Q:
Is it possible to convince a University to agree a remedy for lack of disability support which is outside their standard published remedies?
Appeal has been upheld but their only suggested remedy is to resit the modules (from the last academic year - 2nd year) in the next academic year. The modules were passed but not at sufficient level to continue on integrated masters course so has dropped down to Bachelors (by a few percent). They will only re-instate to Masters if she passes the 2nd year modules at sufficient academic grade, but student is currently in final year of Bachelors and due to graduate before the exams take place! We are arguing that the failure to meet threshold is due to lack of disability support and provision and that if she passes 3rd year modules at sufficient level, this should indicate ability to continue.
Not sure how to argue this when response is "computer says no". Currently awaiting investigation of formal complaint.
A: SenseCheck
- 1 Yes
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- 22 Nov 2024
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Yes
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Yes, it could be possible to convince a university to accept an alternative remedy, but this depends on their flexibility and how effectively the case is presented.
Your question is very fact specific but given the circumstances you have outlined, I understand why you have raised this matter. However, we are unable to provide legal advice through this website.
Generally
If the individual in question believes they have been subject to disability discrimination in higher education – which appears to be the case based on your description – they may wish to consider the following options:
a) Taking legal action in the County Court. It is strongly recommended that they seek assistance from a law firm specialising in this area. Please note that strict time limits apply. Failure to comply with these could render any potential claim impossible to pursue in this jurisdiction. Legal aid or legal assistance may be available, and eligibility can be determined by contacting the CLS on 0345 345 4 345:
https://www.gov.uk/civil-legal-advice
b) When any complaint proceedings have completed, raising the matter with the Office of the Independent Adjudicator (OIA). Their website can be found here:
This website outlines the procedure to follow and the powers of the OIA. Additionally, this process does not incur any costs, although strict time limits apply.
Complaint within the University
Moving on, and despite the points above, it appears this individual is still in communication with the university. Therefore, they may raise any reasonable remedy. However, it is strongly advised that they support their claims with evidence and identify any breaches of the Equality Act 2010 ('the Act') they believe have occurred, along with the resulting detrimental effects. In my opinion, this is crucial.
It is important to emphasise that the aim is to place the individual in the position they would have been in had the alleged discrimination not taken place. Therefore, it is clear that a general approach to remedy by a university may not be effective.
As I am sure you know the Equality Act 2010 is a key piece of legislation in the UK that protects individuals from discrimination based on certain characteristics, including disability. Understanding the various forms of discrimination is essential, especially in educational settings like universities.
Definition of Disability
Under s6 the Equality Act 2010, disability is defined as a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. To be entitled to the protections offered by the Act, a person must prove that their difficulties meet this legal definition of disability. Meeting this definition is sometimes referred to as ‘having a statutory disability’.
The only exception to this requirement is for individuals with a "deemed disability," where certain conditions are automatically considered as disabilities. For example, individuals with HIV, cancer, or multiple sclerosis are considered to have a disability from the point of diagnosis, regardless of the severity or impact of the condition.
It is also important to note that some conditions are excluded from the definition of disability under the Act. Examples of these include certain types of substance misuse or antisocial personality disorders. However, if someone has an excluded condition, it must still be considered in the context of any underlying conditions or disorders that may not be excluded and could qualify them for protection under the Act.
It is essential to assess each case carefully, taking into account the full range of conditions and their effects on the individual’s day-to-day life which includes university study.
Knowledge of Disability
In the context of universities, understanding the distinction between actual and constructive knowledge of a student's statutory disability is crucial.
Actual Knowledge: This occurs when a university is directly informed by the student about their disability. For instance, if a student discloses their condition to a tutor or through official channels, the university has actual knowledge.
Constructive Knowledge: This arises when a university could reasonably be expected to know about a student's disability, even if the student has not disclosed it. For example, if a student consistently struggles with coursework and exhibits behaviours indicative of a disability, the university might be deemed to have constructive knowledge. However, the threshold for constructive knowledge is high; the university must have sufficient information to reasonably infer the disability.
It is important to note that universities are not automatically aware of all disabilities. Many conditions are not visible, and without disclosure, the institution may not be aware of a student's needs. Therefore, if a student believes they are disabled, it is strongly advisable to formally inform the university of the existence of the protected characteristic of disability and the associated difficulties or impairments. This enables the institution to provide appropriate support and make necessary adjustments to facilitate the student's academic success.
In summary, while universities have a duty to support disabled students, this duty is only triggered by actual or constructive knowledge of the disability. Proactive disclosure by students better ensures they receive the support they are entitled to under the Equality Act 2010.
Disability Discrimination
Below is an overview of six types of discrimination identified in the Equality Act 2010, each illustrated with a hypothetical example involving a university student.
a) Failure to Make Reasonable Adjustments
Educational institutions are required to take reasonable steps to ensure the disadvantage a disabled student experiences as a result of the effects of their disability is avoided, ensuring they are not at a disadvantage compared to their non-disabled peers. It follows that the steps taken must be specific to the student and working from a pre-agreed list of adjustments may well not work.
Example: Sean, a university student with dyslexia, requests extra time for her exams. The university fails to provide this adjustment, resulting in her performance being unfairly affected.
b) Direct Discrimination
This occurs when a disabled person is treated less favourably than someone without a disability in a similar situation.
Example: Liam, who uses a wheelchair, applies for a university course. Despite meeting all the entry requirements, his application is rejected solely because of his disability, while a non-disabled applicant with similar qualifications is accepted.
c) Indirect Discrimination
Indirect discrimination happens when a policy or practice applies to everyone but disadvantages disabled individuals.
Example: The university has a policy requiring all students to attend lectures in person on the 5th floor of a building with no lift. This policy disadvantages students with mobility impairments who cannot attend physically, without offering alternative arrangements.
d) Victimisation
Victimisation involves treating someone unfairly because they have made a complaint (or it believes they will do) or supported someone else in making a complaint under the Act.
Example: After filing a complaint about inaccessible facilities, Saoirse, a disabled student, is excluded from group projects and receives lower marks, indicating retaliation for her complaint.
e) Harassment
Harassment is unwanted conduct related to a disability that violates a person's dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.
Example: Siobhan, who is deaf, is repeatedly mocked by her university classmates for using sign language, creating a hostile and offensive environment for her.
f) Discrimination arising from disability
Section 15 the Equality Act 2010 addresses "discrimination arising from disability." This provision makes it unlawful to treat a disabled person unfavourably because of something arising in consequence of their disability. However, such treatment is not considered discrimination if it can be shown to be a proportionate means of achieving a legitimate aim.
Application in a University Context
Consider a female student at a university who suffers from depression. Due to her condition, she frequently misses lectures and assignment deadlines. If the university penalises her for these absences without considering her disability, this could constitute discrimination arising from disability.
Justification of Discriminatory Treatment
The university may justify such treatment if it can demonstrate that the actions taken were a proportionate means of achieving a legitimate aim. For instance, if the university has a policy requiring students to attend a minimum number of lectures to pass a course, and this policy is applied equally to all students, it may be justified. The university would need to show that the policy is necessary to maintain academic standards and that no less discriminatory alternative exists.
Circumstances for Justification
- Justification is more likely if the university can prove that:
- The policy or action serves a legitimate aim, such as ensuring students acquire essential knowledge and skills.
- The means of achieving this aim are proportionate, meaning the benefits outweigh the disadvantages to the student.
- No less discriminatory alternative is available.
In this scenario, the university would need to balance the need to uphold academic standards with the duty to make reasonable adjustments for students with disabilities. If the university fails to consider reasonable adjustments or applies policies rigidly without regard to individual circumstances, it may be found to have discriminated against the student.
A university may struggle to meet the justification criteria if they have failed to make the required reasonable adjustments for the student (see above).
These examples highlight the importance of understanding and addressing different forms of discrimination to ensure an inclusive and supportive environment for all students.
The following technical guidance from the EHCR will provide more detail: Technical guidance on further and higher education
I trust this information is helpful but to summarise:
a) The individual must clearly identify the difficulties they are experiencing or have experienced.
b) These difficulties should be linked to the effects of their disability. This is key to establishing that the person’s disability and its effects are a significant contributing factor.
c) The person must then demonstrate how these difficulties arose and identify any breaches of the Equality Act 2010. This includes understanding how the disability may have led to discrimination, whether intentional or not.
d) Finally, they should propose potential remedies. These remedies should aim to put the individual in the same position they would have been in had the discrimination not occurred, addressing any harm caused by any alleged discriminatory acts.
As stated previously, it is not possible to provide specific legal. Having said that, if you have any additional general questions, please do not hesitate to raise them in another question.
Sean Kennedy.
Sean Kennedy
Talem Law
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