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Disability Discrimination Act 1995
Disability Rights Commission
Code of Practice Post-16 Code of Practice (revised) for providers of post-16 education and related services
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Disability Discrimination Act 1995
Code of Practice Post-16
Code of Practice (revised) for providers of post-16 education and related services
© Disability Rights Commission 2007
All rights reserved.
The information contained in this publication is believed to be correct at the time of manufacture. Whilst care has been taken to ensure that the information is accurate, the publisher can accept no responsibility for any errors or 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
The Disability Rights Commission has written and produced this revised Code of Practice concerning new duties (under the provisions of the Disability Discrimination Act 1995 and associated regulations) upon providers of post-16 education and related services which came into force on 1 September 2006.
This Code replaces the previous Code of Practice for providers of post-16 education and related services, which was first published in 2002.
The Disability Discrimination Act 1995 was amended by the Special Educational Needs and Disability Act 2001 and introduced, for the first time, measures prohibiting disability discrimination in the post-16 education sector (and also introduced similar measures in respect of schools – see Code of Practice: Schools).
The initial duties which came into operation on 1 September 2002 – prohibiting less favourable treatment of disabled course applicants and students for disability- related reasons and requiring reasonable adjustments to be made for disabled course applicants and students experiencing substantial disadvantage in this context – have been supplemented by further duties upon post-16 education providers to make adjustments through providing auxiliary aids and services (which came into effect on 1 September 2003), and by the duties upon post-16 education providers to make reasonable adjustments to the physical features of premises (which came into effect on 1 September 2005).
By implementing the anti-discrimination requirements of the European Employment Framework Directive (see EU Council Directive 2000/78/EC of 27 November 2000) within Great Britain – through The Disability Discrimination Act 1995 (Amendment) (Further and Higher Education) Regulations 2006 (Statutory Instrument 2006 No. 1721) – to apply to virtually all post- 16 education providers, the government has clearly recognised the link between improving educational attainment levels for disabled people and thereby enabling better access to employment opportunities.
The new duties aim to reduce inequalities experienced by disabled people in relation to post-16 education. By doing this, it is expected that the educational attainment levels of disabled people will significantly improve and that this, in turn, will diminish inequalities disabled people experience in access to, and progression within, the labour market.
Providing effective means of obtaining increasingly necessary higher and further education qualifications is one of the ways in which full participation in society is encouraged. I firmly believe the new duties will make a real difference to disabled people in this regard and will also benefit post-16 education providers by helping them offer the highest quality of education services for all students.
Bert Massie CBE
Chairman, Disability Rights Commission
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
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
2 Attracting disabled applicants 27 Promoting a positive image 29
Resolving disputes 29
The Act’s provisions on post-16 education: an overview 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 40 education?
What else is unlawful under the Act’s provisions on post-16 43 education?
Who is liable for unlawful acts? 43
Other provisions 44
Introduction to the different forms of discrimination 45
What is direct discrimination? 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 59 has occurred?
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 66 adjustments arise?
Must education providers anticipate every barrier? 67
How can education providers identify possible adjustments 69 to 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 70 person 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 77 qualifications for non-students?
When is it ‘reasonable’ for an education provider to have 78 to 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 82 and resources
The effect of the disability on the individual disabled person 82 or student
The practicability of the adjustment 82
The financial and other costs of the adjustment 84
The financial resources of the education provider 84
The availability of grants, loans and other assistance to 85 disabled students
The extent to which aids and services will otherwise be 87 provided to disabled people or students
Health and safety requirements 88
The relevant interests of other people including other 90 students
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 101 is not complied with?
What evidence is needed to prove that the duty to make 102 reasonable adjustments has not been discharged?
What is disability-related discrimination? 105
What does the Act say? 105
Identifying comparators for disability-related discrimination 106