Introduction
Let us imagine Dr James, an ordinary academic member of staff, in an ordinary department, in an ordinary UK university in the twenty-first century. Let's be sufficiently generous to that group of people and also imagine that she is sympathetic to equality agendas.Footnote 1 One of the dozens of emails she receives each day reads something like this:
Aidan has provided the Disability Support Unit with evidence that he has a Specific Learning Difficulty. Aidan's Specific Learning Difficulty means he has difficulty with visual processing and in the production of accurate written work. His reading comprehension speed is slow. Aidan is likely to benefit from copies of PowerPoint slides and lecture notes being made available in advance (if not already available on the VLE); reading lists which distinguish between core and secondary reading and clearly state if students are required to read a text in its entirety; coursework hand-in dates being spread out; academic staff taking into account the potential for his Specific Learning Difficulty to have an impact on his studies when considering the form and content of assessments. Aidan will be permitted 25% extra time in all formal examinations.
What is Dr James supposed to do about this email?
Of course, the answer is context-dependent. If Aidan's course is one which involves research and analysis of data presented visually; or where written accuracy is important; or significant amounts of reading, including skimming, scanning are required; or where independent research is expected before a lecture takes place; or where ability to complete tasks in a tight timeframe is essential; or a host of other things that are recognisable and undisputed qualities of graduates, according to Quality Assurance Agency (QAA) benchmarks, then Dr James, however sympathetic she may be to equality agendas, may baulk a little at the implication of the email that Aidan be treated differently to others in his cohort through the adjustments she is implicitly being asked to make. All graduates in my discipline, she might think, need to demonstrate these skills. What if my friend in industry or a profession relies on my assessment in deciding whether to give one of our graduates a job? It is not reasonable, therefore, she might feel, to expect Aidan to be treated any differently from anyone else.Footnote 2
On the other hand, if the courses on which Dr James teaches do not need to assess ability to engage with written materials, and complete successive assessments, within a particular timeframe, Dr James might feel that it would be reasonable to ensure that neither Aidan nor indeed anyone else on the course is inadvertently expected to do so. Timeframes within which such assessments must be completed are there for practical and administrative reasons; Dr James and her colleagues need to complete the marking and process the marks in time for departmental examination boards to consider them. There is no need to make assessment timeframes tighter than those practical considerations require, especially if someone like Aidan were to be disadvantaged by so doing. Or, to the extent that the course assessments involve processing of written material, Dr James may understand that 25% extra time in assessments is a reasonable way to make sure that Aidan's abilities and competencies in the subject matter of the course, as opposed to his reading abilities, are what is being tested. There might be some things about which Dr James is unsure what would be reasonable. For instance, Dr James may be sure that her course is not testing the ability of students to follow lectures without being able to see and reflect on the associated PowerPoint slides before each lecture. If that is so, is it reasonable to expect her to adjust her normal practice, and ensure that her PowerPoint slides are available in advance of each lecture? And if it is, must that be four days before each lecture, or would 24 hours do?
1. Our research agenda
The tensions between the approach of the imagined university's Disability Support Unit, the expectations of Aidan and Dr James, and the legal obligations of their university, particularly under the Equality Act 2010 (EqA 2010), encapsulate the primary motivation behind the project on which we report in this paper. We believe that the legal position is currently misunderstood by university staff and students alike.Footnote 3 In reaching this view, we are drawing on our experiences working in Higher Education institutions: in the case of Cameron, 17 years working in Higher Education, 12 of which were researching and teaching specific learning difficulties, in an English language teaching unit and academic department in one pre-92 and one post-92 university in the North of England; Coleman's 22 years at every level of the disabled students support sector in England, including six years as the Head of a Disability and Dyslexia Support Service in a pre-92 university; and Hervey's 27 years as a member of academic staff and external examiner with a research agenda in equality law in pre-92 and post-92 universities in the North and Midlands of England.Footnote 4 We are also drawing on the results of a small pilot study, undertaken by Rahman in summer 2016.Footnote 5 The pilot involved 18 semi-structured interviews with people within a Northern pre-92 (Russell Group) university who either have insights as someone with particular professional expertise or who self identify as a disabled person, with mental ill-health, autistic spectrum conditions, and/or specific learning difficulties, or both. Participants were approached by email or word of mouth, using a snowballing effect, beginning from Cameron's and Coleman's networks. The data was anonymised and analysed to create fictional scenarios, which encapsulated the key themes arising from the experiences of those interviewed.Footnote 6 Our impression, confirmed in the literature,Footnote 7 is that the misunderstandings that pervade universities concerning the legal position of students with these kinds of disabilities may be leading to pressures and emotive responses. Consequently, the ensuing policies and practice lack rigour.
We should begin by being explicit about our positions and therefore the assumptions which inform our research agenda. All of us are positive about equality in higher education. We each have expertise in the field of equal treatment of people with disabilities: Cameron as Senior Lecturer in Education with a specialism in SpLDs and ASCs, and former Academic Director of a specialist specific learning difficulties tutorial service; Hervey as a Professor of Law with expertise in equality law; Rahman as a student intern on the project; Rostant as an Employment Judge; and Coleman as Head of a Disability Support Service. We set out to understand and explain the EqA 2010's obligations on reasonable adjustments for students with what are known as ‘unseen disabilities’, and the implications for university policy and practice, and thus for student experience. In so doing, we consider some broader legal and theoretical contexts, in particular the legal relationships between students and universities,Footnote 8 and understandings of disability in contemporary UK society, including the narratives of human rights activism.
By ‘unseen disabilities’, we mean mental health conditions, autistic spectrum conditions, certain long-term physical illnesses, and specific learning difficulties (SpLDs, including dyslexia, ADHD, dyspraxia). This project focuses on assessments, as the area of academic life of perhaps the utmost concern to students. The effects of university assessments on people with unseen disabilities are difficult to measure, experienced differently by different individuals, and are therefore easily open to dispute.
2. Students with ‘unseen disabilities’
As higher education in the UK metamorphoses through the current era of rising student fees, global marketisation, and ever more attention to metricised ‘success’ in both teaching and research,Footnote 9 it is accompanied by subtle and not-so-subtle shifts in the make-up of the student body, and the proportion of the student body comprising disabled students.Footnote 10
While there was a small rise in overall first-year student numbers between 2013 and 2016, there was a notably larger rise in the numbers of disabled students, both in absolute terms and as a proportion of the total.Footnote 11 Of the body of disabled students (enrolled in the first year of their course), those diagnosed with specific learning difficulties (SpLDs, including dyslexia, ADHD, dyspraxia) continue to make up the largest percentage (just under 50% of disabled students and about 5% of the entire student body). Over the past three academic years, the proportion of the disabled student body made up by students with SpLDs has dropped slightly, whilst the proportion of students diagnosed with mental health conditions and with autism spectrum conditions (ASCs) has grown. This pattern may be connected to the broader public familiarity with and acceptance of ASCs and mental health conditions; that is, there has been a period of catch-up for these two populations in comparison to public familiarity with SpLDs like dyslexia. It may also be connected to the shifting criteria for particular diagnoses governed by the American Diagnostic and Statistical Manual of Mental Disorders.Footnote 12 Overall, in 2015/16, students labelled with SpLDs, ASCs, or mental health conditions made up 65% of disabled students and just under 8% of the whole student body (up on just under 7% in 2013/14), although fewer students appear to be applying for Disabled Students’ Allowances (DSA) than these figures suggest.Footnote 13
On average, then, for each group of 50 students, there will be at least 4 students who experience SpLDs, ASCs, or mental health conditions. A university department with 1000 students has, on average, 80 students who have declared unseen disabilities, and probably more if we add in students with certain invisible long-term physical conditions such as epilepsy or Crohn's Disease. There may also be students who experience characteristics of SpLDs, ASCs or mental health conditions, but whose conditions are either undiagnosed or undeclared.Footnote 14 This is not a small issue.
Students with SpLDs, ASCs, and mental health conditions can experience certain shared challenges to educational participation, including: difficulties with organisation of study and of life;Footnote 15 difficulties in developing effective learning or participation strategies in the higher education context;Footnote 16 difficulties with some forms of assessment;Footnote 17 difficulties meeting expectations of written or spoken English, which impacts upon essay writing skills, or participation in seminars and other spaces where spoken participation is expected;Footnote 18 difficulties with particular aspects of cognition, such as working memory;Footnote 19 experience of high levels of stress and anxiety and/or lack of confidence in certain environments;Footnote 20 and concerns about what the label means and how it will be viewed by peers and tutors.Footnote 21 Students with these ‘unseen disabilities’ may experience one, two, or more of these difficulties, as well as difficulties specific to their ‘condition’. They may also experience difficulties inconsistently. It is common for students to experience certain environments as particularly disabling, and others as less so,Footnote 22 and it is also expected that students’ experience of disability may fluctuate for a number of different reasons. The accuracy of diagnoses of dyslexia, for sub-types of ASCs, and for some mental health conditions have been put into question by various academics in related fields.Footnote 23 Moreover, although the use of certain labels is changing, SpLDs, ASCs and mental health conditions are often described as varying in degree and type. It is possible for a student to receive a diagnosis of ‘borderline’, ‘mild’ or ‘severe’ dyslexia; to experience ‘mild’ depression, and to be diagnosed as on a particular point on the autistic ‘spectrum’. Here, the ‘spectrum’ should not be understood as linear, but multi-dimensional, and context-bound.Footnote 24 In practice, this means that two individuals who have been given the same broad diagnosis may experience very different educational challenges which differ in type, degree of difficulty, and which may depend upon the environmental barriers present in a particular context.Footnote 25 These differences have implications for legal redress. Identical diagnoses would not necessarily lead to the same outcome in litigation. When it comes to what duties apply under the EqA 2010, what may be ‘reasonable’ for one student given a particular diagnosis may not be so for another given the same diagnosis. Our analysis below, having explained why other types of legal claims are likely to be less useful, charts a course through the complex obligations of the EqA 2010, taking account of duties to the disabled student, as well as the position of universities and the staff who work within them, and the wider student body.
Evidence suggests that it is likely that current provision of reasonable adjustments for students with unseen disabilities is inconsistent. Other than a fairly uniform provision of 25% extra time in exams for many students with unseen disabilities, different universities approach the provision of reasonable adjustments differently, and there are also differences between and within departments within the same university.Footnote 26 For instance, some universities or departments employ a sticker-system to highlight assessed work submitted by disabled students, and others do not.
Universities also differ in the model for support worker services they adopt: some universities have in-house support worker services, whilst others outsource this support to agencies; some offer financial support for diagnostic assessment, others do not.
Some universities are more willing to ‘underwrite’ support for students who are in the process of applying for Disabled Students’ Allowances (DSA), while others will wait until they receive the DSA Needs Assessment report (which can take up to 14 weeks)Footnote 27 before putting support in place. Recent cuts and other changes to DSAFootnote 28 have also increased the inconsistency of provision for disabled students across the sector. For instance, DSA is no longer available to fund ‘non-specialist’ support workers, such as note-takers or personal assistants – leading to some universities arranging alternative provision while others continue to fund such support. Overall, the changes to DSA have increased the onus on universities to ensure equal access for disabled students.Footnote 29
All of these changes raise the question of whether greater care is needed when considering the adjustments required during exams and other university assessments in order for universities to fulfil their legal obligations. And – along with the overall changes to higher education, including increased ‘marketisation’, conceptualising the relationship between university and student as an ‘investment’, an increasing language of ‘service’ culture – all of these changes affect the likelihood of litigationFootnote 30 to enforce legal entitlements.
No university wants to enter into litigation, particularly not litigation involving its own students. Every university needs to balance litigation risk against other matters, including reputational damage.Footnote 31 Decisions about equality policies and practices are made not only on legal grounds. They also express the moral duties universities understand themselves as holding towards their student bodies,Footnote 32 as well as being driven by external factors such as government policy and the requirements of professional bodies.
But the law matters. In offering this analysis, we are seeking to enhance understanding of the legal position of students with unseen disabilities when it comes to their assessments. Our analysis is aimed at university senior management teams and their advisers, ordinary academic staff, and students. At the moment, we think lack of rigour in approach (and even downright muddle) currently pervades both understanding and practice.
3. Disability discrimination in higher education: the legal position
What then is the source of legal redress for a student with an unseen disability who considers that her or his university has failed to take into account the disability in designing or administering assessments? There are four possible causes of action: a claim under the Human Rights Act 1998 (HRA 1998), s 7; a claim in contract; a negligence claim; or a claim under the EqA 2010. In fact, as far as we have been able to determine, there has so far been almost no litigation of any type concerning unseen disabilities and university assessments. That is probably because students who seek to resolve a dispute that has not been resolved by the university's internal complaints processes tend to use the Office of the Independent Adjudicator (OIA).
The OIA is the ombudsman service for university students in the UK. It reviews student complaints against individual higher education providers. The recommendations of the OIA are not legally enforceable, although they carry a moral authority and the risk of reputational damage if ignored. Part 2 of the Higher Education Act 2004 requires that all universities in England must join this scheme, which is independent and free for students. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 drastically reduced the availability of legal aid, and even if legal representation is not employed, court fees must be paid and the procedure is drawn out and demanding.Footnote 33 The cost-free nature of the OIA scheme (to students), coupled with its relative speed and informality, makes it an attractive route for remedy compared to the courts.
But bringing a complaint to the OIA does not preclude litigation.Footnote 34 Students with no income or low income, with less than £3000 savings, would get remission on County Court fees.Footnote 35 If the OIA does not give the desired outcome, and the stakes are ever higher in the context of changes to contemporary higher education (seen, for instance, as an ‘investment’ of 3 x £9000 fees to be lost if the student does not graduate), then court proceedings look more appealing. In what follows, we consider the likelihood of the success of the four possible routes to legal redress outlined above. As the EqA 2010 route is by far the most likely, we consider that in detail in the remainder of the paper.
The HRA 1998 gives effects to the rights guaranteed by the European Convention on Human Rights (the Convention). It places an obligation upon public authorities to act compatibly with the ConventionFootnote 36 and an obligation of consistent interpretation upon courts.Footnote 37 This obligation of consistent interpretationFootnote 38 applies also to other human rights instruments guaranteeing the right to education to which the UK is a signatory.Footnote 39 Universities are public authorities for the purposes of the HRA 1998.Footnote 40 Section 7 of the HRA 1998 permits the bringing of proceedings against a public authority for breach of the obligation to act compatibly with the Convention. The Convention includes a right to education.Footnote 41 The right is ‘not to be denied’ an education. That right must be secured without discrimination.Footnote 42 Conceivably, a student who considers that insufficient accommodation for her disability had been made in the manner in which her degree is being assessed, may assert that her right to an education is being breached in a discriminatory manner. A successful claim of this nature could result in injunctive relief or damages or both.Footnote 43 However, the cases so far pursued in the UK courts under Article 2 of Protocol 1 of the ECHR and Article 14 ECHR have concerned only exclusion from education.Footnote 44 Moreover, the judgments have adopted a restrictive view of the Convention right, regarding it as a weak right requiring evidence of a systemic failure of the national educational system denying access of an individual to a minimum level of education within it. It is difficult, therefore, in the light of the approach adopted by the UK courts, to imagine that a student is better equipped to pursue a successful claim under the HRA 1998 than she would be in seeking to rely upon the provisions of the EqA 2010.
A second basis for litigation may be the common law. It is now established that a student's relationship with a university is contractual in nature, albeit with a public law element.Footnote 45 It follows that breaches of express or implied terms of that contract on the part of the university may give rise to litigation and, indeed, such claims have been brought and have succeeded.Footnote 46
Furthermore, claims in tort, where a university's actions in its role as a provider of education give rise to reasonably foreseeable harm to a student, are also possible. They depend upon the now well established principle that a duty of care exists on the part of education professionals to their students (and, presumably, vicarious liability on the part of their employers).Footnote 47
Both of these possibilities are discussed at length by Harris.Footnote 48 In the context of the issues on which we focus in this paper, however, neither seems the most likely way for a student to litigate where a university has failed to make an appropriate adjustment to a method of assessment. It is difficult to imagine an express contractual term binding the university to take steps beyond those guaranteed by the EqA 2010. An implied term to that effect is even more unlikely. As to a claim in negligence (for example), as Harris points out with some force, such claims suffer from the need to show that the education professional has failed to act ‘in a way in which reasonably competent teacher… would have acted’.Footnote 49 The requirement of reasonable foreseeability is also a difficulty here. It would have to be shown that it was reasonably foreseeable that a particular method of assessment would cause the precise damage claimed to the student in question. That might be particularly difficult if the academic was unaware of the existence of the disability or the way in which it impacted on that student's ability to carry out certain tasks. Again, it is difficult to see in what way our putative student with a disability would be better placed to pursue her claim by this route, especially because, as we will see, the EqA 2010 duties apply whether a disability is declared or not.
Of the four causes of action above, the EqA 2010 is by far the most realistic source of justiciable legal rights for students with disabilities seeking adjustments to assessments.
The EqA 2010 outlaws discrimination against students with a disabilityFootnote 50 by universities, and any other institutions within the higher and further education sector, in the ‘arrangements it makes for deciding upon whom to confer a qualification’.Footnote 51 Section 91(9) places upon those bodies a positive duty to make reasonable adjustments. To put it plainly, if a student with a disability is assessed in order to determine whether they are allowed to progress to a later part of their course of study or to decide whether they are awarded a degree and if so of what class, the relevant institution must make ‘adjustments’ to the assessment process – but, as we will explain below, only those ‘adjustments’ which are ‘reasonable’. Failure so to do would render the institution liable to an action in damages in the civil courts,Footnote 52 and would expose the institution to the potential for reputational damage.
(a) What is ‘disability’?
The EqA 2010 defines the protected characteristic of ‘disability’. There is no legal duty upon a university to make adjustments for students who are not disabled within the meaning of the Act. Section 6 adopts a ‘medical model’ to define disability. This model seeks to identify the extent to which a mental or physical ‘impairment’ limits the student's ability to carry out day-to-day activities. In other words, it is the effect of impairment upon function that creates the disability. The medical model stands in contrast to the ‘social model’ of disability adopted by a number of instruments, but most notably the United Nations Convention on the Rights of People with Disabilities (UNCRPD).Footnote 53
This paper does not seek to critique the choice of a medical model by the framers of the EqA 2010 and its predecessor legislation, the Disability Discrimination Act 1995 (DDA 1995).Footnote 54 There is a great deal in the literature already on this topic.Footnote 55 Nor is there any scope for an argument that EU law requires that the social model, particularly as enshrined in the UNCRPD,Footnote 56 should displace, or at least supplement, the narrower definition in s 6, for the purposes of litigation under the EqA 2010. The EU's adoption of the UNCRPD in 2010Footnote 57 meant that an obligation existed, from that point on, to interpret EU law consistently with the UNCRPD. Directive 2000/78/EC establishes a general framework for equal treatment in employment and occupation (The Framework Directive).Footnote 58 It includes disability as a protected characteristic and the EU's approval of the UNCRPD meant that from that point onward the Directive had to be interpreted as applying to people who met a the UNCRPD's social model definition of disability.Footnote 59 Arguably, this might require UK courts, when interpreting the EqA 2010 (the UK legislation which implements the Directive) to disapply s 6, in whole or in part, to the extent that it is incompatible with a broader social model definition.Footnote 60 The Framework Directive, however, is confined to employment. A proposed extension of protection to all other areas of EU competence (including education)Footnote 61 has thus far not been adopted and there remains no EU law outlawing disability discrimination in education. Although the UK is itself a signatory to the UNCRPD,Footnote 62 as already noted above, the obligation of consistent interpretation that imposes does not extend to adopting interpretations which are contra legem.Footnote 63
Under the EqA 2010, s 6, three elements must be proved before the right to complain of discriminatory treatment is established: the existence of an impairment (which may be mental or physical); the requirement that that impairment be ‘long term’; and finally that, for that long term,Footnote 64 it has had a substantial adverse effect on the student's ability to carry out day to day activities. We examine each of the elements of the definition of disability in turn, focusing on the impairments caused by unseen disabilities.
(i) ‘Impairment’
Any tendency to equate ‘impairment’ with ‘illness’ was dealt with firmly by the Scottish Court of Session, Inner House in Miller v Inland Revenue Commissioners Footnote 65 (a case brought under the DDA 1995 but of continuing authority). The leading opinion of Lord Penrose, at para 23, makes it clear that ‘physical impairment can be established without reference to causation and in particular, without any reference to any form of illness’. Thus, for example, there is no requirement that students with a SpLD need show that the difficulty is, or is caused by, an ‘illness’.
In J v DLA Piper,Footnote 66 the Employment Appeal Tribunal (EAT) made the point that there may be difficult medical questions in deciding the nature of an impairment. Where there might be a dispute as to the existence of an impairment, it would be sensible to identify whether the claimant's ability to carry out day-to-day activities was adversely affected and to draw ‘commonsense’ inferences about the existence of impairment from the results of that enquiry. The courts’ pragmatic approach, which dispenses with the complications of causation and even precise identification, focuses on the question of function. Does some aspect of the claimant's condition, physical or mental, impair their functioning?
Guidance on the interpretation of the EqA 2010 is to be found in the EHRC's Equality Act 2010 Technical Guidance on Further and Higher Education (the Technical Guidance)Footnote 67 and the Equality and Human Rights Commission (EHRC) Code of Practice on Employment 2011 (the Code). Appendix 1 of the Code deals with the meaning of disability. Paragraph 6 of the Appendix makes it clear that mental impairment is a term which is intended to cover mental illness, SpLDs and ASCs. Further insight can be found in government's own Guidance on Matters to be Taken Into Account In Determining Questions Relating to the Definition of Disability (the Guidance).Footnote 68 Paragraph A5, setting out a non-exhaustive list of impairments which can give rise to a disability, mentions developmental impairments ‘such as autistic spectrum disorders (ASD), dyslexia and dyspraxia; learning disabilities; mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias.; mental illness such as depression and schizophrenia’. There must, however, be an impairment. The EAT in J v DLA Piper Footnote 69 pointed out that low mood or anxiety caused by a reaction to adverse circumstances is not a mental impairment, as distinct from clinical depression. So a student who is suffering low mood or anxiety, for instance because of a bereavement, but is not suffering clinical depression, does not have a ‘disability’ under the EqA 2010.
(ii) ‘Substantial adverse effect’
Mere possession of the impairment is not sufficient on its own to establish a disability. The EqA 2010 requires that an impairment must have a substantial adverse effect on a person's ability to carry out day-to-day activities. Substantial merely means more than minor or trivial.Footnote 70 The phrase ‘day-to-day activities’ is not defined. The DDA 1995 did define the phrase and limited it to a consideration of a closed list of ‘activities’ which included, for example, mobility, physical dexterity and the ability to lift and carry ‘everyday’ objects.Footnote 71 The Guidance invites a consideration of time taken to carry out an activity,Footnote 72 the way in which an activity is carried out as compared to how someone without the impairment might carry out the same activity,Footnote 73 and the cumulative effects of an impairmentFootnote 74 or impairments.Footnote 75
The approach of the UK courts to the issue has been to focus the enquiry on things that a person cannot do or can only do with difficulty.Footnote 76 It is a ‘functional deficit test’. This approach is supported by the Guidance which gives the following example:
‘A person has mild learning disability. This means that his assimilation of information is slightly slower than that of somebody without the impairment. He also has a mild speech impairment that slightly affects his ability to form certain words. Neither impairment on its own has a substantial adverse effect but the effects of the impairments taken together have a substantial adverse effect on his ability to converse’.
A university assessment per se is not a ‘day-to-day activity’. But aspects of an assessment may be. So, for instance, an ability to take a patient's history, as part of an assessment on a medical degree, is close to (if not identical to) an ability to have an ordinary conversation in a professional context, in order to elicit information. That latter ability is a ‘day-to-day activity’. A student whose ASC meant that she had difficulty understanding what people mean, unless they are very direct and explicit, and who finds it hard picking up on nuance during conversations might have an impairment which has a substantial adverse effect on day-to-day activities.
(iii) ‘Long term’
The adverse effect must be long term, which means that it has either already lasted for 12 months, is likely to last for a total of 12 months, or is likely to last for the rest of the person's life.Footnote 77 The focus is not on how long the impairment has existed but for how long it has, or is likely to have, the relevant adverse effect. In cases involving developmental delay or SpLDs, this is unlikely to pose a problem. The disabling aspects of mental health conditions can be more difficult to predict or retrospectively ‘fit’ into the description of ‘long term’ since they can fluctuate and may cease altogether for periods of time only to reappear. The EqA 2010 makes specific provision for this in Sch 1, para 2(2) by providing that if a condition has previously had a substantial, adverse and long-term effect but has now ceased to do so, it is to be treated as continuing to have that effect if the effect is likely to recur. Likely means ‘could well happen’.Footnote 78 Most episodes of mental ill-health could well recur, so the majority of students with mental health impairments under the EqA 2010 meet the ‘long term’ criterion.
(b) The duty to make adjustments
Once a student meets the definition of disability, there is a duty upon the university to make reasonable adjustments to its assessments of that student, where the assessments put the disabled student at a disadvantage. The duty is contained in the EqA 2010, s 20 and for our purposes the relevant parts of the section are sub-sections 20(3) and (4):
‘… where a provision, criterion, or practice of A's [here the university] puts the disabled person at a substantial disadvantageFootnote 79 in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage’.
‘… where a physical feature puts a disabled person at a substantial disadvantage …. in comparison to persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage’.
Sch 13, para 2(4) provides that relevant matters include the provision of education, deciding on whom a qualification is conferred, and the qualification conferred.
However, and importantly, Sch 13, para 4(2) provides that a provision, criterion, or practice does not (our emphasis) include the application of a competence standard. Paragraph 4(3) describes a competence standard as ‘an academic… standard applied for the purpose of determining whether or not a person has a particular level of competence or ability’.
As far as we can tell, the meaning of these provisions is untested in the courts,Footnote 80 but it seems to us that they can be summarised thus. Students with a disability are entitled to a reasonable adjustment to a method of assessment, or the physical circumstances in which that assessment is carried out, if the assessment is used to decide upon the conferring or classification of a degree, or on progressing to the next stage of study. This is so unless the method of assessment itself tests a particular competence, for example, the ability to work within certain time constraints.Footnote 81 Students with disabilities are not entitled to have a lower standard of attainment expected of them as compared to non-disabled students.Footnote 82
The duty applies whether or not a university knows that a student has a disability.Footnote 83 This aspect of the EqA 2010 means that higher education institutions are worse placed than employers, who benefit from a specific exception to the application of the duty in cases where they do not know, or could not be expected to know, of the existence of the disability.Footnote 84
Conceivably, a court might take the view that an adjustment cannot be a ‘reasonable’ adjustment unless the university knew that it was needed. But that does not appear to be the effect of the EqA 2010, s 20, which instead situates the consideration of what is reasonable in the context of what a university can be expected to do to avoid the disadvantage caused by the ‘provision, criterion, or practice’ or the ‘physical feature’. The Technical Guidance, without explaining why, implies that the duty appears to be divided into an ‘anticipatory duty’Footnote 85 (imposing an obligation to consideration and action in relation to ‘barriers that impede all disabled people’), and a further ‘responsive’ (our term) duty, once appraised of an individual disabled student's needs.Footnote 86 These two separate duties should have implications for universities’ policies and practices.
The s 20 duty exists towards all students with a disability, whether declared or not. Failure to take basic common-sense steps, like adopting a dyslexia-friendly font as standard in printed examinations, or seeking to avoid last-minute changes to arrangements (particularly difficult for people with an ASC), might well result in a successful complaint of a breach of s 20, even by a student who, for instance, had not declared her/his dyslexia. Universities are obliged to behave appropriately, given that 8% of their students have an unseen disability. Universities can be expected to anticipate the common types of such disabilities and the common adjustments without which a student cannot be said to be experiencing university assessments without a disadvantage compared to other non-disabled students. Not to make the obvious adjustments would be unreasonable.
However, without detailed knowledge of an individual student's particular disability and resulting needs, it is not practically possible to ensure that all correct adjustments are made. Especially where a university has taken reasonable steps to ensure that students have the opportunity to disclose disability,Footnote 87 but the student has not done so, a court might not conclude that a particular step in relation to that particular individual would be a reasonable adjustment. In other words, students should not assume they can rely on the s 20 duty if they have not declared their disability.
What is clear at any rate is that for the duty to bite there must be a provision, criterion, or practice, or a physical feature which places the student in issue at a disadvantage compared to other non-disabled students in relation to a relevant matter. In the context of an assessment, the provision, criterion, or practice might be a matter inherent to the assessment itself, for example the setting of a three-hour time limit, or about the circumstances in which the assessment is carried out, for example sitting the examination in a large room alongside 100 other candidates. For a student whose SpLD means that she is slower at processing written text, the disadvantage as compared with students who do not have that impairment is that a time limit of three hours impacts upon her ability to complete the examination to a degree not experienced by students with processing speeds within the ‘normal’ range. For a student who has impaired concentration, consequent upon a depressive illness, sharing a hall with 100 other candidates represents challenges not experienced by students whose powers to shut out extraneous stimuli are not similarly impaired.
Once the disadvantage, which must be substantial, is established, the university is required to do what is reasonable to remove the disadvantage.
(i) What needs adjusting?
The first issue to be addressed is whether the ‘provision, criterion, or practice’ is really a competence standard.
Competence standards in university assessments are, in essence, what is being tested for. If an assessment process is aimed at testing the student's knowledge and understanding of a particular topic, then the competence standard is how well she performs against an established mark scheme calibrated to reflect levels of knowledge and understanding from the inadequate (fail) to the exceptional (starred first). Assessment processes in universities also seek to assess students’ skills. Skills typically being assessed in universities include reasoning and analytical skills, categorisation and structuring of thought, written or verbal communication skills, and time management. Indeed, the distinction between ‘knowledge’ and ‘skill’ in this context is disputed.Footnote 88 Any part of the assessment process which is a competence standard cannot by definition be a provision, criterion, or practice and need not be adjusted.
The distinction between competence standard and provision, criterion, or practice therefore requires an intense focus on what is being tested. If a law lecturer designs a module on international commercial law and sets, as an assessment, a mock arbitration in which students must form syndicates and debate a problem against each other, a student with a mental illness who, for example, when under stress, experiences paranoia and anxiety and a need to withdraw, might well be placed at a significant disadvantage. If the method of assessment is merely a more interesting way of finding out how much the students have understood about the substance of international commercial law (‘knowledge’), there would be a requirement to consider an adjustment for that student. If, on the other hand, the assessment was also to assess the ability of future lawyers to work in teams, to express themselves well verbally, and to think quickly (‘skills’), then the method of assessment is inextricably associated with a competence standard. There would be no EqA 2010, s 20 obligation.Footnote 89
To what extent universities may find themselves called upon to justify their decision to set certain competence standards, particularly where they place students with disabilities at a disadvantage, is a moot point. It is not difficult to imagine a claim before a court in which it is alleged that a university failed to make a reasonable adjustment to an assessment. If the defence were to be that no adjustment was required since the chosen method of assessment was, in the words of the Technical Guidance ‘inextricably linked to the standard itself’,Footnote 90 doubtless the university would consider it prudent to adduce evidence that that was indeed so. If there was little or no evidence that there had been a serious consideration of why that particular method of assessment had been chosen,Footnote 91 or that that particular competence was one which was really one which required testing, the university might face difficulty. To choose a ridiculous example for illustrative purposes, it is difficult to imagine an university persuading a court that ability of a student to sing answers to a question in perfect tune was really a competence standard unless the examination was a practical for voice students in the Department of Music. On the other hand, however, an ability to organise complex thoughts or concepts quickly and communicate them effectively in written or verbal form, or even an ability to operate under pressure, instrumentalised in a time limit for an examination, could all potentially constitute competence standards associated with degrees. The need to show that there is a link between the competence standard and the particular form of assessment chosen should encourage individual academic staff to consider carefully what they are testing (‘knowledge’, ‘skills’, a combination); how they are testing it; and why it is being tested in that way. It should also encourage universities to consider, at programme level, what the ‘competencies’ or ‘qualities of graduates’ of that particular university programme are, and how the form of assessments associated with particular degree programmes are necessary to demonstrate those competences or qualities. In our experience, neither practice happens uniformly across the board in higher education institutions. There are many good reasons for universities and their academic staff to think carefully about these questions: EqA 2010 compliance is just one of them, but an important one.
Once competence standards are excluded, every other aspect of the assessment process is a potential provision, criterion, or practice: length and location of examinations; whether the examination paper is printed in 12 point font; whether the examination is written or oral; what are the consequences of a fail or a low mark for overall degree classification, or ability to resit; and so forth. At this point, the sole remaining consideration is what it is reasonable to expect the university to do.
(ii) What is reasonable?
As far as we can tell, there is no appellate jurisprudence on this question available from the civil courts. The reason for this, as noted above, is that, at present, once internal processes have been exhausted, students wishing to complain about a failure by a university to make reasonable adjustments tend to use the OIA.
Once all internal procedures have been exhausted, a student may submit a complaint to the OIA. If the OIA finds that a reasonable adjustment has been denied, it will find the complaint justified and will make a recommendation to the university. The recommendations are not, however, legally binding. Neither are they published.Footnote 92 Quite what criteria are employed by the OIA in reaching its decisions thus remains opaque.
It follows that our analysis here can only be by analogy. There is existing jurisprudence in this area. It derives exclusively from the jurisdiction of the employment tribunals to hear complaints in relation to work, under the EqA 2010, Part 2, Chapter 5. We assume for the purposes of our analysis that the same approach would be adopted by the civil courts should a claim against a higher education institution be brought before them. It is unlikely that the civil courts will want to reinvent the wheel, particularly as that would run the risk of creating contradictory or inconsistent approaches to concepts which the entire structure of the EqA 2010 demands be treated as common across the various areas of application of the Act.
The general approach to the question of reasonableness is that the test is an objective one for the court.Footnote 93
The predecessors to the EqA 2010 in the area of disability were the DDA 1995, the DDA (Amendment) Act 2005 and the Special Educational Needs and Disability Act 2001. Helpfully, the DDA 1995, s 18D(1) set down a list of matters to be taken into account when considering the reasonableness or otherwise of an adjustment. Although they have not been repeated in the EqA 2010, the framers of the legislation preferring not to limit the matters that a tribunal could take into account, they have almost all found their way into the EHRC Employment CodeFootnote 94 and into the Technical GuidanceFootnote 95 and remain a helpful guide. We will adopt the list, adapted for the purposes of this paper, as a useful way of addressing the general topic of reasonableness.
Essentially, there are two broad aspects to the reasonableness test: effectiveness and practicability. An adjustment that will not be effective in mitigating the disadvantage suffered by the student is not a reasonable adjustment. Equally, it is not reasonable to require a university to do everything a student requests, however impractical that is.
(iii) Effectiveness
The EqA 2010, s 20 requires that the university do what is reasonable to ‘avoid the disadvantage’ caused to the disabled student by the particular aspect of the assessment that creates difficulties. It follows that a university is not required to make adjustments that are ineffective, although any particular adjustment need not be completely effective in removing the disadvantage in order to be considered reasonable.Footnote 96
In order to establish what adjustment or adjustments might be effective, the university must understand the way in which the impairment which underlies the disability interacts with the process of assessment to create the disadvantage in the case of the student with the disability. In employment, this is most often done by a process of workplace assessment. In the context of higher education, there is obviously a role to be played by any disability support teams, such as in specialist units operating as part of the general university student support structures. Universities cannot simply assume that one size fits all with a particular label when deciding on adjustments for assessments. Specialist units will need to understand the individual student and how their disability impacts on the ability to undertake specific assessments associated with their degree programme. Given the points we make above, concerning competence standards, it will also be necessary for specialist units to understand the assessments at issue, and what the relevant academic staff or programme are seeking to test in a particular assessment. All of this means effective and detailed/sufficiently specified communicationFootnote 97 between specialist units, students, and academic and professional services staff (eg charged with QA).
The danger of ‘one size fits all’ is perfectly illustrated by the case of Project Management Board v Latif.Footnote 98 That case arose out of the jurisdiction for employment tribunals to hear complaints against qualification bodies.Footnote 99 Ms Latif was registered blind. Her membership of the Project Management Institute (PMI) required her to take an examination set by the PMI. The PMI had had examination candidates who were registered blind in the past. They therefore agreed to allow Ms Latif double the time permitted to non-disabled candidates and the use of human ‘reader/recorder’ as they had with other such candidates. It did not, however, permit Ms Latif to use her own laptop or to use a computer supplied by the test centre onto which certain specialist software had been loaded. Ms Latif's preferred method of taking the examination was to use a computer she operated herself and she was placed at a disadvantage by having to use a method of working which was alien to her. She brought a claim of breach of s 20 and succeeded. The EAT, upholding the tribunal, noted that the tribunal had remarked upon the PMI's treatment of blind people as ‘a generic class rather than focussing on Ms Latif's individual needs’.Footnote 100
University policies or practices, such as automatic blanket application of extra time in an examination, or automatic extensions for assignments, or a signalling system for students’ work to be marked ‘sympathetically’ with regard to grammatical or spelling errors, or that in any other way adopt a ‘one size fits all’ approach are unlikely to be reasonable adjustments in the case of every individual student. As we noted above, however, universities are likely to want to adopt some blanket policies (such as use of certain fonts in examination papers). But they will need to go further. Effective adjustments take into account the requirements of each student. They consider how the impairment, interacting with the provision, criterion, or practice, or physical feature of the university, creates disadvantage, and how that provision, criterion, or practice, or physical feature, might be adjusted to remove or alleviate the disadvantage.
Some students apply for Disabled Student Allowance (DSA). Those eligible for the benefit have a DSA Needs Assessment, carried out by an assessor independent of the higher education institution. Our focus here is on the relationship between the DSA Needs Assessment and the EqA 2010 duties. We do not consider here whether there are any other consequences for a higher education institution of not complying with a DSA Needs Assessment recommendation. In theory, a DSA Needs Assessment is supposed to make recommendations for the university aimed at meeting the individual needs of the student in question. In practice, however, the recommendations in DSA Needs Assessments are often minimal and generic. For example, it is common to see a recommendation that a student with a SpLD receive 25% extra time for an assessment. But if the ability to complete the task in the assessment within a set time is a competence standard, that is, it is (part of) what is being assessed, as we have explained, at least as far as liability under the EqA 2010 is concerned, a failure to comply with that recommendation will have no consequences for the university. Conversely, a university may believe that compliance with a DSA Needs Assessment recommendation is all that it is required to discharge its obligations under the EqA 2010. That may not be the case. It may be that other adjustments are required.
(iv) Practicability
The other element of the reasonableness standard is what it is practicable for the university to do. Students may request any adjustment under the EqA 2010: they are only entitled to those adjustments which are reasonable. The point of the qualifying term ‘reasonable’ is to exempt universities from having to make every adjustment that might mitigate or obviate the disadvantage. The assessment of reasonableness is a question of balancing a number of competing interests. There can be no ‘one size fits all’ in this aspect of the reasonableness test either. But there are some practices which are more and some which are less likely to be held by a court to meet the test. We consider some of the main elements of the practicability side of the reasonableness test below.
(1) The safety and health of other students or staff
At one end of the spectrum, a situation where a requested adjustment puts at risk the health and safety of other students, university employees, or even the general public, suggests that the adjustment would not be reasonable.
A breach of health and safety legislation can never be a reasonable adjustment. Imagine a student with ADHD and associated impaired coordination and motor skills. Following a risk assessment required under health and safety law, it has been agreed that he will undertake certain laboratory practicals only under supervision. The student subsequently asks for the supervision to be removed during assessment practicals, because the presence of the supervisor is making him anxious and affecting his ability to concentrate. He considers that his concentration difficulties are part of his ADHD and he thinks that it would be reasonable to make an adjustment by removing them for practicals which are part of his assessment. The university refuses, because of the perceived risk to the student and others in permitting him to do potentially dangerous practicals without supervision. If the university can show that its decision is necessary to secure compliance with relevant health and safety legislation, the requested adjustment would not be reasonable. If, on the other hand, a more general health and safety risk assessment is at issue, an adjustment might be reasonable if the increased risk to other students or staff is small and manageable.
(2) The cost of the adjustment, in the context of the available resource
The next two elements of reasonableness interact with each other: cost against available resource. The Technical Guidance makes the simple point that the simpler and cheaper an adjustment is to make, the more chance there is that it will be considered reasonable. But it is not just the cost in the abstract: what is relevant is the cost in the context of the resources available to the entity being asked to make the adjustment. The case of Cordell v Foreign and Commonwealth Office Footnote 101 confirms that a tribunal is entitled to take into account a variety of considerations when assessing the cost factor. In Cordell's case, these included the size of the budget set aside for reasonable adjustments, what the employer had spent in similar situations in the past, what other employers were prepared to spend, and policies set out in collective agreements. It also included the salary of the employee. To put it plainly, an adjustment for employees costing £50,000 would not be reasonable for a small bakery, but it might be for ICI or Virgin.
Applying similar principles to the higher education sector, a court might consider the overall university budget or turnover, the budget for reasonable adjustments, the last annual spend on reasonable adjustments, the cost of adjustments made for students in similar circumstances in the past, what other similarly-resourced universities provide, and any surplus made by the university from the presence of that particular student. A court might also consider the terms of the university's policies on disabled students, and how the university holds itself out to future students with disabilities, in terms of what resources it offers in the way of support. The implication is that larger, better-resourced universities are held to a different standard when it comes to what is reasonable than smaller, less-well-resourced universities. This is something that students might wish to bear in mind when choosing their university.
Relevant resources include both internally and externally available resources. In addition to financial resources, internal resources include available staff time (of both academic and professional services staff), staff competence (for instance, in terms of administrative expertise), and physical resources (such as rooms, equipment). External resources include externally available funding, and also resources owned or controlled by the student. So cost is unlikely to be a successful defence to a claim if the university has failed to consider to what extent other sources of funding may be available to take up some or all of the burden of a requested adjustment. Similarly, if the student is prepared, for instance, to use a specialist piece of equipment they already own to facilitate the adjustment, or there is an external source of such equipment,Footnote 102 that ought to be considered. Equally, an unwillingness of a student to do so would also be factored into an assessment of reasonableness.
An adjustment to an assessment may be impracticable for a range of reasons related to cost and available resources. Adjustments which make significant demands on the university in terms of limited resources such as staff time, or other resources such as physical space, are less likely to be reasonable than those which do not. For example, large scale written examinations, with many candidates in the same room at the same time, are so arranged because of the cost and administrative and logistical difficulties of timetabling and invigilating the same examination taken in several smaller spaces at the same time. If candidates did not all sit the same examination at the same time, this would create the need for complex quarantining arrangements or the setting of multiple examinations in the same topic for each cohort in order to protect the integrity of the assessment. Such an arrangement would have inevitable consequences for administrative staff time in supervising the quarantine; or academic staff time in devising examinations and marking them. If a university found itself simply unable to accommodate a large number of students at any one time demanding total or relative isolation when sitting an examination, because of lack of availability of rooms either in the university itself or anywhere in the relevant location, the issue of practicability might well be deployed to defend a claim of failure to make an adjustment. As pressures increase on academic staff being expected to teach larger cohorts, coupled with other managerial changes to UK higher education,Footnote 103 what is reasonable to expect a member of academic staff to do to adjust an assessment will also change.
Equally, if the disadvantage to the student could be mitigated in another way, less costly to the university, a more costly adjustment would not be reasonable. So, for instance, a policy to the effect that students must complete an examination within three hours in a large hall with all the other candidates might disadvantage a student with anxiety, who has a limited concentration span, especially in large groups of people. The student might request that the exam is broken up into three one hour time periods, with 20 minute breaks in between, and to sit in a room with fewer people, or alone with an invigilator. But if the student were to sit at the back of the room, so that s/he is not in the sightline of others, or at the front, so they do not have others in their sightline, might that mitigate the disadvantage at lower cost to the university, in terms of invigilation and room resources? If so, the requested adjustment would not be reasonable.
(3) The time available to make the requested adjustment
A third element of practicability to be considered in determining whether a requested adjustment to a university assessment is reasonable is the element of time. It is relatively common for universities to encourage students to declare unseen disabilities before they sit an examination, to allow relevant adjustments to be put in place. A student who discloses an unseen disability and asks for an adjustment the day before the examination would find it more difficult to persuade a court that the requested adjustment is reasonable than one who gives the university several months to put the requested adjustment in place. However, refusal to adjust a temporal rule, for instance a rule to the effect that disabilities must be disclosed within a certain time-frame,Footnote 104 could be unreasonable. This would be the case, for instance, if a student with an unseen disability such as dyslexia, dyspraxia, a medical condition such as fibromyalgia, or mental ill-health, found it more difficult than a student without such a disability to make a timely disclosure.
Universities often also have a policy to the effect that students have at most two (or sometimes three) attempts at each element of a university assessment. Often the second (and third) attempts are ‘capped’ as resits, with marks being recorded only as pass marks, rather than the actual grade achieved. But that policy itself may breach the EqA 2010, s 20. The question of time plays differently here. For instance, a student might delay undertaking a dyslexia test, fearing that the label implies laziness or lack of ability. If that student fails an examination, or a set of examinations, they might overcome that fear, take a test, and discover that they are indeed dyslexic. A university policy that required the notification of the dyslexia in advance of the first sit examinations, otherwise resit marks would be capped at the pass mark, whatever the achievement in an adjusted resit examination, is potentially a breach of the EqA 2010, s 20. The student could request an adjustment of that policy. In assessing the reasonableness of that adjustment, a court would note that there is no time (or other resource) involved in adjusting the policy in the case of the individual student, and allowing the ‘resit’ to count as a ‘first sit’. It is merely a matter of recording the marks achieved, rather than the pass mark. Such a policy would not be justified by reference to resources or time available to make the requested adjustment.
(4) Confidentiality
Students are entitled to have the existence of any disability kept confidential.Footnote 105 The EqA 2010 specifically provides that the university must have regard to the extent to which a proposed adjustment is consistent with the request for confidentiality.Footnote 106 There may well have to be a discussion over the trade-off between making very public alterations to an assessment for a student and the way in way such an adjustment will compromise confidentiality.Footnote 107 If the student insists on confidentiality and there is no practical way of making the adjustment without singling them out, the adjustment is less likely to be reasonable.
(5) Disadvantage to other (non-disabled) students, or other students with different disabilities
The employment tribunals have recognised that the effect of an adjustment for one employee upon other employees is obviously a relevant factor in assessing reasonableness.Footnote 108 Disadvantaging other students in an assessment, for example, by keeping an examination hall at an uncomfortably warm temperature for non-disabled students, would be an important consideration.
In the context of unseen disabilities, we might imagine an assessment which calls for a group project. A student with an ASC finds himself in a group with three other students, all from countries other than his own. Because of his ASC and their varying cultural approaches, he finds it almost impossible to get along with this group and, after working with that group for six weeks, applies to be transferred as a reasonable adjustment. It is proposed that he is transferred to another group which has already worked out what it wants to do, how it will be done and who will do it, in the remaining four weeks before the group project is due to be handed in. The second group considers that the new student will be disruptive and difficult, and will jeopardise the excellent mark that the second group can show (from formative assessment marks) it is headed for. In these circumstances, the adjustment requested might not be reasonable, partly because of the time available, but partly because of disadvantage to other students.
In our view, less likely to be a powerful consideration would be a perception of unfair advantage for the disabled student harboured by other students. The court might well ask what had been done to manage that perception and what difficulties it caused the university in any case. Educating non-disabled students about the effects of disabilities, and reasonable adjustments,Footnote 109 and effectively managing any reputational fallout from student complaints or dissatisfaction would be within the capacity of the university, and it would not be unreasonable to expect a university to take such steps.
(6) Existence of a university policy of which students have notice
We noted above that one factor in the cost/resources aspect of reasonableness is the university's policies on disabled students, in particular the support offered by a university to disabled students. In addition, a reasonableness assessment would take into account other university policies or practices of which the student has notice.
One element of university practice that might be requested to be adjusted is what is colloquially known as a ‘fit to sit’ policy. These policies differ in their detailed application, but the essence of each is that, if a student presents herself as ‘fit to sit’ the assessment, no subsequent adjustment will be made for disability (or ill-health, or other compassionate reason). So, taking an example from outside the EqA 2010 context, a student who suffers a bereavement of a close family member, but chooses nonetheless to sit an examination shortly thereafter may not subsequently have the examination deemed ‘not-sat’ for the purposes of re-sitting in the event of a fail or a poor mark. Universities might argue that ‘fit to sit’ policies embody competence standards. By presenting as ready to sit the examination, the student warrants that she is able to undertake the stringencies of the assessment as it stands.
The existence of the policy, and the fact that students knew, or could be deemed to have known, of its existence, would be one element a court would take into account when assessing reasonableness. But it would not be decisive.
A student with a diagnosis of clinical depression and anxiety, who experiences panic attacks, might decide to manage those without disclosing them to the university. That student might present for an examination, but find she was unable to complete it, having suffered a panic attack during the examination. She might request as a reasonable adjustment to be permitted to sit the examination de novo, as if she had not yet sat it, without penalty. In such circumstances, she might be successful in arguing that the university's unwillingness to disapply its ‘fit to sit’ policy is unreasonable.
(7) Existence of a ‘learning agreement’ or practice between the university and the individual student
Finally, courts would also take into account any individual arrangements, agreements, or practices in place between the university and the relevant student. For instance, a student with an ASC and associated social anxiety who is comforted by ‘stimming’Footnote 110 (which could, for instance, constitute hand-flapping or producing guttural noises), might be concerned that the stimming would impede her ability to undertake a practical examination, for instance a medical student taking a patient's history. The university and the student might agree that the student would access support to develop strategies to manage her social anxiety. If the student failed to access the support, but nonetheless requested an adjustment to the assessment (for instance, in the form of being allowed to retake a failed assessment as if for the first time), the court would take into account the reasonableness of that request, given that the student had not kept her ‘side of the bargain’ in accessing the support provided to accommodate her disability.
Overall, what is important is that the question of reasonableness is a multi-factoral consideration. A reasonable adjustment is an adjustment which addresses the specifics of an individual student in the context of the specifics of an assessment. Attempts at making adjustments to assessments are unlikely to be robust unless all of the following are addressed. First, adjustments must be based on a properly informed understanding of the student's disability. Secondly, there must be a clear consideration of the way in which the chosen method and/or physical circumstances of assessment (the ‘provision, criterion, or practice’, or ‘physical feature’) may disadvantage the student as compared to non-disabled students. Thirdly, a consideration of what adjustments would mitigate or relieve that disadvantage altogether is required. Finally, thought must be given to what factors might make it unreasonable to expect the university to make the adjustment or adjustments.Footnote 111
Conclusions
What might Dr James, with whom we began our analysis, make of all the above? What might the senior management team in her university? What would be helpful to them would be a clear answer to the question ‘what must I/my university do to secure EqA 2010 compliance for students with unseen disabilities?’ From Aidan's point of view, the question is similar: ‘what are my legal entitlements under the EqA 2010?’
We hope that it is plain from this analysis that the best that can be done in terms of the answer to the questions that our imaginary characters would like to have answered is to say that the structure of the law suggests a process or series of processes that will make decisions more or less robust in terms of EqA 2010 compliance. We cannot definitively advise that a particular approach will fulfil the requirements of the EqA 2010. There is no ‘quick fix’.Footnote 112 All that can be done is to suggest the relative likelihood of different policies or processes being EqA compliant. This is our first – and in some ways most important – conclusion. Where students, academic staff, or members of university management bodies do not understand this aspect of the EqA 2010 and its obligation to make reasonable adjustments to assessments for students with unseen disabilities, the confusion (or muddle) which motivated our project ensues.
Secondly, though, there are some points of relative clarity. Some things are so known and so common-sense and so straightforward to do that a failure on the part of a university to do them would almost certainly breach s 20. We mentioned some of these ‘anticipatory duties’ above: the use of dyslexia-appropriate fonts in examination papers is a candidate example.
General policies about the administration of assessment, articulated clearly and in a timely manner to all students, may well be defensible in the event of a request for an adjustment to such policies, so long as there are procedures in place to depart from those general policies where individual circumstances dictate. In other words, compliance with anticipatory duties does not exculpate universities from responsive duties.
Some things are not required under the EqA 2010 – although there may be a belief by some that they are – particularly adjustments to competence standards.
Thirdly, a university reduces the risk of litigation (and reputational damage) if it follows certain approaches indicated by the EqA 2010. Even if litigation is rare, we can expect its ‘shadow’ to shape behaviour.Footnote 113 A key approach is to have policies, procedures, and resources through which individual assessment of individual students, in the light of specific assessments, in consultation with academic and other relevant staff, take place. Within a complex organisation like a university, there will be a variety of actors contributing information and their interpretations of that information to the questions of whether there is a impairment, with a substantial long-term adverse effect on the ability to carry out day to day activities, whether an assessment in its unadjusted form places the student at a disadvantage, if so whether what is requested to be adjusted is actually a competence standard, and if not, what adjustments would have the effect of reducing or removing the disadvantage, and finally what is reasonable in the circumstances. Universities therefore run a risk of being non-compliant with the EqA 2010, unless there is some way of synthesising the various elements feeding into a decision to produce an institutionally-owned outcome for each student. One way of reaching such a synthesis is to ensure meaningful dialogue between the constituent units within a university, each of which has knowledge and understanding of the various aspects that need to feed into the decision for an individual student.Footnote 114
Assessments that are specifically tailored to assess the relevant competence standards are more likely to be EqA 2010 compliant. Of course, every form of assessment carries some element of practical limitation, be that temporal or material, and so it is not possible to assess solely on the basis of competence standards. But whether the competencies being assessed are skills or knowledge or a blend of both, it is both sound pedagogical practice and good for equality when academic staff think clearly and explicitly about how and why they are assessing the way they are assessing, and communicate that to their students. The EqA 2010 does not go so far as to require this kind of good practice within its ‘anticipatory’ duties, but universities who ensure that their staff adopt these practices are more likely to be compliant with the EqA 2010. There is a challenge here for academic staff who remain within a mind-set of ‘standard practice’ university assessments (three-hour unseen examination, 4000-word assessed essay) without giving much thought to why they are doing so.
Universities will want to have clear and evidenced consideration of what aspects of assessment constitute competence standards, and why they are so. That is likely to be within the expertise of the academic department setting the assessment, though might rest with a central unit charged with oversight of assessments in the context of programme specifications and QA. Disability units are likely to be able to interpret and advise on any medical evidence, and provide information on how the impairment interacts with the form, place, or time of the assessment, creating disadvantage. They might thus be well placed to make suggestions about what adjustments might help. In the final analysis, unless an individual or a body within a university is charged with taking all of these things into account, for each student, and then making a final decision as to whether the duty to make reasonable adjustments applies, and if so how it ought to be complied with, it is hard to see how the rigour that the EqA 2010 demands can be present.
Fourthly, from the point of view of students, those students who have an understanding of their legal rights are likely to find it easier to navigate their higher education experience. As reasonableness in requested adjustments includes consideration of the resources available to a university, prospective students with unseen disabilities may want to consider carefully which university is best for them: on the whole, larger, older, universities are better-resourced than smaller, more recently established universities. On the other hand, post-92 universities may have progressed further with inclusive learning and teaching, and have more standardised, agreed practice across the university, because of the managerial models that pertain in that context. Students are advised to make timely notification of any disabilities, and to have explicit discussions about requested adjustments, explaining why the adjustment is effective in mitigating the disadvantage as well as practicable, and – if necessary – explaining or exploring why what is being requested to be adjusted is not a competence standard. Such discussions can include concerns about confidentiality, bearing in mind the confidentiality obligations of the university under the EqA 2010, and noting this may be a difficult call for many students. Students who keep to their ‘side of the bargain’ in terms of accessing available support, or making available resources which they own or control, are more likely to be successful in showing reasonableness of a requested adjustment.
The obligations which we outline in this paper, although focused on assessment, of course also apply in other contexts. Some of the same disciplines that our analysis suggests make EqA 2010 compliance more likely in the context of assessment apply also whenever a university is requested to make an adjustment for a student with a disability. Universities should focus closely on what a student's disability is, and in what way it is disabling, because of the application of a ‘provision, criterion or practice’ of the University, or a ‘physical feature’, in order to determine what will be reasonable in the circumstances.
The DDA obligations to make reasonable adjustments were first introduced in 1995. Before that, any adjustments that were made were voluntary: there was no underpinning legal obligation. Over those last 13 years, the higher education sector in the UK has changed quite significantly. Some of those changes have made it easier for students with unseen disabilities to access higher education, as we saw when considering the data on the proportion of disabled students (although some of the change may also be accounted for in greater public awareness and acceptance of unseen disabilities over the relevant period). In the context of massification of higher education, it is probably easier for universities to secure the policies and practices suggested by the ‘anticipatory’ obligation under the EqA 2010 than the ‘responsive’ obligation. Size and scale increase pressure to have policies and processes that apply institution-wide: where those are attentive to the needs of disabled students, the EqA 2010 can be said to have done its job.
But scaling up of any institution makes it more difficult for it to deal with individuals. Particularly where academic staff:student ratios worsen, and/or where student-facing administrative staffing is cut, or reorganised/centralised, or both, in the name of ‘efficiency’, the individual-focused ‘responsive’ duties of the EqA 2010 become more difficult to achieve. Along with massification has come marketisation and competition, which also change the nature of relationships between students and universities, and make universities more attentive to reputational damage. There is also – at least among some parts of the student population, and the UK population more generally – an increasing acceptability of disability rights narratives. This can lead to the desires and claims of an individual disabled student becoming articulated as human rights entitlements, with all the cachet that comes with ‘rights talk’.Footnote 115
These interlocking phenomena may lead to a tendency towards a ‘line of least resistance’ when universities respond to those students who request adjustments on the basis of a claimed disability: a university which gives a student what she wants is unlikely to be sued, criticised on social media, or marked down in a NSS questionnaire. Our inclination, however, is to caution against such ‘gold-plating’ of the EqA 2010 duties. The legislative settlement is a balance between various different competing interests, including of future employers of students, and indeed society more generally. In the long run, if carried to its extreme, a ‘line of least resistance’ approach could have the effect of devaluing degrees, and the associated reputational damage to the sector. We wonder also whether it might also have a detrimental effect on people with disabilities who are genuinely put at a substantial disadvantage by a particular form of assessment. If it becomes an open secret that a student need only claim the need for an adjustment in order to access special treatment in assessment contexts, it becomes more difficult to single out those who actually need special treatment, and to focus resource on making sure that that treatment is tailored to adjusting for the disability at issue. However appealing a claim to individual human rights may sound to our autonomy-focused Western twenty-first century ears, human rights claims are not unproblematic when it comes to questions of allocation of resource. Not least, this is because human rights allow those individuals who are sufficiently powerful and articulate to claim them to effectively bypass democratically legitimated processes, such as the adoption of legislation.Footnote 116 In the final analysis, we would therefore suggest that universities seek to comply with EqA 2010 requirements, but also seek to make sure that they are not going further than is necessary to do so.
Author ORCIDs
Tamara Hervey, 0000-0002-8310-9022.
Appendix: summary of the practical considerations flowing from the implications of our analysis
Practical considerations for a higher education institution
What are our policies and procedures for determining whether a student is disabled, and are they transparent?
Disability is defined in law, according to objective criteria. There must be a long-term (mental or physical) impairment, which has a substantial adverse effect on the student's ability to carry out day-to-day activities. The description of the legal position on the definition of disability set out above is, perforce, a brief summary of the law. In fact, the case law on the definition of disability is extensive and the statutory provisions even more complex than we have space to deal with here.
What is clear, however, is that merely claiming to have a disability does not attract to a student protection under the EqA 2010 or impose upon a university an obligation to make adjustments. A university need not accept a student's assertion that s/he is disabled under the EqA 2010. Ultimately, it is for the university to form its own view, based upon whatever evidence it regards as useful and practicable to obtain. Universities may, for instance, decide to require medical certification of ‘impairment’. In light of the anticipatory duty the EqA 2010 places upon them, universities may adopt policies or procedures which err on the side of caution in the face of equivocal or limited evidence. That approach may avoid complaints or litigation. But it also carries some risks: in particular it does little to support the robustness of assessment methods or perceptions of unfairness among other students, academic staff or future employers of students. A more robust approach to what constitutes disability may pay dividends in that it is easier to attract ‘buy-in’ for adjustments for those students who meet the EqA 2010 definition.
What are our policies and procedures for determining whether the requested adjustment is reasonable?
Under the EqA 2010, universities need only make reasonable adjustments to a ‘provision, criterion, or practice’, or ‘physical feature’ which ‘puts the disabled person at a substantial disadvantage’ in relation to assessment ‘in comparison with persons who are not disabled’. Is what is being requested actually an adjustment to a ‘competence standard’? Universities may find that policies or practices that fail to distinguish carefully between the two are less effective in terms of staff (and student) support than those which do not.
That said, universities will want to be sure that they have clearly articulated statements of what knowledge and skills are being assessed in a particular assessment, and why they are being assessed in a particular way. At institutional level, these usually find expression in programme regulations or other statements of compliance with QA benchmarks. Regular consideration of the extent to which such statements address the question of what ‘competencies’ are being tested, how, and why, could be an important procedural aspect of assessing the reasonableness of requested adjustments.
Universities will also want to be sure that their procedures take into account the various elements that feed into a reasonableness decision, in terms of both effectiveness and practicability of a requested assessment. Universities must also have a process whereby, ultimately, a decision weighing all the relevant factors is made. Decisions that explicitly state the elements taken into account, and articulate the reasons for a decision that a requested adjustment is – or is not – reasonable will provide more protection against possible litigation than those which do not. By explaining clearly to a student why a particular decision is being made, particularly if that decision is made in dialogue with the student, they may also avoid future conflict between the university and the student, even if the student does not get everything they request.
Are our general policies adequate to meet obligations under general anticipatory duties under the EqA 2010?
Given that 8% of their students have an unseen disability, universities should consider what general policies will meet their ‘anticipatory duties’ under the EqA 2010. Universities can be expected to anticipate the common types of such disabilities and the common adjustments without which a student cannot be said to be experiencing university assessments without a substantial disadvantage compared to other non-disabled students. Not to make the obvious adjustments would be unreasonable. An obvious example is the use of dyslexia-friendly fonts.
Practical considerations for an individual member of academic staff
What is my assessment testing, how, and why?
The key practical consideration for individual members of academic staff is to be clear about what knowledge and skills their assessment is testing, how those skills are being tested, and why this is the case. This is, of course, nothing more than good pedagogical practice, and therefore ought not to be viewed as onerous. Determining what constitutes a ‘competence standard’ is a matter for academic staff who set and mark the assessment. Once this is clear, and if it has been effectively communicated to all students, a discussion with a student, and a disability support unit (or member of professional service staff located elsewhere in a university) administering a procedure by which it is determined whether a requested adjustment is reasonable should be relatively straightforward.
Practical considerations for a student
Am I disabled?
Disability is defined in law, according to objective criteria. A declaration of disability is insufficient to bring someone within the protection of the EqA 2010: there must be a long-term (mental or physical) impairment, which has a substantial adverse effect on the student's ability to carry out day to day activities. The university will not necessarily accept a student's assertion that she is disabled. Students may need to show how they fall within the EqA 2010 definition.
Does the university know of my disability?
While universities formally have a duty to make reasonable adjustments for students with disabilities whether the disability is declared or not, a student who does not declare a disability is likely to find it more difficult to show that a requested adjustment is ‘reasonable’ than a student who declares it.
Difficult questions of privacy arise. Individual students will reach their own conclusions on the balance between the university maintaining confidentiality and making adjustments to assessments.
What am I asking to be adjusted?
A request to adjust a competence standard cannot be successfully made under the EqA 2010. Such a claim would have to be brought under the HRA1998, contract, or tort, with all the difficulties outlined above. A request which clearly distinguishes between elements of the assessment which are a ‘competence standard’ and those which are not; which explains why the requested adjustment will be effective in mitigating their specific disadvantage; and which is practicable, taking into account health and safety, cost, resources, time-relevant elements, any disadvantage to other students, is more likely to be successful than a request which does not.
