Reflections on disability
Of all the protected characteristics, disability is the most often invoked in student complaints. That is not surprising given the number and complexity of disabilities being manifested by the student population, in particular combinations of personality and learning disorders. Accommodating those students in an educational environment that is both academically competitive and socially dynamic can present a significant challenge. While the sector has made prodigious efforts, there remains room for improvement, primarily in relation to the duty to make reasonable adjustments.
It is useful to maintain sight of the aim being pursued by disability discrimination legislation, viz. the removal of barriers to education experienced by disabled persons. That noble aim can sometimes be frustrated by a number of enduring misconceptions and attitudes, as follows:
- Treating disabled students more favourably discriminates against non-disabled students. The Equality Act 2010 expressly provides that this is not the case. Institutions are required to correct for disability where reasonably possible, so that disabled students can pursue academic goals on a par with non-disabled students. The ostensible “more favourable” treatment is simply a means of creating a level playing field.
- The regulations say “no”. The duty to make reasonable adjustments applies to any provision, criteria or practice (i.e. any aspect of the institution-student relationship) that puts the student at a substantial disadvantage (more than minor or trivial) as a result of their particular disability. Hallowed regulations are not outside of the scope of the duty, and may therefore be required to be waived or modified in particular circumstances, where it is reasonable to do so. A modification or waiver that would compromise academic standards will not, of course, be reasonable.
- It is the thin end of the wedge/it creates a precedent. If an adjustment is a reasonable one to make, it must be made, unless there is an equally effective alternative means of preventing the disadvantage in question. Each case must be considered on its own merits.
- Our disability budget can’t afford it. There have been very few decided cases and hence little guidance on how to assess when the cost of an adjustment is reasonable. It is likely, however, that a court will expect an institution to assess reasonableness by reference to that institution’s overall resources, rather to a ring-fenced budget.
Disabled students are creating a culture change in education by demanding greater flexibility and a departure from the old way of doing things. By embracing it, everyone benefits.
Find out more about our employment team.
For advice or guidance on any commercial or legal issue, a member of our team can walk you through everything. Click here to discuss.