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• 30 Apr 2025

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No. There is quite a little to summarise here, so I have been as succinct as reasonably possible. Please note that this is guidance and not legal advice. 

 

Key points in a nutshell

• Failing to follow agreed exam-access arrangements is likely to be unlawful disability discrimination under the Equality Act 2010. (Equality Act 2010 Technical Guidance on Further and Higher Education)
• The Office of the Independent Adjudicator (OIA) expects providers to look at all the consequences of the mistake and to give a remedy that properly removes the disadvantage – not simply an uncapped resit. (When things go wrong - OIAHE, Disability and requests for additional consideration - OIAHE)
• OIA casework shows that where the impact is serious (for example, on a final-degree classification or on a transfer opportunity) the OIA normally recommends extra measures such as reassessing marks, reconsidering classifications, financial compensation and written assurances that the problem will not recur. (Student transfer - CS122408 - OIAHE, Disability - CS052207 - OIAHE)
• In the Bristol v Abrahart High Court decision the university’s failure to adjust an anxiety-provoking assessment method was held to be discrimination, reinforcing that assessment method as well as conditions must be revisited where disability makes the original format unsuitable. (Bristol University loses appeal over suicide of disabled student on exam day | University of Bristol | The Guardian)

 

1. The legal and regulatory framework

Provision

Why it matters here

Equality Act 2010, ss.20-21 – duty to make reasonable adjustments

The duty is anticipatory and cannot be justified away; a failure is unlawful in itself. (Equality Act 2010 Technical Guidance on Further and Higher Education)

EHRC Technical Guidance (FE & HE)

Confirms that assessment processes must be adjusted where the competence standard itself is not at stake. (Equality Act 2010 Technical Guidance on Further and Higher Education)

OIA Good Practice Framework – Supporting Disabled Students (“When things go wrong”)

Para 68 notes that providers should ask how the shortfall affected progress and “may need to permit a further attempt, reconsider marks or provide another suitable remedy”. (When things go wrong - OIAHE)

Practical implication

The law’s aim is to put the student in the position they would have been in had the adjustment been made. An offer that merely lets the student sit the same style of exam again – with no assurance that the arrangements will work next time – seldom achieves that.

 

2. What the OIA treats as an adequate remedy

 

CS122408 (Dec 2024) (Student transfer - CS122408 - OIAHE)

Adjustments missing; student missed a transfer deadline

£2 k partial fee refund, £2.5 k distress payment, formal apology, procedural change – resit alone was not enough.

CS052207 (May 2022) (Disability - CS052207 - OIAHE)

Support delayed; degree fell from 2:1 to 2:2

Institution told to re-open grade profile which led to award of a 2:1.

Many other cases exist.

Providers expected to consider classification review, mark inflation, compensation and to explain how recurrence will be prevented. (When things go wrong - OIAHE)

Reading those decisions together

The OIA consistently regards a “first-sit” resit as only the starting point. If grades already achieved will still drag down the overall classification, or the student’s disability makes further formal exams harmful, the OIA expects the provider to explore alternative assessments, mark recalculation or direct classification adjustment.

 

3. Why a bare resit offer may be  unlikely to be “reasonable” in your case

• Material disadvantage: The lower marks already sit in the mark-set that will feed into the final degree calculation. Unless the university confirms that those marks will be wholly discounted, the student is still worse off.
• Ongoing anxiety and loss of trust: A student with documented severe exam anxiety needs a remedy that removes that anxiety – not one that repeats it with no guarantee the adjustments will work next time.
• Precedent: OIA cases show that where a provider simply offers an uncapped resit but fails to give assurances or compensation, the complaint is usually upheld or partly upheld. (Student transfer - CS122408 - OIAHE, Disability - CS052207 - OIAHE)

 

4. Possible practical next steps for the student

1. Ask the university (in writing) to review the remedy in light of:
   • Equality Act duty and the EHRC guidance;
   • OIA Good Practice para 68;
   • The OIA case examples above.
     Request a remedy that includes
   • confirmation that any failed arrangements have been fixed and will be tested in advance;
   • removal or neutralisation of the original marks from degree classification calculations;
   • consideration of an alternative assessment method (e.g. take-home or supervised coursework) if exams trigger disability-related anxiety;
   • compensation for distress and procedural failure.
2. If the provider refuses or issues a Completion-of-Procedures letter, complain to the OIA within 12 months. The OIA can recommend academic or financial remedies beyond resits. Guidance on evidence and process is in the OIA’s Supporting Disabled Students and Handling Complaints frameworks. (When things go wrong - OIAHE, Disability and requests for additional consideration - OIAHE)
3. Parallel options
   • Engage the students’ union or an adviser experienced in disability law.
   • Consider an Equality Act claim in the County Court (time-limit: six months less one day from the act complained of). The Bristol/Abrahart case shows courts will award damages where assessment design or execution discriminates. (Bristol University loses appeal over suicide of disabled student on exam day | University of Bristol | The Guardian)

 

5. Broader lessons for providers

• Proactive checking – arrangements must be tested before each assessment period, especially for students whose needs can fluctuate.
• Joined-up record-keeping – disability-support teams, exams offices and departments should share the confirmed adjustment schedule.
• Transparent escalation routes for any on-the-day problems.

 

Bottom line

Offering a resit “as if for the first time” may form part of a remedy, but on its own it rarely satisfies the Equality Act duty or the OIA’s expectations – particularly where the student still faces substantial anxiety, the original failure has depressed existing marks, and there is a risk of the same error recurring. A fuller package (classification review, alternative assessment method, compensation and a written apology) is both common and reasonable in the circumstances.

 

I trust this is helpful and assists you move forward,

 

Sean Kennedy

 



Sean Kennedy

30 Apr 2025

This is helpful

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