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Jean-Yves Gilg

Editor, Solicitors Journal

Education update

Education update


Universities failing to provide for students with disabilities is a growing litigation minefield, warns Jamie Dixon

The relationship between universities and their students is one predominantly based in contract law: both parties abide by regulations and procedures. Alongside these obligations, universities are also subject to the provisions of the Equality Act 2010, which encases almost all the UK’s legislation relating
to discrimination, victimisation and harassment.

Accordingly, universities must not discriminate against their students on any prohibited grounds and they are obliged to put into place reasonable adjustments to assist those students who are identified as having specific learning needs
arising out of disabilities.

To qualify as having a disability in law, a
student would need to be formally diagnosed as having a condition (mental or physical) that has a substantial and long-term effect, i.e. lasting more than one year, on their day-to-day activities. It is worth noting that most universities will put into place necessary support for students whose difficulties are short term in any event.

The relationship between the university and the student in this area operates as follows: students are expected to keep the university
fully updated about any condition/suspected condition they may have while universities must respond by providing necessary and reasonable adjustments for the student as appropriate. Such adjustments will be identified by way of an assessment, although this is not always required.

Litigation increase

If a university fails to put into place adequate adjustments, it may face a claim in disability discrimination brought by the student. This area
in particular is a growing litigation minefield: the more people are paying for their education, the more they expect (and will take steps to enforce) an adequate service.

As the need to litigate is always best avoided, the key to a successful approach is:

  • identify any difficulties experienced and any adjustments required;
  • immediately disclose the same to the university;
  • accept and engage with any provision offered; and
  • notify the university of any issues in provision and keep a clear record of all of the above.

Early action

It is imperative that all students, whether they consider themselves to be disabled or not, have
a clear idea of what their needs are at university. They must also communicate these needs appropriately to the relevant persons at the university as soon as possible and, ideally, before starting their course. This will place a student in
the best possible position at the outset and will hopefully allow the university adequate time to put into place the necessary adjustments.

Failure by a student to identify issues, especially when given the opportunity to do so, and to notify the university of those issues can lead to difficulties later on.

Typically, at the outset of a degree, many students will be aware that they have a disability and this will often have been disclosed via the UCAS application system.

However, if this is not the case, or if fresh needs arise during a course of study, it is important to liaise with the university at the earliest opportunity to let them know what assistance is required and to be assessed as necessary.

Equally, commencing university is a good
time for a student who may have experienced previous difficulties in their education to take the opportunity to assess whether they may have a learning disability that has impacted on their work. This is often free of charge.

Universities are a good forum in which to establish this as they have dedicated disability services teams on hand to assist students who
feel that they may experience the symptoms of specific learning disabilities.

In the first instance, it is best to discuss issues directly with the disability services department
at a university (or as otherwise entitled).

Seek assistance

A surprisingly high number of students will
suffer in silence with their difficulties generally, rather than seek assistance. Therefore, it is especially important, once any difficulties or needs are identified, that they are disclosed to
the university as soon as possible.

This includes any disabilities and any suspected disabilities that a student may have. As above, failure to do so can lead to difficulties later on.

For example, take a student with dyslexia,
of which they are aware, who fails to advise
the university of this condition.

In these cases, the university will not usually
be considered on notice of the disability and accordingly will not be obliged to put into
place reasonable adjustments as appropriate. Consequently, that student is likely to be placed
at a disadvantage, which in many cases could
lead to academic failure.

If a student fails a module and all available resits for that module, their studies may be terminated. In these circumstances, it is extremely difficult to then raise an existing disability as an argument for reinstatement. The university
will invariably ask why this disability was not disclosed earlier and, without good reason (and often in cases where there is good reason), it would not be obliged to consider the disability
to constitute mitigating circumstances.

Universities will sometimes go as far as to
argue that a student who presents their
disability after the termination of their studies
as a result of academic failure should not be reinstated – even if they are not aware of the disability at the time they sat the examinations – purely because the university had previously offered them diagnostic testing for specific learning disabilities, for example, and the
student had declined this offer.

This position taken by the university has
been upheld by the Office of the Independent Adjudicator (OIA) previously. However, arguably,
it may in fact give rise to a claim in disability discrimination against the university.

Disclose details

Finally, take a student who did not know they were disabled and had received no prompts from the university as to a suspected disability. This student, should they fail and then identify their disability afterwards, would have a good chance of returning to their course of studies as the university would be obliged to consider this disability as a mitigating circumstance or face possible proceedings for disability discrimination. Again this position is confirmed by the OIA.

Disclosure is key, as is how you do so. It is imperative to ensure that any disclosure of
a disability or any difficulties is made and/or confirmed in writing and that the student ensures that they follow up the disclosure as necessary.

Equally, universities must act on any indication by a student that they are experiencing difficulties. In law, they have an anticipatory duty to act on any suspected disabilities.

Should the university fail to act on such a notification, and a student is subsequently diagnosed with a disability, this may lead to a discrimination claim against them and any decision not to reinstate a student who had been terminated in these circumstances would be subject to challenge.

As such, even if the university does not act on a notification, the fact a student has sent it could very much work in their favour in the future.

Use support

As above, if the university identifies a student
as potentially having a disability and offer them testing, it is imperative that the student takes the opportunity of such testing. This will make the university aware of any condition(s) and provide the opportunity to put the correct adjustments into place as necessary.

Once needs are identified and adjustments put into place, it is important that students engage with the university as requested. If they are scheduled to use certain support, they should do so as far as is possible. If a student is to miss a session of technical support, for example, they should let the university know this and explain
why they cannot attend.

A student who fails to engage in this way and
to take the opportunities given to them will naturally disadvantage themselves academically but will also run the risk, should they experience academic failure, of being unable to raise any strong argument of mitigating circumstances.

Speak up

If a university failed to provide the necessary support, or is sporadic in providing the same, a student should put the university on notice of
their dissatisfaction with the position in writing
at the time it takes place.

It would be much harder to show retrospectively that the university has failed to provide reasonable adjustments necessary for a disability if there is
no record of the same in writing.

Putting the university on notice of issues
about provision will put them in a position
where they should take the appropriate steps to remedy the same. A failure to do so on their part would likely give rise to a course of action in disability discrimination. SJ

Jamie Dixon is a trainee solicitor at Match Solicitors