSEs) will have duties in relation to generalqualifications from September 2007.

What is a qualification?

10.5 The Act says that a qualification is anyauthorisation, qualification, approval orcertification conferred by an education provider.

What is conferring?

10.6 The Act says that conferment of a qualificationincludes the renewal or extension of aqualification, and the authentication of aqualification awarded to him by another person. Inthis context ‘conferment’ has a narrow meaningand applies only in relation to people who are notstudents.

Competence standards and qualifications

10.7 It is obvious that an education provider willdifferentiate between individuals when conferring,renewing or extending qualifications. However, in

s 31A(6)

s 31A(9)

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doing so, it should avoid unlawfully discriminatingagainst disabled people.

10.8 Identifying genuine competence standards will becrucial to avoiding discrimination in the area ofconferment of qualifications. What the Act saysabout competence standards is explained inparagraphs 5.71 to 5.78 and 6.24 to 6.31.

10.9 An education provider has a duty to makereasonable adjustments to the way it confers,renews or extends qualifications (except in respectof competence standards). It owes this duty to adisabled person who holds a qualificationconferred by it and to a disabled applicant orpotential applicant for such a qualification.

10.10 It is very important to ascertain whether aparticular provision, criterion or practice of aneducation provider is a competence standard and,if so, whether the matter at issue concerns theapplication of that standard to the disabled personconcerned. Although there is no duty to makereasonable adjustments in respect of theapplication of a competence standard, such a dutyis likely to apply in respect of the process bywhich competence is assessed.

10.11 There is no breach of the duty on an educationprovider to make a reasonable adjustment for anindividual person if it does not know or could notreasonably have been expected to know, that theperson is disabled or that they are an applicant, ora potential applicant, for a qualification which theeducation provider confers.

10.12 Where information is available which should alertan education provider to the fact that an individualmay be disabled, or would be if it were reasonablyalert, the education provider cannot simply ignore

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it. It is thus a good idea for education providers tohave the necessary procedures in place to enableand encourage disabled people to let educationproviders know of their disability and ofsubstantial disadvantages that are likely to arise.The earlier an education provider is told about adisability and its effects, the more likely it is to beable to make effective adjustments.

10.13 Some education providers provide education,training or other services (such as facilities fortaking examinations or assessments) which leadto the attainment of a professional or tradequalification, even though they do not themselvesconfer the qualification. Although the educationprovider will still have duties under Part 4 inrespect of the education, training or other servicesthat they provide, the professional bodyconferring the qualification will have duties underPart 2 of the Act. To ensure full compliance withthe Act, it is advisable for education providers toinform qualifications bodies at an early stageabout an applicant’s disability and its relevantimplications – subject, of course, to obtaining theapplicant’s consent first.

Formerly held qualifications

10.14 The duty of an education provider not todiscriminate against a disabled person, or tosubject him to harassment, also extends to adisabled person who formerly held a qualificationif the discrimination or harassment arises out ofhis having formerly held the qualification and isclosely connected to it.

s 28UA

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Introduction

11.1 The legal responsibility for ensuring thatdiscrimination does not take place lies with theresponsible body for an education provider. TheAct specifies the ‘responsible’ body for each typeof education provider covered by the post-16sections of Part 4. The responsible body is thebody that is liable for fulfilling any legal dutiesunder the Act and against whom any claims ofdisability discrimination are brought.

England and Wales

11.2 In England and Wales the responsible bodies areas follows:

� the governing body of an institution in thefurther education sector (those conducted byfurther education corporations and thosedesignated for the purposes of Part 1 of theFurther and Higher Education Act 1992)

� the governing body of an institution within thehigher education sector (publicly-fundeduniversities, institutions conducted by highereducation corporations and those designatedfor the purposes of Part 2 of the Further andHigher Education Act 1992)

� the specified body of any other institutiondesignated by the Secretary of State (seeparagraph 11.4)

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11 Who is liable for discrimination?

� the local education authority in respect of anyfurther, higher or community education(including any recreational or trainingfacilities) secured by it

� the governing body of any maintained schoolin respect of any further education it providesto people other than its pupils (under s 80 ofthe School Standards and Framework Act1998)

� the local education authority in respect of anystatutory youth services secured by it.

Scotland

11.3 In Scotland the responsible bodies are as follows:

� the board of management of a college offurther education with a board ofmanagement within the meaning of section 36of the Further and Higher Education (Scotland)Act 1992

� the governing body of an institution within thehigher education sector within the meaning ofsection 56(2) of the Further and HigherEducation (Scotland) Act 1992

� the governing body of a central institutionwithin the meaning of section 135(1) of theEducation (Scotland) Act 1980

� the education authority of any institutionmaintained by an education authority in theexercise of the further education functionswithin the meaning of section 1(5)(b)(ii) of theEducation (Scotland) Act

� themanagers of a school in respect of grantsmade under section 73(c) or (d) of theEducation (Scotland) Act 1980

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� the specified body of any other institutiondesignated by the Secretary of State (seeparagraph 11.4)

� the education authority in respect of further,higher or community education (including anyrecreational or training facilities) secured by it.

Responsible bodies and institutionsdesignated by the Secretary of State

11.4 There is an additional list of responsible bodiesand institutions designated by the Secretary ofState. This list is available from The StationeryOffice (see Appendix C).

Responsibility for the acts of employees

11.5 The Act says that education providers areresponsible for the actions of their employees inthe course of their employment. However, in legalproceedings against an education provider basedon the actions of an employee, it is a defence thatthe education provider took ‘such steps as werereasonably practicable’ to prevent such actions.Training for staff and developing policies ondisability matters are likely to be relevant to sucha defence. It is not a defence for the educationprovider simply to show that the action took placewithout its knowledge or approval. Chapter 2gives guidance on the steps which it might beappropriate to take for this purpose.

A tutor routinely turns his back on the class whenhe is teaching although he knows that one of thestudents has a hearing impairment and needs tolip-read. The tutor has been trained in how towork with hearing impaired students, but no onemonitors his practice or asks students for

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feedback on his lectures. The student is beingsubstantially disadvantaged by the failure of thetutor to make a reasonable adjustment. Eventhough the governing body is not aware thatdiscrimination is occurring, it is likely that theresponsible body is acting unlawfully.

11.6 If the education provider is liable for the acts of anemployee in this way, the employee might also bepersonally liable for aiding the unlawful act. (Seeparagraphs 11.13 to 11.17 for details of aiding anunlawful act.)

Responsibility for the acts of agents

11.7 Education providers are also liable for anythingdone by their agents, if done with their authority.That authority may be express or implied and mayhave been given before or after the act inquestion.

The campus bars at a university are contractedout to a catering company. An employee of thecompany who works behind one of the barsrefuses to serve a student with a facialdisfigurement and is abusive to him because ofthe student’s disability. The responsible body islikely to have been acting unlawfully because ithas failed to ensure that the employees whowork behind the campus bars do notdiscriminate against disabled students and theyfailed to have sufficient provisions in theircontract with the catering company to addressthis. The person working behind the bar who wasabusive to the student and/or the cateringcompany who employ him may also be liable foraiding an unlawful act.

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Responsibility for the acts of third parties

11.8 In some cases, education providers may arrangefor a third party to provide education, training orother related services for students. In some casesthe third party will not be acting on behalf of theeducation provider and therefore not acting as anagent. However, the education provider will stillhave some responsibility to ensure disabledstudents are not discriminated against. The thirdparty may also have duties under the Act.

A college arranges for the students on a coursein archaeology to visit a museum for a day aspart of the course. The college passes oninformation about reasonable adjustments thatthe students may require to the museum.However, the museum ignores their request. Themuseum rather than the college would beresponsible for the failure to make reasonableadjustments. There is a potential claim underPart 3 of the Act against the museum.

As part of an Art History course at a university inGreat Britain, students spend a month in Italy ona programme run by an Italian university. It is theBritish university’s responsibility to check thatthe Italian university can provide access for adisabled student who uses a wheelchair;otherwise it may be liable for a claim ofdiscrimination. However, if the Italian universitydoes subsequently restrict access, despiteassurances to the contrary, no claim against theBritish university may arise. There is no potentialclaim under the Act against the Italian universityas it is not based in Great Britain.

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Part of the independent living course for studentswith learning difficulties at a college includesgoing to the shops on the bus. Although thistakes place outside the college, the college isresponsible under the Act for doing what it canto ensure disabled students are not discriminatedagainst. However, any treatment that a studentreceives from members of the public or otherson the bus or at the shops is not covered by Part4 of the Act because it is not made by, or onbehalf of, the institution. There may be potentialclaims against service providers under Part 3 ofthe Act if they discriminate against studentswhilst on such a trip.

11.9 Where an education provider is aware that adiscriminatory act has taken place, the educationprovider may be responsible under the Act forpreventing the discrimination continuing orrecurring.

Students on a language course spend twomonths studying at a partner institution inEurope. Despite the work that the Britishuniversity has done with the European universityto explain the needs of disabled students on theprogramme, disabled students continue tocomplain that they have been discriminatedagainst during their stay. The British university isresponsible for doing what it can to prevent thediscrimination continuing or recurring. If theBritish university is unable to achieve this then itmight decide to sever its links with thatinstitution, and find an alternative partner.

11.10 Some aspects of provision may be theresponsibility of bodies other than the education

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provider. In such cases the education providermay still have responsibilities in liaising with theother body in an attempt to avoid discrimination.In particular, entry to some courses may beregulated by a professional body, and manyexaminations are the responsibility of externalexamining bodies.

A student at a further education college isstudying for GCSEs. Modifications to the deliveryof the examination have to be agreed by theexamination board. The college hasresponsibility for finding out what modificationsthe student may need, for requesting these of theexamination board and for making anyadjustment needed to the administration of theexamination in the college. The college is notresponsible for deciding whether modificationsare acceptable nor for any changes to theexaminations themselves, which are covered byother provisions in Part 4 of the Act which comeinto force in September 2007.

More than one party responsible

11.11 In some cases, more than one body may haveresponsibilities towards the same people underthe Act. The fact that two bodies haveresponsibility does not diminish the individualresponsibility of either of them.

As part of a History course, students at oneinstitution spend a fortnight at another universityin Britain which has copies of original historicaldocuments. During that time, the studentsreceive teaching from staff at the secondinstitution and use other facilities there. Both the

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home institution and the host institution haveresponsibilities towards disabled students underthe Act. Whether either or both are liable for anydiscrimination will depend on the facts of thecase.

A college arranges a visit to an open day forprospective students at a university. One of thestudents is deaf and needs a sign languageinterpreter. Both the university and the collegemay have responsibilities under Part 4 to ensurethat the adjustment is made.

A disabled student studying at a FE collegewhich is a partner college to a university claimsthat a failure to make reasonable adjustmentshas resulted in him failing his course. Both thecollege and the university have duties to himunder Part 4 and may be liable for unlawfuldiscrimination.

11.12 In other cases, disabled people may be protectedby a number of different parts of the Act. In thesecases, the individual might seek redress fordiscrimination under whichever part of the Act ismost appropriate.

A disabled person is studying for anundergraduate degree in biomedical scienceswhich is accredited by the Institute of BiomedicalScience. Both the university and the Institutehave responsibilities towards the student. TheInstitute has responsibilities under Part 2 of theAct in respect of its role as a professional

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organisation and the university hasresponsibilities under Part 4 of the Act.

A group of students with learning difficulties goon a theatre trip as part of the end-of-termcelebrations at their college. The college, whichhas organised the trip, has responsibilitiestowards the students under Part 4 of the Act tothe extent that it is reasonable for them to makeappropriate adjustments. The theatre, as aservice provider, has responsibilities towards thestudents under Part 3 of the Act (goods andservices).

Aiding an unlawful act

11.13 A person who knowingly helps another to dosomething made unlawful by the Act will betreated as having done the same kind of unlawfulact. This means that, where an education provideris liable for an unlawful act of its employee oragent, that employee or agent will be liable foraiding the unlawful act of the employer.

11.14 Where an employee discriminates against orharasses a disabled student or applicant, it is theeducation provider who will be liable for thatunlawful act – unless it can show it took suchsteps as were reasonable to prevent the unlawfulact in question. But the employee who committedthe discrimination or harassment will be liable foraiding the unlawful act – and this will be the caseeven if the education provider is able to show thatit took reasonable steps to prevent the act.

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An education provider has policies relating toharassment and disability. It ensures that all staffare aware of the policies and of the fact thatharassment of disabled students is subject todisciplinary action. It also ensures that staffreceive training in applying the policies. Awoman with a learning disability is humiliated bya member of staff and disciplinary action is takenagainst the member of staff. In thesecircumstances the member of staff would beliable for aiding the unlawful act of the educationprovider (the harassment) even though theeducation provider would itself avoid liabilitybecause it had taken reasonably practicablesteps to prevent the unlawful act.

11.15 Any person, whether or not they are an employeeor agent, who knowingly aids someone else to dosomething that is unlawful under the Act is alsoacting unlawfully.

11.16 A person does not knowingly aid someone else todo something unlawful if:

� that other person makes a statement to himthat it would not be unlawful because of anyprovision of the Act; and

� he acts in reliance on that statement; and

� it is reasonable to rely on the statement.

11.17 A person who knowingly or recklessly makes sucha statement which is false and misleading in amaterial respect is guilty of a criminal offence.

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Introduction

12.1 In Chapter 5 it was explained that one of thesituations in which there is a duty to makereasonable adjustments arises where a physicalfeature of premises occupied by an educationprovider places a disabled person at a substantialdisadvantage compared with people who are notdisabled. In such circumstances the educationprovider must consider whether any reasonablesteps can be taken to overcome that disadvantage.Making adjustments to premises may be areasonable step for an education provider to haveto take. This chapter addresses the issues of howleases, building regulations and other statutoryrequirements affect the duty to make reasonableadjustments to premises. It considers theDisability Discrimination (Educational Institutions)(Alteration of Leasehold Premises) Regulations2005.

12.2 The issues dealt with in this chapter largelyconcern the need to obtain consent to the makingof reasonable adjustments where an educationprovider occupies premises under a lease or otherbinding obligation. However, education providersshould remember that even where consent is notgiven for altering a physical feature, they still havea duty to make reasonable adjustments – whichmay involve them considering taking other stepsto overcome the disadvantage which the featurecauses in respect of the disabled person.

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Building regulations and standards

12.3 Since 1985 building regulations in England andWales have required reasonable provisions to bemade for disabled people to gain access to and touse new buildings (and some extensions). Theseduties also apply to premises occupied by aneducation provider. Part M of the BuildingRegulations (originally called Access and facilitiesfor disabled people) was extended in 1992, againin 1999 and it was modified in 2004 (and is nowcalled Access to and use of buildings).

12.4 Guidance has also been issued to accompany theBuilding Regulations in the form of ApprovedDocument M, which sets out a number of‘objectives’ to be met, ‘design considerations’ andtechnical details of design solutions (called‘provisions’).

12.5 Similar provisions to those in England and Waleswere also introduced in Scotland in 1985 when‘facilities for disabled persons’ were added to theBuilding Standards (Scotland) Regulations. As inEngland and Wales, there have been variousversions with the latest system of buildingstandards – based on the Building Standards(Scotland) Regulations – coming into operation inMay 2005 as a result of the Building (Scotland) Act2003. Guidance on compliance with the functionalstandards set out in the regulations is given in theSBSA Technical Handbooks.

12.6 Further guidance is available in the form of BS8300 (see Appendix C). This British StandardInstitute guidance explains how the builtenvironment can be designed to anticipate, andovercome, restrictions that prevent disabledpeople making full use of premises and theirsurroundings. It provides guidance on good

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practice in the design of domestic and non-domestic buildings (including premises occupiedby schools, colleges and universities) and theirapproaches so that they are convenient to use bydisabled people.

12.7 Compliance with Part M of the BuildingRegulations or Scottish Building StandardsRegulations does not, in itself, mean that theduties upon education providers under the Acthave been completely discharged.

Leases, binding obligations and reasonableadjustments

12.8 Education providers should anticipate the need toobtain consent to make a proposed adjustmentand allow sufficient time to obtain this. Anapplication to a landlord may be necessary butthere may also be a need to obtain statutoryconsent from elsewhere for some alterations. Thismight include:

� planning permission

� building regulations approval

� listed building consent

� consent to alter buildings in a conservationarea

� consent to install a ramp onto a publichighway.

The Act does not override the need to obtain suchconsents. It may be reasonable, therefore, to makean interim adjustment that does not requireconsent.

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As part of its planned programme of accessimprovements, a university is installing aramped entrance to its library. The universitylibrary is a listed building. The university hasconsulted the local planning authority and wastold that consent was likely to be given butwould take some weeks. In the meantime, as atemporary measure, the university arranges fordisabled students unable to climb the steps touse an entrance at the rear of the building.Although this entrance is accessible, it is veryinconvenient, requiring students to negotiate aseries of pathways and wait in an unshelteredback yard. While this is not ideal, it is likely to bea reasonable adjustment for a limited periodwhile statutory consent is being obtained.

12.9 If a lease requires a tenant to obtain permissionfrom a landlord to alter a building, an educationprovider must apply in writing to its landlord forconsent to make an alteration. The writtenapplication should state that the alteration is tocomply with a duty to make reasonableadjustments under Part 4 of the DisabilityDiscrimination Act. The application should alsoinclude plans and specifications of the intendedworks.

What happens if a lease says that certainchanges to premises cannot be made?

12.10 Where an education provider occupies premisesunder a lease the terms of which prevent it fromaltering the premises, special provisions apply. Ifthe alteration is one the education providerproposes to make to comply with a duty ofreasonable adjustment, the Act overrides theterms of the lease and entitles the education

s 28WSI 2005/1070Reg 3(3) and3(4)

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provider to make the alteration with the consent ofits landlord.

Obtaining other consents

12.11 A superior landlord and immediate landlord maygive their consent but this does not override theeducation provider’s duty to obtain otherappropriate consents. These might be from astatutory body or due to the terms of anagreement or other legally binding obligation, forexample a restrictive covenant or a mortgage. It islikely that consent from a landlord or superiorlandlord would be given subject to suchobligations.

A local authority holds some of its classes in abuilding purchased with the assistance of a bankloan. The terms of the loan require the bank’sconsent for any changes to the building. Thelocal authority is proposing to alter the buildingto comply with its duty to make reasonableadjustments. It is reasonable for the localauthority to have to seek the bank’s consent butit is not reasonable for it to have to make thealteration if this consent is not given.

12.12 The Regulations detail the duties and theprocesses that apply in the relationship betweenthe landlord and any superior landlord. Thesuperior landlord has a duty to the educationprovider as if he or she was the immediatelandlord.

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When are landlords deemed to bewithholding consent?

12.13 If the application includes details of the alterationsincluding plans and appropriate specifications(see paragraph 12.4), and indicates that thealterations are to comply with a Part 4 duty, thelandlord must reply within 42 days of receivingthe application. If the landlord fails to reply withinthis time, the education provider can assume thatconsent has been withheld. In such a case, theeducation provider can apply to the court. Thisprocedure is explained in paragraphs 12.23 to12.27.

12.14 If the landlord needs to obtain the consent ofanother person, for example a superior landlord,the immediate landlord must advise the educationprovider of this and apply to any superior landlordwithin the 42-day period. If this is done, consentwill not be deemed to have been withheld. If alandlord fails to seek this consent, consent will bedeemed to have been withheld.

12.15 A superior landlord or other person whoseconsent is required also has 42 days fromreceiving the application (or from receiving plansand further details – see paragraph 12.12) toprovide consent.

12.16 A landlord will also be deemed to have withheldconsent if he or she has obtained consent from asuperior landlord but has failed to notify theeducation provider of this within 14 days.

12.17 A landlord or superior landlord will not bedeemed to have withheld consent if the educationprovider (or immediate landlord) fails to provideappropriate plans and specifications of theintended works with the application. In this

SI 2005/1070Reg 3(2)s 28W Sch 4

SI 2005/1070Reg 3(4)

SI 2005/1070Reg 3(5)

SI 2005/1070Reg 3(3)

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situation, the landlord may request them. Therequest must be made within 21 days of receipt ofthe initial application and the 42-day period beginsfrom the date the landlord receives theappropriate details.

On 1 January a local education authority writes abrief letter to the landlord of one of the buildingsit rents, requesting permission to refit a potteryroom with low benches and wider doorways andaisles. On 22 January the landlord telephonesasking the local education authority to send indetailed floor plans and estimated costs for theproposed changes. The local education authorityhas been preparing these and sends them to thelandlord on 9 February. The landlord then hasuntil 23 March to notify the authority of thedecision.

12.18 While a landlord is seeking consent from asuperior landlord or other person, he or she mustgive consent to the education provider conditionalupon the other person’s consent. If the educationprovider is not advised of this conditional consent,the immediate landlord will be deemed to havewithheld consent.

When is a landlord withholding consentreasonably?

12.19 In most cases whether withholding consent will bereasonable or not will depend upon specificcircumstances.

12.20 If the lease requires a landlord to give consent toan alteration of the kind in question and thelandlord does not do so, the landlord will bedeemed to have withheld consent unreasonably.

SI 2005/1070Reg 3(7)

SI 2005/1070Reg 4(2)

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12.21 The Regulations provide circumstances in which alandlord can reasonably withhold consent to themaking of an alteration. For example, where:

� there is a binding obligation requiring theconsent of any person to the alteration; and

� the landlord has taken steps to seek thatconsent; and

� consent has not been given, or is givensubject to a condition which makes itreasonable for the landlord to withholdconsent (see paragraph 12.19).

A college applies for consent to make a newdoorway at ground floor level in the side of abuilding because the main entrance is up a set ofsteps. The landlord is willing to consent to thealteration but must obtain the permission of anadjoining landowner who has a restrictivecovenant. This prevents the making of anyopenings in the side of the building. Theneighbouring landowner will give consent butonly if the landlord pays a substantial sum.Because of the size of the sum requested it islikely to be reasonable for the landlord to refuseconsent.

12.22 It is also reasonable to withhold consent wherethe landlord or superior landlord does not knowand could not reasonably be expected to knowthat the alteration is being proposed to complywith a duty to make reasonable adjustments.

12.23 If a landlord is withholding consent reasonably itmay be necessary to consider an alternative (evenif less effective) adjustment.

SI 2005/1070Reg 5(2)

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Power of landlords to impose conditions onconsent

12.24 Either the landlord or the superior landlord cangive consent subject to the conditions prescribedin the Regulations. They may include anobligation:

� to obtain appropriate other consents includingplanning permissions

� to carry out the works in accordance with theplans and specifications submitted to andapproved by the landlord or the superiorlandlord (such approval may not beunreasonably withheld)

� to allow the landlord or the superior landlordto inspect the work before and/or after it hasbeen completed

� to repay to the landlord and the superiorlandlord any costs reasonably incurred inconnection with giving the consent. (Thesecosts might include building surveyors’,architects’ or legal fees incurred to providedocumentary evidence for the consent.)

12.25 The landlord or superior landlord may alsoimpose other conditions so long as these arereasonable.

What happens if the landlord refusesconsent or attaches unreasonableconditions?

12.26 If the education provider has written to thelandlord for consent to make an alteration and thelandlord:

� has refused consent unreasonably, or

SI 2005/1070Reg 6

SI 2005/1070Reg 7(5)

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� has failed to respond (which is deemed as arefusal), or

� has attached conditions to his consent

the education provider or a disabled person whohas an interest in the proposed alteration maymake a claim against a landlord in a county court(in England and Wales) or in the sheriff court (inScotland).

12.27 The court will decide whether the landlord’srefusal or any conditions imposed areunreasonable. It may make a statement as towhether the landlord has been unreasonableand/or authorise the education provider to makethe alteration under a court order. The court ordermay impose conditions on the education provider.

Bringing landlords into proceedingsbrought by disabled people

12.28 In any legal proceedings under Part 4 of the Actthat involve a failure to make an alteration topremises, the disabled person concerned or theeducation provider may make the landlord a partyto the proceedings. This would mean that theclaim could be made jointly against both theeducation provider and the landlord.

A college occupies premises under a lease, aterm of which says that a staircase cannot bealtered. The college wishes to alter the staircaseto fit a chairlift for wheelchair users. The leaseprevents the making of alterations and thelandlord relies on this to refuse consent. Thecollege takes no further action. A disabledstudent is unable to gain access to his classes onthe first floor. The student may make a claimagainst both the college and the landlord.

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12.29 The education provider should, therefore,consider whether to make an application for adeclaration that a landlord has been unreasonableat the time the application for consent has beenrefused. Failure to do so may mean that theeducation provider has no defence to a claim by adisabled person.

In the example at 12.21, the college claims thatits failure to make an adjustment was becauseconsent was withheld. The court finds thatdiscrimination has taken place. The landlord’sconsent is found to have been withheldunreasonably. The fact that the college did notmake a claim against the landlord may preventthe college from having a defence because,when considering whether the college has takenreasonable steps to address the substantialdisadvantage caused by the staircase, the courtmay consider that a reasonable step for thecollege to have to take would have been a claimagainst the landlord.

12.30 The court will grant a request to make a landlord aparty to proceedings if the request is made beforethe hearing of the claim begins. It may refuse therequest if it is made after the hearing begins. Therequest cannot be granted if it is made after thecourt has determined the claim.

12.31 Where the landlord has been made a party to theproceedings, the court may determine whetherthe landlord has unreasonably refused consent tothe alteration or has consented subject tounreasonable conditions. In either case the courtcan:

� state whether the landlord was reasonable orunreasonable

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� authorise the responsible body to make aspecified alteration

� order the landlord to pay compensation to thedisabled person.

12.32 The court may require the education provider tocomply with any conditions specified in the order.If the court orders the landlord to paycompensation, it cannot also order the educationprovider to do so.

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Introduction

13.1 This chapter explains what happens if someonemakes a complaint against an education provider,and what routes of redress exist. It also explainswhat action may be taken to put right anydiscrimination that is found to have taken place.

Resolving disputes

13.2 It is good practice to attempt to resolve disputeswithout resorting to legal proceedings.Complainants may want to raise complaintsdirectly with education providers. Many educationproviders will have complaints procedures whichaid the speedy resolution of disputes.Complainants may raise an issue with educationproviders either before or after legal proceedingshave started.

13.3 Education providers must make reasonableadjustments to any internal complaintsprocedures to prevent disabled people from beingplaced at a substantial disadvantage incomparison with people who are not disabled.Failure to do so will itself amount to a breach ofthe Act.

13.4 So, for example, it is likely to be a reasonableadjustment for an education provider to allow adisabled person who has communicationdifficulties some assistance to make a writtenstatement of a complaint he wishes to make (such

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13 What happens if there is a dispute underthe Act?

as by providing him with assistance via a neutralparty). Depending on the circumstances, it may bereasonable to allow a disabled person withlearning disabilities to be accompanied to ameeting by a family member or friend, or to sendwritten communications to a blind or visuallyimpaired person in a format which is accessible tohim.

13.5 Although, as stated above, it is good practice totry to resolve disputes internally whereverpossible, there are occasions where this will notbe practical or appropriate.

Conciliation

13.6 The Disability Rights Commission is empoweredby the Act to set up an independent conciliationservice for disputes arising under Part 4 of the Actto promote the settlement of disputes withoutrecourse to the courts and has done so.Conciliation is made available locally around thecountry, and disputes may be referred toconciliation by the Disability Rights Commission ifboth the complainant and the education provideragree. The conciliation service will be operated bythe DRC until the Equality Act comes into force,when it will then be operated by the Commissionfor Equality and Human Rights (CEHR)

13.7 Agreeing to participate in the conciliation processdoes not prevent a complainant from pursuing acase through the courts. The time limit forbringing an action in court is extended by twomonths when a person is referred to theconciliation service by the Commission. Noinformation disclosed to a conciliator during theconciliation process may be used in anysubsequent court case without the permission ofthe person who disclosed it.

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Making a claim

13.8 The Act says that a person who believes that aneducation provider has discriminated against himor has subjected him to harassment, may bringcivil proceedings. Those proceedings take place ina county court (in England and Wales) or thesheriff court (in Scotland). Similar proceedingsmay also be brought against a person who hasaided someone else to commit an unlawful act. Aclaim must normally be lodged (and, in Scotland,served on the education provider) within sixmonths of the alleged discrimination. Where therehas been a continuing process of discriminationtaking place over a period of time, the six monthsbegins at the date of the last discriminatory act.Courts have the discretion to consider a claimbrought outside the six-month period if theyconsider that it is just and equitable to do so.

13.9 If a complaint cannot be resolved and is heard bya court, the court may:

� declare the rights of the disabled person (inEngland and Wales this is the claimant and inScotland this is the pursuer) and the otherperson (the defendant in England and Walesand the defender in Scotland) in relation to theclaim (ie make a declaration of discrimination)

� order the defendant/defender to pay theclaimant/pursuer compensation, includingcompensation for injury to feelings; and

� impose an injunction (in England and Wales)or a specific implement, or interdict (inScotland) requiring an education provider totake positive action or to prevent theeducation provider from repeating anydiscriminatory act in the future.

s 28V

s 28V(5)

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Sources of information about how to make a claimto the courts are listed in Appendix C.

Disability Rights Commission (DRC)General functions

13.10 The DRC has statutory powers to work towardsthe elimination of discrimination and to promotethe equalisation of opportunity for disabledpeople. In particular, the DRC:

� keeps the Act under review

� supplies assistance and support to disabledlitigants under the Act

� provides information and advice to anyonewith rights or obligations under the Act

� carries out formal investigations

� prepares new or revised Codes of Practice;and

� arranges independent conciliation of disputesunder the legislation.

Enforcement of certain provisions under Part 4

13.11 In addition, the DRC has a direct involvement inthe enforcement of the provisions of Part 4relating to:

� instructing or pressurising other people to actunlawfully (see paragraph 3.33); and

� discriminatory advertisements (seeparagraphs 8.15 to 8.18).

13.12 Only the DRC (and in due course the Commissionfor Equality and Human Rights (CEHR)) may bringproceedings in respect of these matters. Where it

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does so, the DRC (or its successor, the CEHR) mayseek:

� a declaration from a county or sheriff courtthat a contravention has occurred; and

� an injunction from a county court (Englandand Wales ) or, an interdict from a sheriff court(Scotland) restraining further contraventions.

Where to go for information and advice

13.13 Students or others wanting to make complaintsunder the Act against an education provider mayget further information and advice about theprocess from the Disability Rights Commission.Further sources of information and advice areprovided in Appendix C.

13.14 The Disability Rights Commission also providesadvice and information to education providersabout their legal responsibilities under the Act.

Website: www.drc-gb.orgTelephone: 08457 622 633Textphone: 08457 622 644Fax: 08457 778 878

Post: DRC HelplineFREEPOSTMID 02164Stratford upon AvonCV37 9BR

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This appendix is only relevant to:

� Schools when providing further education foradults; and

� Local education authorities when providingrecreational or training facilities (in Englandand Wales); and

� Education authorities when providingrecreational or training facilities (in Scotland).

What does the Act say about discriminationin relation to post-16 education not affectedby the changes from September 2006?

Introduction

1 There are a few education providers who arecovered by the post-16 provisions of Part 4 of theAct who are unaffected by the changes fromSeptember 2006 which are described in the bulk ofthis Code. These education providers have thesame duties as were set out in the previous Codeand came into effect in September 2002 (with laterprovisions coming into effect in September 2003 –in relation to auxiliary aids and services – andSeptember 2005 – in relation to physical features).

2 These education providers are:

� Schools when providing further education foradults; and

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Appendix A:Duties for other providers ofpost-16 education

� Local education authorities when providingrecreational or training facilities (in Englandand Wales); and

� Education authorities when providingrecreational or training facilities (in Scotland).

Any references in this appendix to ‘educationprovider’ refer to those listed above and anyreferences in this appendix to ‘school’ refer to aschool providing further education for adults.

Effect of the Act

3 The Act makes it unlawful for an educationprovider to discriminate against a disabled personin relation to the provision of education andrelated services.

4 The Act does not prevent education providersfrom treating disabled people more favourablythan those who are not disabled, although theremay be other legal obligations that affect this.

Forms of discrimination

5 The three forms of discrimination which areunlawful are:

� Failure to comply with a duty to makereasonable adjustments (explained inparagraphs 14 to 43)

� ‘Disability-related discrimination’ (explained inparagraphs 44 to 64); and

� Victimisation of a person (whether or not he isdisabled) (explained in paragraphs 65 to 70).

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Aspects of education and related services inrespect of which discrimination is unlawful

6 In relation to enrolment, the Act says that it isunlawful for the governing body of a school todiscriminate against a disabled person:

� in the arrangements made for determiningwho should be enrolled on the course

� in the terms on which it offers to enrol him onthe course; or

� by refusing or deliberately omitting to acceptan application for his enrolment on thecourse.

7 The Act also says that it is unlawful for a localeducation authority or education authority todiscriminate against a disabled person in theterms on which they provide, or offer to provide,recreational or training facilities.

8 In relation to ‘provision for students’, the Act saysthat it is unlawful for an education provider todiscriminate against a disabled student:

� in the services it provides, or offers to provide.

Enrolment

9 The Act does not prevent courses beingadvertised as open only to disabled applicants, orto an applicant being preferred for the coursebecause of his disability, although there may beother legal obligations that affect this. Providerswill also need to bear in mind their obligationsunder the Disability Equality Duty, including theneed to have due regard to the need to take stepsto take account of disabled people’s disabilities,even where this means treating them morefavourably than non-disabled people.

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What are ‘arrangements’ for determiningwho should be enrolled on a course?

10 The meaning of ‘arrangements’ – that is,arrangements for determining who should beenrolled on a course – is wide. Such arrangementsare not confined to those which an educationprovider makes in deciding who should be offereda place on a specific course, but also includearrangements for deciding who should be offeredplaces more generally and how courses aredesigned. So participation in any pre-courseactivities such as taster sessions could be ‘anarrangement’ if its completion is a necessary stepalong the road to obtaining a place on the course.

Services

11 ‘Services’ are any services that an educationprovider provides, or offers to provide, wholly ormainly for persons enrolled on the course.

12 Services will vary from one provider to another,but might include, for example:

� teaching, including classes, lectures,seminars, practical sessions

� curriculum design

� examinations and assessments

� field trips and outdoor education

� arranging study abroad or work placements

� outings and trips

� informal/optional study skills sessions

� short courses

� day or evening adult education courses

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� training courses

� distance learning

� independent learning opportunities such ase-learning

� learning facilities such as classrooms, lecturetheatres, laboratories, studios, darkrooms, etc

� learning equipment and materials such aslaboratory equipment, computer facilities,class handouts, etc

� libraries, learning centres and informationcentres and their resources

� information and communication technologyand resources

� placement-finding services

� job references

� graduation and certificate ceremonies

� leisure, recreation, entertainment and sportsfacilities

� the physical environment

� catering facilities

� childcare facilities

� campus or college shops

� car parking.

13 However, educational providers often makeprovision that is wholly or mainly for other groupsof people not enrolled on the course. These arenot covered by Part 4 of the Act. Examples mightinclude:

� commercial conference facilities (these wouldbe covered by Part 3 of the Act)

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� commercial research or consultancy services(these might be covered by Part 3 of the Act)

� services and facilities for staff (these would becovered by Part 2 of the Act).

Reasonable adjustmentsWhat is the duty to make reasonableadjustments?

14 The duty to make reasonable adjustments is acornerstone of the Act and requires educationproviders to take positive steps to ensure thatdisabled people can access education and relatedservices. This goes beyond simply avoidingtreating disabled people less favourably and inmany cases it may also mean taking additionalsteps to which non-disabled people are notentitled.

15 Education providers have a duty to take suchsteps as it is reasonable for them to have to takein all the circumstances of the case in thesituations described below. The duty to makereasonable adjustments arises where disabledpersons are placed at a substantial disadvantagein comparison with people who are not disabled.An education provider has to take such steps as itis reasonable for it to have to take in all thecircumstances to prevent that disadvantage – inother words the education provider has to make a‘reasonable adjustment’.

A man who is disabled because he has dyslexiaapplies for a business skills course whichinvolves writing letters. The education providergives all applicants a test of their letter-writingability. The man can generally write letters verywell but finds it difficult to do so in stressful

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situations and within short deadlines. He is givenlonger to take the test. This adjustment is likelyto be a reasonable one for the educationprovider to make.

16 The duty applies in the following circumstances

� in relation to the arrangements an educationprovider makes for determining admissions

� in relation to student services provided for, oroffered to, students by an education provider.

17 The duty includes a requirement to provideauxiliary aids and services and to alter or removephysical features.

What is a ‘physical feature’?

18 The Act says that the following are to be treatedas a physical feature:

� any feature arising from the design orconstruction of a building on the premisesoccupied by the education provider

� any feature on the premises of any approachto, exit from, or access to such a building

� any fixtures, fittings, furnishings, furniture,equipment or materials in or on the premises;and

� any other physical element or quality of anyland comprised in the premises occupied bythe education provider.

All these features are covered, whether temporaryor permanent. Considerations which need to betaken into account when making adjustments to

s 31A(10)

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premises are explained in Chapter 12 of the Codeand apply to all education providers.

The design of a particular classroom makes itdifficult for someone with a hearing impairmentto hear, because it is a large room and has hardflooring which means that sound echoes. That isa substantial disadvantage caused by thephysical features of the education provider’spremises.

Clear glass doors at the end of a corridor in acollege present a hazard for a visually impairedstudent. This is a substantial disadvantagecaused by the physical features of the college.

19 Physical features will include steps, stairways,kerbs, exterior surfaces and paving, parking areas,building entrances and exits (including emergencyescape routes), internal and external doors, gates,toilet and washing facilities, lighting andventilation, lifts and escalators, floor coverings,signs, furniture, and temporary or movable items.This is not an exhaustive list.

20 It does not matter if a disabled person cannotpoint to an actual non-disabled person comparedwith whom he is at a substantial disadvantage.The issue is whether disabled persons are placedat a substantial disadvantage.

What disadvantages give rise to the duty?

21 The Act says that only substantial disadvantagesgive rise to the duty. Substantial disadvantagesare those which are not minor or trivial. Whetheror not such a disadvantage exists in a particularcase is a question of fact.

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A school providing further education for adultshas several sites and students are required tomove between sites to attend different classes.This is likely to place students with mobilitydifficulties at a substantial disadvantage as theymay find it difficult to move between sites andarrive late for classes.

To whom is the duty to make reasonableadjustments owed?

22 An education provider’s duty to make reasonableadjustments is an anticipatory duty owed todisabled people and students at large. It does notonly arise when an individual disabled studentpresents himself to the education provider.Disabled people are a diverse group with differentrequirements that education providers need toconsider strategically.

All teaching staff at a school providing furthereducation for adults produce all their handouts inelectronic form thus ensuring that they can easilybe converted into large print or put into otheralternative formats. The staff are anticipatingreasonable adjustments that might need to bemade.

A small education provider that is unable toemploy a large number of specialist staff ensuresit has close links with other organisations so thatit is able to call on specialist support workers (forexample, for learners who are dyslexic) when theneed arises. It therefore anticipates reasonableadjustments that it might need to make if it hasapplications from dyslexic students.

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23 The issue of anticipatory reasonable adjustmentsis particularly relevant in respect of buildings,whether these are owned, rented or leased.

An education authority ensures that its BuildingWorks Department is thoroughly briefed on allaspects of physical access. Each time buildingworks are undertaken an assessment is made ofhow the building can be made more accessible.For example, when an area is repainted thedepartment ensures it is using colour contrasts,which will help students with a visualimpairment. It also carries out an acoustic auditto ensure it is responding appropriately to deafstudents. The education authority is anticipatingreasonable adjustments that might need to bemade.

At what point does the duty to make reasonableadjustments arise?

24 Education providers should not wait until adisabled person approaches them before theygive consideration to their duty to makereasonable adjustments. Education providersshould be planning continually for the reasonableadjustments they need to make, whether or notthey have disabled students. They shouldanticipate the requirements of disabled peopleand the adjustments that may have to be made forthem. In many cases, it is appropriate to askstudents to identify whether they have anyparticular requirements and, if so, whatadjustments may need to be made. Failure toanticipate the need for an adjustment may resultin it being too late to comply with the duty tomake the adjustment when a disabled personrequires it and therefore fail to discharge the duty.

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An HR department at a local education authorityarranges for all its youth service staff to receivedeaf awareness training, even though there arecurrently no users of the youth service whowould be classified as deaf.

Must education providers anticipate everybarrier?

25 Education providers cannot be expected toanticipate the needs of every prospective student,but what they are required to think about and takereasonable steps to overcome are features thatmay impede persons with particular kinds ofdisability – for example, people with visualimpairments or mobility impairments.

26 When considering the provision of a reasonableadjustment, an education provider should beflexible with its approach. However, there may besituations where it is not reasonable for aneducation provider to anticipate a particularrequirement. Education providers are expected toanticipate the reasonably foreseeable needs ofdisabled people but may not be able to anticipatethe specific adjustments required by someindividuals.

27 Once an education provider has become aware ofthe requirements of a particular disabled studentor applicant, it might then be reasonable for theeducation provider to take a particular step tomeet these requirements. This is especially sowhere a disabled person has pointed out thedifficulty that he or she faces in accessingservices, or has suggested a reasonable solutionto that difficulty.

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How can education providers identify possibleadjustments to physical features?

28 Education providers are more likely to be able tocomply with their duty to make adjustments inrelation to physical features if they arrange for anaccess audit of their premises to be conductedand draft an access plan or strategy. Acting on theresults of such an audit may reduce the likelihoodof successful legal claims against the educationprovider.

29 In carrying out an audit, it is recommended thateducation providers seek the views of people withdifferent disabilities, or those representing them,to assist in identifying barriers and developingeffective solutions. Education providers can alsodraw on the extensive experience of local andnational disability groups or organisations ofdisabled people.

How long does the duty continue?

30 The duty to make reasonable adjustments is acontinuing duty. Education providers should keepthe duty under regular review in light of theirexperience with disabled people applying forcourses and using student services. In this respectit is an evolving duty, and not something thatneeds simply to be considered once and thenforgotten. What was originally a reasonable stepto take might no longer be sufficient and theprovision of further or different adjustments mightthen have to be considered.

31 Equally, a step that might previously have been anunreasonable one for an education provider tohave to take could subsequently become areasonable step in light of changed circumstances.For example, technological developments may

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provide new or better solutions to the difficultiesfaced by disabled people.

Which disabled people does the duty protect?

32 The duty to make reasonable adjustments appliesin admissions and in all student services.

What if the education provider does not knowthat the person is disabled, or is an actual orpotential student?

33 Although education providers have a duty to thinkahead and to anticipate what reasonableadjustments may be needed for disabled people ingeneral (see paragraphs 23 to 28), an educationprovider will only be found to be in breach of thatduty where an individual disabled person brings aclaim, if it knows, or could reasonably be expectedto know, that the person has a disability and islikely to be placed at a substantial disadvantage.The education provider must, however, do all itcan reasonably be expected to do to find outwhether this is the case. The action that it isappropriate to take to find out about a person’sdisability may differ between different types ofprovision. The Government has issued guidanceon the reasonable action an education providershould take to find out about people’s disabilities(see Appendix C). If an education provider canshow that it did not know, and could notreasonably have been expected to know, that theperson was disabled, it can defend the failure tomake reasonable adjustments for that individualperson.

A school trains its staff who provide furthereducation for adults to be aware of issuesrelating to disability, and specifically asks them

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to give students an opportunity to notify theirtutor in confidence of their disability and whetherthey are experiencing any difficulties relating totheir disability that may cause them to be at asubstantial disadvantage. This gives the schoolthe opportunity to find out if a student requiresany reasonable adjustments and the schoolshould also give alternative opportunities for thestudent to disclose this information.

34 The principle stated in paragraph 33 appliesequally to a disabled person who is an actual orpotential applicant for a course.

35 If an education provider’s agent or employee (suchas an occupational health adviser or anadmissions officer) knows, in that capacity, of aperson’s disability, the education provider will notusually be able to claim that it does not know ofthe disability, and that it therefore has noobligation to make a reasonable adjustment. Thesame applies in respect of actual or potentialapplicants. Education providers therefore need toensure that where information about disabledpeople may come through different channels,there is a means – suitably confidential – forbringing the information together, to make iteasier for the education provider to fulfil its dutiesunder the Act. All staff should be aware of theaction they should take if they become aware thata student or applicant is disabled.

An access officer is employed by a localeducation authority to provide it with informationabout health and safety arrangements within theyouth service and the views of the users aboutthe arrangements. The access officer becomes

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aware of a person’s disability, which the youthworker does not know about. The local educationauthority’s arrangements put the user at asubstantial disadvantage because of the effectsof her disability and she claims that a reasonableadjustment should have been made. It would notbe a defence for the local education authority toclaim that it did not know of her disability. This isbecause the access officer is employed by thelocal education authority and has knowledge ofthe user’s disability. The access officer’sknowledge means that the local educationauthority’s duty under the Act applies.

36 Information will not be imputed to the educationprovider if it is gained by a person providingservices to students independently of theeducation provider. This is the case even if theeducation provider has arranged for thoseservices to be provided.

An education provider arranges for students tobe allowed to use a local careers service inaddition to its own in-house service. Theagreement states that the careers service is notacting on behalf of the education provider inallowing students to use the service. Anyinformation about a student’s disability obtainedby a careers adviser during the student’s use ofthe service would not be passed on to theeducation provider and so would not trigger theeducation provider’s duty to make reasonableadjustments.

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Confidentiality and reasonable adjustments

37 A disabled person has a right to request that theexistence or nature of his or her disability betreated as confidential. In determining whether itis reasonable to make an adjustment, theresponsible body must have regard to the extentthat making the adjustment is consistent with adisabled person’s request for confidentiality.

38 In some instances this might mean thatreasonable adjustments have to be provided in analternative way in order to ensure confidentiality.

A student with a visual impairment can only readclearly if he has text enlarged into 16-point type.He has requested strict confidentiality. Normallyhis tutors would give a visually impaired studentlarge-print handouts at the beginning of eachclass. However, because he has requestedconfidentiality, they agree to give him hishandouts in advance so that he can look at thembefore the lesson but does not have to be seenreading them during the class.

39 In some cases a confidentiality request mightmean that a less satisfactory reasonableadjustment is provided or that no reasonableadjustment can be provided.

A student with AIDS is on a chemical engineeringcourse. He does not want other students to knowof his condition. His condition means that hesometimes needs to have time off. His tutorshave offered to arrange extra time in thelaboratory for him after hours to make up for thetime he misses. However, he has refused thisbecause he thinks it would draw attention to him

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and his condition. Instead they offer to providehim with extra lecture notes. Although thisadjustment may be less effective, it is likely to belawful.

40 Paragraphs 5.62 to 5.67 provide guidance on whatadjustments an education provider might have tomake are and this guidance is relevant to alleducation providers.

41 Paragraphs 5.35 to 5.61 provide guidance on whenit is reasonable for an education provider to haveto make adjustments including factors to be takeninto account and this guidance is relevant to alleducation providers.

Can failure to make a reasonable adjustment bejustified?

42 The Act says that a failure to make reasonableadjustments will be justified if, but only if, thereason for the failure is both material to thecircumstances of the particular case andsubstantial. This is an objective test. ‘Material’means there must be a reasonably strongconnection between the reason given for thetreatment and the circumstances of the particularcase. ‘Substantial’ means, in the context ofjustification, that the reason must carry realweight and be of substance. In practice it will bevirtually impossible for an adjustment to be areasonable one and for there then to be a materialand substantial reason for not making it.

What happens if the duty to make reasonableadjustments is not complied with?

43 Where an education provider does not complywith the duty to make reasonable adjustments and

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this failure cannot be justified it will becommitting an act of unlawful discrimination. Adisabled person will be able to make a claimbased on this (see Chapter 13 for more detailsabout claims).

Disability-related discriminationWhat is disability-related discrimination?

44 The Act says that an education provider’streatment of a disabled person amounts todiscrimination if:

� it is for a reason related to his disability

� the treatment is less favourable than the wayin which the education provider treats (orwould treat) others to whom that reason doesnot (or would not) apply; and

� the education provider cannot show that thetreatment is justified (after taking into accountthe reasonable adjustments duty).

45 Although the Act itself does not use the term‘disability-related discrimination’, this expressionis used in the Code when referring to treatment ofa disabled person which is unlawful because eachof the conditions listed in paragraph 44 issatisfied.

Identifying comparators for disability-relateddiscrimination

46 In determining whether disability-relateddiscrimination has occurred, the educationprovider’s treatment of the disabled person mustbe compared with that of a person to whom thedisability-related reason does not apply. Thecomparator may be non-disabled or disabled – butthe key point is that the disability-related reason

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for the less favourable treatment must not applyto him. The comparator can be a real person or ahypothetical person.

A student with a mental health condition carrieswith her medication related to her condition. Theschool she attends for further education,however, has a strict policy that does not allowany drugs on the premises. The correctcomparator would be a person attending thesame institution who does not carry drugs withthem.

A disabled person who uses crutches is notallowed to participate in a site visit that formspart of a construction course, because the tutorjudges that the student may have difficultiesmoving around the site. The correct comparatorwould be a person who does have any mobilitydifficulties and so can move around the sitewithout difficulty.

A student who is deaf and uses an assistancedog is not allowed into the library at his schoolbecause the library does not allow animals onthe premises. The correct comparator is a personwho does not need to bring a dog with them tothe library and so can go onto the premises.

Reason for the treatment

47 In order to identify an appropriate comparator it isnecessary to first identify the treatment and thereason for the treatment.

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48 There must be a connection between the reasonfor the less favourable treatment and the person’sdisability for the treatment to be discriminatory.

A person with sickle cell anaemia using theyouth service has been asked to leave becausehe has been bullying other users. The reason forasking him to leave is his disruptive behaviourand is not related to his disability, and so is likelyto be lawful.

49 It is then necessary to compare the treatment withthe way someone to whom the reason does notapply has been treated. A disabled person doesnot have to show that others were actually treatedmore favourably than he or she was. He or sheneeds only to show that others would have beentreated better.

50 The comparison may be between the way onedisabled person is treated and the way peoplewith other disabilities are treated. There does notneed to be an actual comparator, the comparisoncan be with a hypothetical person if an actualcomparator does not exist.

A community education tutor tells a woman whois blind that she cannot join the singing groupbecause she cannot read the sheet music. A manwith chronic asthma is allowed to join the group.Although the tutor has accepted a disabledperson onto the course, the blind woman hasbeen treated less favourably for a reason relatingto her disability and this is likely to be unlawful,unless it can be justified.

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Must an education provider know that a person isdisabled?

51 For an education provider to discriminate againstsomeone by treating him or her less favourablyfor a reason relating to his disability, it needs toknow about the disability. If the educationprovider did not know and could not reasonablyhave known that a person was disabled, thenthere will have been no discrimination. In order toclaim lack of knowledge about a disability, theresponsible body must have taken steps to findout about the person’s disability. The action that itis appropriate to take to find out about a person’sdisability may differ between different types ofprovision. The Government has issued guidanceon the reasonable action education providersshould take to find out about people’s disabilities(see Appendix C).

A student has a mental health problem and,because of her medication, finds it difficult to getto her first morning class. After several weeksduring which she has missed all her morningclasses, and without approaching the student tofind out why she has not turned up, the schooldecides to remove her from the course. Althoughthe school did not know that she was disabledthe school could reasonably have been expectedto find out that the student was disabled andtherefore cannot rely on the fact it did not knowand is likely to be acting unlawfully.

In the same situation the tutor approaches thestudent and asks her in private if there is anyreason preventing her from coming in to her firstclass. The student denies that there is anyparticular reason for her non-attendance. The

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school decides to remove her from the course.This is likely to be lawful as the school could nothave been expected to know that the student wasdisabled.

52 An education provider should be proactive inencouraging people to disclose a disability. Thismight involve:

� asking applicants to courses to declare theirdisabilities on application and enrolmentforms

� publicising the provision that is made fordisabled people, or providing opportunitiesfor students to tell tutors/teachers or otherstaff in confidence

� asking students when they apply forexaminations whether they need any specificarrangements because of a disability

� explaining to students the benefit ofdisclosure and how this information will bekept confidential

� ensuring that the atmosphere and culture atthe institution or service is open andwelcoming so that disabled people feel safe todisclose a disability.

53 If the education provider might reasonably havebeen expected to know or find out about aperson’s disability, then it cannot rely on the lackof knowledge defence.

A man with a medical condition that causesfatigue and subsequent loss of speech controlapplies to a school for a further education

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course. The application form does not askwhether he has a disability nor whether hewould have any particular needs when attendinginterview. He attends an interview, during whichhe is very listless and his speech is very slurredbecause he is tired from the journey, and theselectors turn him down because of this. Hementioned at the interview that he felt tired butthe panel ignored this. The admissions officemade no attempts to find out whether theapplicant had a disability. Because thisinformation might reasonably have been known,the selectors’ treatment of the applicant is likelyto be unlawful.

54 If a disabled person has told someone within theinstitution or service about his or her disability,then the education provider may not be able toclaim that it did not know.

A student declares that he is disabled on hisapplication form for his part-time furthereducation course and notes that due to hishospital appointments, he may not be able toattend all elements of the course. Although theadmissions office knows that the student mighthave a disability under the Act, it does not passthis information on to the tutors who teach thecourse. The school cannot claim that it did notknow about the disability and so is likely to beacting unlawfully if it takes any disciplinaryaction resulting from the student’s non-attendance for the course.

55 In some cases, the disabled person may have toldsomeone in confidence about their disability.Information will not be imputed to the education

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provider if it is gained by a person providingservices independently of the education provider.However, if an education provider’s agent knows,in that capacity, of a disabled person’s disability,the education provider will not usually be able toclaim that it does not know of the disability. Staffshould be aware of how to deal with confidentialinformation about a student’s disability andshould explore ways of making reasonableadjustments that would not breach confidentiality.

Justification of disability-related less favourabletreatment

56 An education provider’s conduct towards adisabled person does not amount to unlawfuldisability-related less favourable treatment if it canbe justified. The following paragraphs explain thelimited circumstances in which this may happen.

57 Disability-related less favourable treatment maybe justified if one of the following conditions isfulfilled:

� it is necessary to maintain academicstandards, or

� the reason for the treatment is both materialto the circumstances of the particular case andsubstantial.

The maintenance of academic standards

58 The Act does not require an education provider todo anything that would undermine the academicstandards of a particular course. An educationprovider may be able to justify disability-relatedless favourable treatment if it is necessary tomaintain these standards.

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59 The academic standards reason should not beused spuriously. Where elements are not centralor core to a course, they are unlikely to provide areason to justify discrimination based onacademic standards. Nor can academic standardsbe used as justification for barring whole groupsof disabled people from courses or services. Anyjustification has to be relevant to the academicstandards of a particular course and to the abilitiesof an individual person.

A severely dyslexic student applies to take acourse in Journalism. She does not have theliteracy necessary to complete the coursebecause of her dyslexia. The school rejects her,using the justification of academic standards.This is likely to be lawful.

The school now introduces a policy of rejectingall dyslexic applicants to Journalism. The policydoes not allow course selectors to considerdifferent levels of dyslexia, the ability ofindividual applicants or the range of possibleadjustments. This is likely to be unlawful.

Reasons that are material and substantial

60 Disability-related less favourable treatment mayalso be justified as long as the reasons for thetreatment are both material to the circumstancesof the particular case and substantial.

61 This is an objective test. ‘Material’ means theremust be a reasonably strong connection betweenthe reason given for the treatment and thecircumstances of the particular case. ‘Substantial’means, in the context of justification, that the

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reason must carry real weight and be ofsubstance.

62 Before disability-related less favourable treatmentcan be justified for a material and substantialreason, it is necessary to consider whether or notthe education provider is also under a duty tomake reasonable adjustments in relation to thedisabled person but fails to comply with that duty.If the education provider has failed to comply withthe reasonable adjustments duty it may not beable to justify the disability-related less favourabletreatment even if there is a material andsubstantial reason.

A blind man is not accepted on a gas weldingcourse as it is a practical course which requiresthe students to weld pieces of metal together.The only way to tell if the metal is meltedsufficiently to weld to another piece is by lookingat its consistency and colour. There is noreasonable adjustment that would enable theblind man to do this analysis of the metal. Thismay be lawful as the reason he is rejected is asubstantial one and is clearly material to thecircumstances.

63 Where the education provider has a duty to makea reasonable adjustment it is necessary toconsider not only whether there is a material andsubstantial reason for the disability-related lessfavourable treatment, but also whether thetreatment would still have been justified even ifthe education provider had complied with its dutyto make reasonable adjustments. In effect, it isnecessary to ask the question ‘would a reasonableadjustment have made any difference?’ If areasonable adjustment would have made adifference to the reason that is being used to

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justify the treatment, then the disability-relatedless favourable treatment cannot be justified.

The maintenance of other prescribed standards,prescribed types of treatment and treatment inprescribed circumstances

64 The Act allows for future regulations to list anystandards, treatments or circumstances that mayalso provide reasons to justify less favourabletreatment. At the time of writing this Code thereare no regulations.

VictimisationWhat is victimisation?

65 Victimisation is a special form of discriminationwhich is made unlawful by the Act. It applieswhether or not the person victimised is a disabledperson. Victimisation is unlawful if it occurs inrelation to the provision of post-16 education orother related services covered by Part 4.

66 The purpose of the victimisation provisions are toprotect individuals (whether disabled or not), whomake or support a claim, from reprisal.

67 It is unlawful for one person to treat another (‘thevictim’) less favourably than he treats or wouldtreat other people in the same circumstances(regardless of disability) because the victim has:

� brought, or given evidence or information inconnection with, proceedings under the Act(whether or not proceedings are laterwithdrawn)

� done anything else under or by reference tothe Act, or

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� alleged someone has contravened the Act(whether or not the allegation is laterdropped),

or because the person believes or suspects thatthe victim has done or intends to do any of thesethings.

A disabled student complains of discrimination,having been refused access to a number ofschool facilities. Another student on the disabledstudent’s course gives evidence at the hearing onhis behalf. As a result, the facilities staff at theschool start to ignore the requests made by thestudent who gave evidence and in some casesrefuse to let him have access to the facilities.This amounts to victimisation.

A non-disabled student acts as a witness in acomplaint by a disabled student against alecturer. Later, in retaliation, other lecturing staffbegin to ‘lose’ the non-disabled student’s work,and hand assignments back later than for otherstudents. This is likely to be victimisation, andtherefore unlawful.

68 It is not victimisation to treat a person lessfavourably because that person has made anallegation which was false and not made in goodfaith.

69 However, the fact that a person has givenevidence on behalf of a claimant in a claim whichwas unsuccessful does not, of itself, prove that hisevidence was false or that it was not given in goodfaith.

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A disabled young man makes a series ofallegations claiming that his tutor isdiscriminating against him. The allegations arewithout any foundation, and are part of apersonal grudge that the young man has againstthe tutor. The education provider decides tosuspend the young man from the course.Because of the particular circumstances, this isnot likely to be victimisation and is likelytherefore to be lawful.

70 Unlike the other forms of discrimination which aremade unlawful by the Act, victimisation may beclaimed by people who are not disabled as well asby those who are.

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This appendix is included to aid understandingabout who is covered by the Act. A Governmentpublication ‘Guidance on matters to be taken intoaccount in determining questions relating to thedefinition of disability’ is also available.

When is a person disabled?

A person has a disability if he has a physical ormental impairment, which has a substantial andlong-term adverse effect on his ability to carry outnormal day-to-day activities.

What about people who no longer have adisability?

People who have had a disability within thedefinition are protected from discrimination evenif they no longer have a disability.

What does ‘impairment’ cover?

It covers physical or mental impairments; thisincludes sensory impairments, such as thoseaffecting sight or hearing.

Are all mental impairments covered?

The term ‘mental impairment’ is intended to covera wide range of impairments relating to mentalfunctioning, including what are often known aslearning disabilities and mental health conditions.

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Appendix B: The meaning of disability

What is a ‘substantial’ adverse effect?

A substantial adverse effect is something which ismore than a minor or trivial effect. Therequirement that an effect must be substantialreflects the general understanding of disability asa limitation going beyond the normal differencesin ability which might exist among people.

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 islikely to be at least 12 months; or

� which is likely to last for the rest of the life ofthe person affected.

Effects which are not long-term would thereforeinclude loss of mobility due to a broken limbwhich is likely to heal within 12 months and theeffects of temporary infections, from which aperson would be likely to recover within 12months.

What if the effects come and go over aperiod of time?

If an impairment has had a substantial adverseeffect on normal day-to-day activities but thateffect ceases, the substantial effect is treated ascontinuing if it is likely to recur; that is if it is moreprobable than not that the effect will recur.

What are ‘normal day-to-day activities’?

They are activities which are carried out by mostpeople on a fairly regular and frequent basis. The

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term is not intended to include activities which arenormal only for a particular person or group ofpeople, such as playing a musical instrument, or asport, to a professional standard or performing askilled or specialised task at work. However,someone who is affected in such a specialisedway but is also affected in normal day-to-dayactivities would be covered by this part of thedefinition. The test of whether an impairmentaffects normal day-to-day activities is whether itaffects one of the broad categories of capacitylisted in Schedule 1 to the Act. They are:

� mobility

� manual dexterity

� physical co-ordination

� continence

� ability to lift, carry or otherwise moveeveryday objects

� speech, hearing or eyesight

� memory or ability to concentrate, learn orunderstand or

� perception of the risk of physical danger.

What about treatment?

Someone with an impairment may be receivingmedical or other treatment which alleviates orremoves the effects (though not the impairment).In such cases, the treatment is ignored and theimpairment is taken to have the effect it wouldhave had without such treatment. This does notapply if substantial adverse effects are not likely torecur even if the treatment stops (ie theimpairment has been cured).

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Does this include people who wearspectacles?

No. The sole exception to the rule about ignoringthe effects of treatment is the wearing ofspectacles or contact lenses. In this case, the effectwhile the person is wearing spectacles or contactlenses should be considered.

Are people who have disfigurementscovered?

People with severe disfigurements are covered bythe Act. They do not need to demonstrate that theimpairment has a substantial adverse effect ontheir ability to carry out normal day-to-dayactivities.

Are there any other people who areautomatically treated as disabled under theAct?

Anyone who has HIV, cancer or multiple sclerosisis automatically treated as disabled under the Act.In addition, people who are registered as blind orpartially sighted, or who are certified as beingblind or partially sighted by a consultantophthalmologist are automatically treated underthe Act as being disabled. People who are notregistered or certified as blind or partially sightedwill be covered by the Act if they can establishthat they meet the Act’s definition of disability.

What about people who know theircondition is going to get worse over time?

Progressive conditions are conditions which arelikely to change and develop over time. Where aperson has a progressive condition he will becovered by the Act from the moment the condition

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leads to an impairment which has some effect onthe ability to carry out normal day-to-dayactivities, even though not a substantial effect, ifthat impairment is likely eventually to have asubstantial adverse effect on such ability.

Are people with genetic conditionscovered?

If a genetic condition has no effect on the ability tocarry out normal day-to-day activities, the personis not covered. Diagnosis does not in itself bringsomeone within the definition. If the condition isprogressive, then the rule about progressiveconditions applies.

Are any conditions specifically excludedfrom the coverage of the Act?

Yes. Certain conditions are to be regarded as notamounting to impairments for the purposes of theAct. These are:

� addiction to or dependency on alcohol,nicotine, or any other substance (other than asa result of the substance being medicallyprescribed)

� seasonal allergic rhinitis (eg hayfever), exceptwhere it aggravates the effect of anothercondition

� tendency to set fires

� tendency to steal

� tendency to physical or sexual abuse of otherpersons

� exhibitionism

� voyeurism.

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Also, disfigurements which consist of a tattoo(which has not been removed), non-medical bodypiercing, or something attached through suchpiercing, are to be treated as not having asubstantial adverse effect on the person’s ability tocarry out normal day-to-day activities.

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Disability Rights Commission publications

A range of information and guidance on theDisability Discrimination Act 1995 is available freeof charge from the Disability Rights Commission:

Telephone: 08457 622 633Textphone: 08457 622 644Fax: 08457 778 878Website: www.drc-gb.orgYou can email the DRC Helpline from our website

Post: DRC HelplineFREEPOSTMID 02164Stratford upon AvonCV37 9BR

Disability Rights Commission documents areavailable in alternative formats and/or languages.

Codes of Practice

Codes of Practice and accompanying guidance forPart 2, Part 3, Part 4 and Part 5 are availablethrough the DRC website (in electronic form) andthrough The Stationery Office on:

Telephone: 0870 600 5522Fax: 0870 600 5533Email: customer.sevices@tso.co.ukWebsite: www.tsoshop.co.uk

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Appendix C: Further information

Disability Equality Duty

The DRC has produced two statutory Codes ofPractice entitled The Duty to Promote DisabilityEquality Statutory Code of Practice (England andWales) and The Duty to Promote DisabilityEquality Statutory Code of Practice (Scotland)concerning the duty upon public authorities topromote disability equality which came into forceon 4 December 2006. Further guidance for specificsectors (including the education sector) affectedby these duties has also been produced. TheCodes, guidance and further information ondischarging these duties can be found on the DRCwebsite: www.drc-gb.org

Guidance about making a claim

The Court Service has booklets providing adviceon how to bring a case to court in England andWales. This is available at county courts or fromthe Court Service website:

www.courtservice.gov.uk

The DRC also produces a guide to making a claim.

Information is also available from the ScottishCourt Service about the court process andbringing a case to court:

Telephone: 0131 229 9200Fax: 0131 221 6890Email: enquiries@scotcourts.gov.ukWebsite: www.scotcourts.gov.uk

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Government publications

Guidance on matters to be taken into account indetermining questions relating to the definition ofdisability

Available from The Stationery Office (see above).

Providing Work Placements for DisabledStudents: A Good Practice Guide for Further andHigher Education Institutions (DfES/0023/2002)

Finding Out About People’s Disability: A GoodPractice Guide for Further and Higher EducationInstitutions (DfES/0024/2002)

These two publications are available from theDepartment for Education and Skills:

Telephone: 0845 602 2260Textphone: 0845 605 5560Fax: 0845 603 3360Email: dfes@prolog.uk.comWebsite: www.dfes.gov.uk

Post: DfES PublicationsPO Box 5050Sherwood ParkAnnesleyNottinghamNG15 0DJ

Guidance on building design

Copies of BS8300 Designing buildings and theirapproaches to meet the access needs of disabledpeople can be obtained from the British StandardsInstitute:

Telephone: 020 8996 9001

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Fax: 020 8996 7001Website: www.bsi-global.com

Access audits

The National Register of Access Consultantsprovides a database of registered access auditors.

Telephone: 020 7735 7845Fax: 020 7840 5811Email: info@nrac.org.ukWebsite: www.nrac.org.uk

Making websites accessible

Disabled people use a wide range of specialisthardware and software to access computers. It isimportant that websites are designed to becompatible with this. Websites can also have‘access features’ built into their design, such as achoice of font sizes or colour schemes.

More detailed guidance on making websitesaccessible has been developed by the BritishStandards Institution (BSI) and sponsored by theDRC. This is called PAS 78: A guide to goodpractice in commissioning accessible websitesand is for those responsible for commissioning ormaintaining public-facing websites and web-based services. More information can be obtainedfrom the DRC website: www.drc-gb.org

RNIB’s online Web Access Centre can also providemore information on designing and evaluatingwebsites.

Telephone: 020 7391 2178Email: webaccess@rnib.org.ukWebsite: www.rnib.org.uk

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The Office of the Independent Adjudicatorfor Higher Education (England and Wales)

A person wanting to make a complaint about ahigher education institution in England or Walescan use the Student Complaints Schemeestablished by the Office of the IndependentAdjudicator for Higher Education. This scheme isavailable for complaints about a higher educationinstitution made by a student at that institution ora student at another institution undertaking acourse of study, or programme of research,leading to the grant of one of the higher educationinstitutions awards. A complainant must have firstexhausted the internal complaints procedure ofthe higher education institution concerned beforebringing a complaint to the Office of theIndependent Adjudicator. Generally, a complaintwill not be considered by the Office of theIndependent Adjudicator unless it is receivedwithin three months of the date upon which theinternal complaints procedure were exhausted.

Making a complaint to the Office of theIndependent Adjudicator does not prevent acomplainant from pursuing a case through thecourts. The time limit for bringing an action incourt is extended by two months if a complaint ismade to the Office of the Independent Adjudicatorwithin six months of a discriminatory act.

The Learning and Skills Council (England)

A person wanting to make a complaint about afurther education provider in England funded bythe Learning and Skills Council can complain tothe Learning and Skills Council. A complainantshould have first exhausted the internalcomplaints procedure of the education providerconcerned before bringing a complaint to the

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Learning and Skills Council. Making a complaintto the Learning and Skills Council does notprevent a complainant from pursuing a casethrough the courts. The time limit for bringing anaction in court is not extended if a complaint ismade to the Learning and Skills Council.

Welsh Assembly Government

A person wanting to make a complaint about afurther education provider in Wales funded by theWelsh Assembly Government can complain to theWelsh Assembly Government. A complainantshould have first exhausted the internalcomplaints procedure of the education providerconcerned before bringing a complaint to theWelsh Assembly Government. Making acomplaint to the Welsh Assembly Governmentdoes not prevent a complainant from pursuing acase through the courts. The time limit forbringing an action in court is not extended if acomplaint is made to the Welsh AssemblyGovernment.

The Scottish Public Services Ombudsman(Scotland)

A person wanting to make a complaint about afurther or higher education institution in Scotlandcan complain to the Scottish Public ServicesOmbudsman. A complainant should have firstexhausted the internal complaints procedure ofthe institution concerned before bringing acomplaint to the Scottish Public ServicesOmbudsman. Generally, a complaint will not beconsidered by the Ombudsman unless it isreceived within twelve months of the date uponwhich the complainant became aware of thematter being complained about. Only inexceptional circumstances will the Ombudsman

260

consider a complaint that could be taken to courtand it will not consider complaints whereproceedings have begun.

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academic progression and transfer 9.14–9.15access audits 2.11, Appendix Caccessible formats

applications 8.24–8.25course information 8.19examinations 9.29resolving disputes 13.4

accommodation 9.5, 9.44achievements 2.16, 2.19admissions 8.1–8.3

arrangements 8.6attracting disabled applicants 2.25–2.27auditing policies and procedures 2.12course requirements 8.7–8.13enrolment and induction 8.36European and international students 8.34general considerations 8.4–8.5knowledge of students' disabilities and confidentiality

8.37–8.38marketing the course 8.14–8.19medical examinations 8.43–8.44offers 8.45process 8.26–8.33professional and vocational courses 8.35reasonable adjustments 5.11, 5.19recruitment activities 8.20–8.25seeking information about a disability 8.39–8.42unlawful discrimination 3.28

adult education 9.5local education authorities 1.4, 3.1, 3.16schools 1.5, 1.20, 3.17, Appendix A

advertisementsdiscriminatory 8.15–8.18, 13.11

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Index

encouraging applications from disabled people 2.27,8.14

agents 3.23aiding an unlawful act 11.13–11.17responsibility for acts 11.7

aiding an unlawful act 11.13–11.17arrangements (admissions) 8.6assessments 8.13, 9.5, 9.16

alternative types 9.38discrimination in practice 9.30–9.32dissertations and course work 9.36practicals and performances 9.35reasonable adjustments 8.13vivas, orals and presentations 9.34work-based 9.37see also examinations

assignments 9.16assistance dogs 6.5, 6.10autism 5.66, 8.28, 9.48

binding obligations 12.8–12.9blanket policies 6.21, 8.8blind people

accessible formats 8.19, 9.27, 13.4assumptions about 4.5, 4.14

board of management 11.3BS 8300 12.6, Appendix CBuilding Regulations 12.3–12.4, 12.7Building (Scotland) Act 2003 12.5Building Standards (Scotland) Regulations 12.5, 12.7

car parking 5.29, 9.5careers advice, training and libraries 5.47, 9.5, 9.43catering facilities 9.5, 9.43, 11.7CEHR see Commission for Equality and Human Rightscentral institutions 11.3centrally-provided services 9.43chaplaincies 9.5childcare facilities 9.5claims 13.8–13.9, Appendix C

264

against landlords 12.26–12.27bringing landlords into proceedings brought by

disabled people 12.28–12.32direct discrimination 4.21–4.25disability-related discrimination 6.32–6.37reasonable adjustments 5.79–5.82victimisation 7.9–7.12

Code of Practice on Rights of Access 1.8, 3.21Code of Practice for Schools 1.7, 3.20Code of Practice for Trade Organisations and

Qualifications Bodies 3.24, 8.35, 10.4colleges of further education (Scotland) 1.4, 3.1, 3.16

responsible body 11.3Commission for Equality and Human Rights

conciliation 13.6discriminatory advertisements 8.17enforcement 13.12

community education 1.4, 3.1, 3.16responsible bodies 11.3

comparatorsdirect discrimination 4.9–4.16disability-related discrimination 4.16, 4.17–4.19, 6.5,

6.6–6.10ex-students 9.52failure to make reasonable adjustments 4.16relevance of reasonable adjustments 4.17–4.19

competence standardsacademic progression and transfer 9.15admissions 8.4, 8.9–8.12disability-related discrimination 6.13, 6.24–6.32practicals 9.35professional and vocational courses 8.35and qualifications 9.17–9.29and qualifications for non-students 10.7–10.13reasonable adjustments 5.70–5.78

complaints Appendix Csee also claims

complaints procedures 2.13, 2.29–2.30, 13.2–13.4conciliation 13.6–13.7conference facilities 9.6

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conferment 10.6confidentiality

admissions 8.37–8.38reasonable adjustments 5.26–5.28, 5.66

consultancy services 9.6costs, reasonable adjustments 5.2, 5.36, 5.38, 5.46counselling services 9.5, 9.43course requirements 8.7–8.13course work 9.36courts 2.1, 3.38, 13.8–13.9

bringing landlords into proceedings brought bydisabled people 12.28–12.32

claims against landlords 12.26–12.27and conciliation process 13.7direct discrimination 4.22–4.25disability-related discrimination 6.33–6.37guidance Appendix Charassment 7.18–7.21reasonable adjustments 5.80–5.82victimisation 7.9–7.12

crutches 6.5, 6.10curriculum design 9.5

deaf students 5.14, 5.58, 9.23Department for Education and Skills Appendix CDesigning buildings and their approaches to meet the

access needs of disabled people (BS 8300) 12.6,Appendix C

dexterity-related impairment 4.11, 4.12, 4.14, 9.35diabetes 6.19, 9.43difficulty in learning 3.8direct discrimination 3.27, 4.1

admissions 8.3, 8.8claims 4.21comparators 4.9–4.16and disability-related discrimination 3.39, 6.2evidence 4.22–4.25exclusion 9.46harassment 7.17justification 4.20

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likely to occur 4.4–4.8qualifications for non-students 10.3student services 9.1what the Act says 4.2–4.3

disabilitydefinition 1.21, 3.2–3.6, 3.9, Appendix Bdiverse nature 2.4overlap with other definitions 3.8in the past 3.7social dimension 2.3

Disability Discrimination (Educational Institutions)(Alteration of Leasehold Premises) Regulations2005 12.1, 12.21

Disability Equality Duty 1.6, 2.1–2.2, Appendix Cadmissions 8.5, 8.13advertisements 8.14attracting disabled applicants 2.25gathering information 8.42planning ahead 2.10promoting positive attitudes 2.28

Disability Equality Scheme 2.1gathering information 2.16, 2.17involving disabled people 2.6, 2.8

disability-related absence 4.6, 4.9, 4.10, 4.15, 6.11disciplinary procedures 2.12, 9.47

disability-related discrimination 3.27, 6.1, Appendix Aadmissions 8.3claims 6.32–6.37comparators 4.16, 6.5competence standards 5.76, 9.20, 9.25and direct discrimination 3.39, 6.2exclusion 9.46harassment 7.17justification 6.12–6.32knowing a person is disabled 6.11qualifications for non-students 10.3reason for the treatment 6.6–6.10student services 9.1what the Act says 6.3–6.4

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Disability Rights Commission 1.29Codes of Practice 1.28, Appendix Cconciliation 13.6–13.7Disability Equality Duty 2.1, 2.8, Appendix Cdiscriminatory advertisements 8.17enforcement 13.11–13.12general functions 13.10information and advice 13.13–13.14publications 1.11, Appendix Cwebsite accessibility Appendix C

disabled peopleassumptions about 2.5definitions of disability under the Act 3.2–3.6disclosing a disability 5.20–5.25finding out about requirements 2.6–2.8

Disabled Students' Allowancemedical examinations 8.44reasonable adjustments 5.2, 5.35, 5.37, 5.48–9

disciplinary procedures 2.12, 9.46–9.48disclosure 5.20–5.25

admissions 8.37–8.38discrimination

admissions 8.1–8.45against students 9.1–9.52avoiding 2.1–2.30different forms 3.39–3.40enforcement 3.38liability for 11.1–11.17pressure to discriminate 3.33qualifications for non-students 10.1–14what the Act says 3.25–3.31see also direct discrimination; disability-related

discrimination; harassment; reasonableadjustments; victimisation

disfigurements 3.3, 4.5, 4.14, Appendix Bdisputes 2.29–2.30, 13.2–13.5

see also claimsdissertations 9.36distance learning 3.12, 9.5dogs (assistance) 6.5, 6.10

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DRC see Disability Rights Commissiondrugs 6.5, 6.10Duty to Promote Disability Equality Duty Statutory

Code of Practice (England and Wales), The 1.6,Appendix C

Duty to Promote Disability Equality Duty StatutoryCode of Practice (Scotland), The 1.6, Appendix C

dyslexia 5.9, 5.45, 5.48, 5.78, 9.14, 9.31

education authorities (Scotland)further education 1.4, 3.1, 3.16recreational or training facilities 1.5, 1.20, 3.17,

Appendix Aresponsible bodies 11.3

education providers 1.4, 1.25, 3.14–3.16, 3.18employees and agents 3.23financial resources 5.37, 5.47information and advice 13.14landlords of premises occupied 3.23nature and size 5.37, 5.42not affected by changes 1.5, 3.17, Appendix Anot covered by the post-16 sections 1.8, 3.19–3.22responsible bodies 11.1–11.4

Education (Scotland) Act 1980 11.3educational opportunities 2.16, 2.18e-learning 9.5emergency evacuation policies and procedures 2.12,

5.54employees 3.23

aiding an unlawful act 11.13–11.17responsibility for acts 11.5–11.6services and facilities for 9.6training 2.13, 5.11, 9.8

enforcement 3.38, 13.11–13.12England and Wales

Building Regulations 12.3–12.4, 12.7claims 13.8, 13.9, Appendix Cfurther education institutions 1.4, 3.1local education authorities 1.4, 1.5, 3.1, 3.16, 3.17,

Appendix A

269

responsible bodies 11.2enrolment 8.36, 9.5, Appendix Aentrance tests 4.19, 8.31–8.32epilepsy 6.17, 8.45Equality Act 13.6European students 8.34evacuation policies and procedures 2.12, 5.54evidence

direct discrimination 4.22–4.25disability-related discrimination 6.33–6.37harassment 7.18–7.21reasonable adjustments 5.80–5.82victimisation 7.9–7.12

examinations 9.5, 9.16, 9.24, 9.38discrimination in practice 9.30–9.32reasonable adjustments 2.12, 5.13responsibility for third parties 11.10vivas, orals and presentations 9.34written 9.33–9.34

exclusion 9.46–9.48expert advice 2.9ex-students 3.13, 3.31, 9.49–9.52

reasonable adjustments 5.6, 5.19

false allegations 7.6–7.7field trips 3.35, 9.5, 9.8, 9.13Finding Out About People's Disability Appendix Cformer students see ex-studentsformerly held qualifications 10.14further education, for adults 1.5, 1.20, 3.17, Appendix Afurther education institutions (England and Wales) 1.4,

3.1, 3.16responsible body 11.2

Further and Higher Education Act 1992 11.2Further and Higher Education (Scotland) Act 1992 11.3Further and Higher Education (Scotland) Act 2005 3.8

gathering information 2.6, 2.14–2.24admissions 8.39–8.42competence standards and qualifications 9.26–9.27

270

governing bodies 11.2graduation ceremonies 9.5grants, loans and other assistance 5.37, 5.48–5.51group work 9.11guide dogs see assistance dogs

harassment 2.1, 7.1admissions 8.3evidence 7.18–7.21ex-students 9.49policies and procedures 2.13qualifications for non-students 10.3, 10.14student services 9.1what the Act says 3.25, 3.32, 7.13–7.17

health and safety requirementsmaterial and substantial justification 6.17–6.23reasonable adjustments 5.37, 5.53–5.55

health services 9.5hearing impairments 11.5

see also deaf studentshidden impairments 3.3higher education institutions 1.4, 3.1, 3.16

Office of the Independent Adjudicator for HigherEducation Appendix C

responsible bodies 11.2, 11.3hypothetical comparators

direct discrimination 4.9, 4.15disability-related discrimination 6.5ex-students 9.52

induction 8.36, 9.5, 9.7induction loops 5.58, 5.60information and communication technology 5.29, 9.5information gathering see gathering informationinternational students 8.34interviews 8.27, 8.28, 8.30

job references 9.5, 9.50justification

course requirements 8.12

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direct discrimination 4.20disability-related discrimination 6.3, 6.12–6.32reasonable adjustments 5.68–5.70

landlords 3.23claims against 12.26–12.27conditions on consent 12.24–12.25consent 12.10–12.12proceedings brought by disabled people 12.28–12.32withholding consent 12.13–12.23see also leases

Learning and Skills Act 2000 3.8Learning and Skills Council Appendix Clearning difficulty 3.8learning disabilities 2.8, 9.48, 13.4leases 12.1, 12.2, 12.8–12.10

see also landlordslegal proceedings see courtsleisure facilities 9.5, 9.43less favourable treatment

direct discrimination 4.2, 4.3, 4.5–4.8, 4.11, 6.2disability-related discrimination 6.2, 6.3, 6.6–6.10victimisation 7.4–7.6see also justification

libraries 9.5, 9.16, 9.42lip-reading 5.58, 5.66, 8.28, 9.11, 11.5listed buildings 12.8loans 5.37, 5.48–5.51local education authorities (England and Wales)

higher and further education 1.4, 3.1, 3.16recreational or training facilities 1.5, 1.20, 3.17,

Appendix Aresponsible bodies 11.2

manual dexterity 4.11, 4.12, 4.14, 9.35material and substantial justification 6.13, 6.14–6.23medical examinations 6.23, 8.43–8.44mental health conditions 6.5, 6.10, 9.24, 9.40mental impairments 3.2, 3.3, Appendix B

see also learning disabilities

272

mobility difficulties 5.8, 6.5, 6.10monitoring see gathering informationmore favourable treatment 2.1, 3.26more than one party responsible 11.11–11.12

National Register of Access Consultants 2.11non-students, discrimination in relation to qualifications

10.1–10.14

offers of admission 8.45Office of the Independent Adjudicator for Higher

Education Appendix Corals 9.34outdoor education 9.5

parking 5.29, 9.5PAS 78: A guide to good practice in commissioning

accessible websites 12.6, Appendix Cperformances 9.35physical features 5.3, 5.5

access audits 5.15–5.16definition 5.30–5.31duty to ex-students 9.51leases and building regulations 12.1–12.32

physical impairments 3.2, 3.3planning ahead 2.10–2.11policies and procedures

auditing 2.12implementing 2.13, 9.15

positive attitudes 2.1, 2.28practicality, reasonable adjustments 5.44–5.45practicals 9.35prayer areas 9.5pre-course assessments 8.27–8.30presentations 9.34pressure to discriminate 3.33private providers 3.21, 3.22professional and trade qualifications 3.24, 8.35,

9.28–9.29, 10.4, 10.13, 11.10progression 9.14–9.15

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progressive conditions 3.3, Appendix BProviding Work Placements for Disabled Students

Appendix Cprovision for students 3.29provisions, criteria and practices 5.3, 5.4, 5.29

see also competence standards

qualificationsfor admission 8.11–8.12competence standards 9.17–9.29discrimination in practice 9.30–9.38non-students 10.1–10.14reasonable adjustments 5.19, 5.32–5.34unlawful discrimination 3.30, 4.24

qualifications bodies 3.24, 8.35, 9.28–9.29, 10.4, 10.13,11.10

reasonable adjustments 5.1–5.2, Appendix Aadmissions 8.3, 8.13, 8.15, 8.19, 8.20, 8.26, 8.28–8.30,

8.31–8.32, 8.33, 8.44anticipating 2.6, 5.11anticipating every barrier 5.12–5.14claims 5.79–5.82comparators 4.16competence standards 5.71–5.78complaints procedures 13.3–13.4confidentiality 5.26–5.28continuing duty 5.17–5.18costs 5.46disability-related discrimination 6.15, 6.16, 6.36disadvantages giving rise to the duty 5.8duty 5.3–5.7duty to disabled people and students at large

5.9–5.10, 5.19education provider's financial resources 5.47effect of an individual's disability 5.43effectiveness in preventing disadvantage 5.39–5.40failure to comply 3.27grants, loans and other assistance 5.48–5.51health and safety requirements 5.53–5.55

274

justification of failure to make 5.68–5.70knowing a person is disabled or is a student 5.20–5.25leases and building regulations 12.1–12.32nature and size of institution or service 5.42other factors 5.58–5.61physical features 5.15–5.16, 5.30–5.31practicality 5.44–5.45in practice 5.62–5.67provisions, criteria and practices 5.29qualifications for non-students 5.32–5.34, 10.3,

10.9–10.11relevance to comparison 4.17–4.19relevant interests of other people 5.56–5.57social dimension of disability 2.3student services 9.1, 9.10–9.12, 9.14, 9.16, 9.21–9.25,

9.27, 9.30–9.38, 9.40–9.41, 9.45, 9.51support from other agencies 5.52training 2.13type of service being provided 5.41

reasonableness 5.35–5.38, 5.69recreational and training facilities

education authorities (Scotland) 1.5, 1.20, 3.17,Appendix A

local education authorities (England and Wales) 1.5,1.20, 3.17, Appendix A

voluntary organisations 3.22recruitment activities 8.20–8.25relevant circumstances 4.10–4.16research degrees and facilities 9.5residential accommodation 9.5, 9.44responsible bodies 11.1–11.4retention of disabled students 9.39–9.41risk assessments 6.18–6.22RNIB Appendix C

SBSA Technical Handbooks 12.5schizophrenia, assumptions about 4.11, 4.14School Standards and Framework Act 1998 3.17, 11.2schools

Code of Practice 1.7

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further education for adults 1.5, 1.20, 3.17, AppendixA

responsible bodies 11.2, 11.3sixth form education 3.20, 3.22

ScotlandBuilding Standards (Scotland) Regulations 12.5, 12.7claims 13.8, 13.9, Appendix Ccolleges of further education 1.4, 3.1, 3.16education authorities 1.4, 1.5, 3.1, 3.16, 3.17,

Appendix Aresponsible bodies 11.3

Scottish Public Services Ombudsman Appendix Csensory impairments 3.3, Appendix B

see also hearing impairments; visual impairmentsservices Appendix Asign language interpreters 5.14, 5.47, 5.49, 8.28, 9.49sixth forms 3.20, 3.22social dimension of disability 2.3Special Educational Needs and Disability Act 2001

(SENDA) 1.9speech impairments 4.7, 4.13, 8.7, 8.12, 8.31, 9.19staff see employeesstatutory obligations 3.37student services 9.1–9.6

academic progression and transfer 9.14–9.15accommodation 9.44assignments and assessments 9.16centrally-provided services 9.43competence standards and qualifications 9.17–9.29discrimination in qualifications in practice 9.30–9.38exclusion 9.46–9.48ex-students 9.49–9.52induction 9.7keeping adjustments under review 9.45libraries and study facilities 9.42reasonable adjustments 5.19retention of disabled students 9.39–9.41teaching and learning 9.8–9.12work placements, field trips and study abroad 9.13

276

students 3.11–3.12see also ex-students

students' unions 3.22study abroad 9.5, 9.13study skills 9.5, 9.16substantial disadvantages 5.8substantial reasons see material and substantial

justificationsuperior landlords 12.11–12.12, 12.14–12.18

conditions on consent 12.24–12.25

teaching and learning 9.5terms of agreements 3.35–3.36third parties

centrally-provided services 9.43responsibility for acts 11.8–11.10

training and recreational facilities see recreational andtraining facilities

training for staff 2.13, 5.11, 9.8, 11.5transfer 9.14–9.15

universities see higher education institutions

victimisation 3.10, 3.27, 7.1, Appendix Aadmissions 8.3evidence 7.9–7.12ex-students 9.50qualifications for non-students 10.3student services 9.1what the Act says 7.2–7.8

visual impairments 9.23, 9.29, 9.37, 9.43, 9.44, 13.4see also blind people

vivas, orals and presentations 9.34voluntary organisations 3.22

Wales see England and Waleswebsite accessibility 2.11, 2.12, 8.19, Appendix Cwelfare services 9.5Welsh Assembly Government Appendix Cwheelchair users 4.5, 4.11, 4.14, 5.5, 5.39, 5.53, 5.55

277

work-based assessment 9.37work placements 9.5, 9.8, 9.13, 9.37

youth services 3.22, 11.2

278

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