Update | Education: disability discrimination at university

Salima Mawji considers the rising trend of disability discrimination at university

The Equality Act 2010 ("the Act") places a duty on universities to ensure that they do not discriminate against students who have a disability. Section 91(2) of the Act stipulates that the responsible body of a university must not discriminate against a student by subjecting them to any detriment; section 91(3) states that it must not discriminate against a disabled person in the arrangements it makes for deciding upon who to confer a qualification.

When applying for a place at university, students are invited to declare on their UCAS forms as to whether they have a disability. The more obvious disabilities are diagnoses that the student may have had while at school, and include dyslexia, dyspraxia, dyscalculia, etc. However, some students may have suffered historically from depression but they do not see this as an obvious disability that would get caught by the Act. By declaring a disability on the UCAS form, the student is triggering the internal mechanism at the university which will entail an invitation from the disability support unit to assess the student and to determine what reasonable adjustments might be required to assist that student, and to ensure that that student is not disadvantaged compared to a student who does not have the disability.

Once the reasonable adjustments are determined, those must be communicated to the relevant department or faculty so that tutors are aware of the necessary adjustments that need to be made to ?assist the student. The assessment from ?the disability services unit will also trigger the student's right to claim disabled student allowance.

This allowance will pave the way for financial assistance in obtaining relevant software or hardware required by the student to enable them to ?study effectively.

Anticipatory duty

As practitioners in this area, we have seen a significant rise in disability discrimination claims against universities. It appears that there are two main areas that universities appear to be falling foul of the law. The first is where reasonable adjustments are required, but those reasonable adjustments are not being properly conveyed to the department or faculty.

The disability services unit is aware ?of the reasonable adjustments required, ?but because this is not being properly filtered, students run into problems with tutors, lecturers or professors who refuse to provide, for example, handouts in advance of a tutorial because they are unaware of the reasonable adjustments required.

The second is where, under the Act, it is apparent that universities have an anticipatory duty if they believe that a student has a disability. They must, where this duty arises, refer the student to the relevant support network within the university to enable the student to be properly assessed.

This, in turn, enables the university to become clear about whether or not there is a disability, and if so, what reasonable adjustments need to be made.

One clear example of this, which appears time and time again with students, is the diagnosis of depression. Many individuals within the university setting do not appreciate the fact that depression can be a disability. A student may complain to a tutor about feeling depressed; not having the inclination to do anything; may disappear for a while and not respond to communication from the university; may miss exams for no apparent reason.

The university should ensure that the student is 'pointed in the right direction' This effectively means that students should be referred to the counselling service at the university, or indeed to disability support so that the correct assessment can be undertaken and decisions made on any reasonable adjustments. It is then for the student to follow that through with the relevant body.

Over the last year we have also seen a marked increase in students who have failed exams, obtained an expert report diagnosing dyslexia and then submitted that report as part of the appeal procedures, but 'out of time'.

Most appeal procedures at universities will allow for circumstances to be made known to the board of examiners that could not have been made known before the submission of the assessment or the sitting of the exam.

A student with a diagnosis of dyslexia after the assessment or examination technically could not have told the university prior to the submission of the assessment or the sitting of the exam. However, those applications for extenuating circumstances (made under ?the appeal process) are being rejected as out of time as the student should have brought it to the attention of the university earlier. This, in my view, is an act of discrimination in itself.

Surely, one of the reasonable ?adjustments required within the ?mitigating circumstances procedures ?is to allow for proper scrutiny of the affect of the disability on the work in question, rather than to dismiss the diagnosis as being out of time. This argument is currently being run within university appeal procedures.

If a student is not successful in the appeal procedures when arguing a disability diagnosed after the examination or submission of coursework, then the student will eventually have the right to pursue matters to the Office of the Independent Adjudicator for Higher Education (OIA).

However, in R (Maxwell) v The Office of the Independent Adjudicator for Higher Education [2012] ELR 538, CA, the Court of Appeal determined that although the OIA has the jurisdiction to consider disability and the impact of that disability within a student's academic life at university, the OIA is not obliged to make any finding of disability discrimination.

This leaves the student with the option ?of pursuing matters through the county court for breach of the Act.

However, with the legal aid structure having been so radically changed, students are finding it increasingly difficult to seek out funding to pursue, sometimes, ?very meritorious claims.

Privately paying litigation in this ?area of the law is expensive. Legal ?expenses insurance policies will only ?cover breach of contract claims against ?a university. Students are therefore left in an untenable position and sometimes without access to justice.

Breach of contract

The Court of Appeal in Clark v University of Lincolnshire and Humberside [2000] 3 All ER 752 CA, confirmed that the legal relationship between a student and a university is a hybrid one - and matters can therefore be challenged in the Administrative Court for breach of public law grounds; and in the county/high court for breach of contract.

A university that sets out in its regulations the assistance given to disabled students is potentially creating a contractual right to access to reasonable adjustments for disabled students. As Clark (supra) states, the rules, regulations, procedures, handbooks of the university form part of the express contractual terms between the student and the university.

Therefore, a failure to make reasonable adjustments that might be promised in regulations to students could also amount to a breach of contract. If that is the case then students can challenge (at least in theory as this has not been tested in the courts) an act of disability discrimination as a breach of contract.

This argument has currently been raised in a number of cases that are currently being litigated, but so far there have been no findings by judges as these cases tend ?to settle.

Overall, the rising trend in disability discrimination cases at universities is worrying to say the least. In recent months we have experienced shifts in university practices when dealing with disabled students, but the main issues faced by students seem to arise from the failure of disability services or the department to properly communicate the reasonable adjustments required to enable a disabled student to have the best possible chance ?of success.