Why create this article?
Unfortunately people with disabilities and long term medical conditions are still discriminated against in a number of areas, including education. The purpose of this article is to provide a summary of the Disability Discrimination Act, an importance piece of legislation protecting people with disabilities from being discriminated against. I am not a solicitor and I don't want to present this as infallible legal advice. However, I hope it is a fairly simple summary of the Act and its relevance in education. It also includes external links to specialist organisations who are able to give informed advice.
Introduction to the Disability Discrimination Act
The Disability Discrimination Act (from now on referred to as the DDA) was introduced in 1995 to end discrimination against people with disabilities. It has been continually expanded and revised over the years, with the most recent change being in 2005. It covers a number of areas, these include: -
- Access to Goods, facilities and services
- Buying or renting land/property
- Functions of public bodies
This article will focus on the DDA and its place in education. Before considering anything else though, how do we define a disability?
Definition of a disability in the DDA
The DDA is deliberately vague about this, no clear definition is given apart from: -
The condition must
- Be substantial and not minor nor trivial
- Be long term. The effect of the impairment has lasted or is likely to last at least twelve months.
- Have an effect on normal day-to-day activities like eating, washing, walking and going shopping
A normal day-to-day activity must affect one of the 'capacities' listed in the Act which include mobility, manual dexterity, speech, hearing, seeing and memory.
Both physical impairments (sensory conditions such as visual or hearing impairment or any mobility problem) and mental impairments (e.g. a mental illness) are included. People who had a disability in the past that meets this definition are also covered by the Act. Amendments were made in 2005 to ensure that people with HIV, cancer and multiple sclerosis are deemed to be covered by the DDA effectively from the point of diagnosis, rather than from the point when the condition has some adverse effect on their ability to carry out normal day-to-day activities.
So, this makes things a little bit clearer. Someone with condition that meets the criteria above is protected from discrimination. However, this poses another problem, what is discrimination?
Definition of discrimination
There are two forms of unlawful discrimination. These are: -
- It is unlawful to treat a disables person less favourably, for a reason that relates to his or her disability, than someone to whom that reason does not apply (i.e. a person without a disability) unless there is justification for this treatment
- It is unlawful not to make reasonable adjustments to assist the disabled person, unless there is justification for that failure.
What are the relevant bodies in education?
It is in section four of the Disability Discrimination Act and the Special Educational Needs and Disability Act (2001) that concerns us.
The relevant bodies, in education, are: -
- Local Education Authorities (LEAs)
- Providers of Adult Education
- The Statutory Youth Service
All of these bodies, under the DDA, are required to make “reasonable adjustment” and not treat a disabled person less favourably. But what is it that constitutes a reasonable adjustment?
What is a "reasonable adjustment"?
This can be a confusing matter, and remains largely untested in case law. The Act doesn’t specify what factors should be taken into account when considering whether or not a step is a 'reasonable' one to take. What is reasonable will vary according to: -
- The type of service being provided
- The nature of the service provider, and its size and resources
- How the person’s disability affects them in that context.
The following factors might be taken into account when considering what is reasonable: -
- How effective any steps would be in overcoming the difficulty that disabled people face in accessing the services
- How practicable it would be for the service provider to take these steps
- How disruptive taking the steps would be
- The financial and other costs of making the adjustment
- The extent of the service provider’s financial and other resources
- The amount of any resources already spent on making adjustments
- The availability of financial or other assistance.
To illustrate this, a university (with sufficient resources) will be under an obligation to improve accessibility to their facilities and buildings more than a school (who have more limited financial resources and smaller numbers of disables students) is.
For schools the duty under SENDA to make ‘reasonable adjustments’ does not extend to providing extra support or changing physical features. This is because extra support is already available for school pupils with statements of Special Educational Need (SEN), and schools are expected to make longer term plans for improving access to their buildings. Many don’t have the resources to improve their access so dramatically over such a short amount of time. To expect otherwise would be unreasonable.
Another example of an unreasonable adjustment would be if a student, who wasn’t able to write well, wanted to be exempt from exams and be assessed by essays during the year. This would be radically different to all the other students and may put them at an advantage (and also possibly lower the academic standards of the education provider). This would be unreasonable. Aural exams, the use of a scribe, extra time or the use of a computer are all reasonable adjustments than can be made.
There are many other reasonable adjustments that can be made. This can include (but aren’t limited to) the following: -
- Providing course information in another format (e.g. Braile, large print, audio tape)
- Making course materials available in other formats
- Allowing the use of a “helper” in a library, someone to find, collect and carry books.
What can I do if I feel I’m being discriminated against?
First of all, try and ask the education provider why they are refusing to make the reasonable adjustment. They are allowed to defend themselves on the following grounds: -
- Health and safety
- Inability of the disabled person to contract
- That any change fundamentally alters the nature of the service.
If you expect any reasonable adjustments to be made it’s best to inform the education provider as far in advance as possible. If they refuse, and you aren’t satisfied with their defence, then try and contact the service provider in writing if possible. Explain detailing your complaint and, in particular, why their failure to make adjustments makes it impossible or unreasonably difficult for you to use their service.
If you still haven’t reached a satisfactory conclusion then, as a last resort, you can take them to the county court (providing it’s within six months since the discrimination first took place). However, before doing this, try and get some professional advice. You can try and contact the Equality and Human Rights Commission. This is the group that has taken over from the Disability Rights Commission. However, the Disability Rights Commission still has an archived website: -
The Equality and Human Rights Commission have a Disability commission; they can be contacted for further advice