4 This section includes an overview of what the law says about supporting disabled students. Guidance on equality law can be found in the following Equality and Human Rights Commission publications:
- The Equality Act 2010 Technical Guidance on Further and Higher Education (The Equality Act 2010 technical guidance)
- What equality law means for you as a student in further or higher education
- What equality law means for you as an education provider – further and higher education.
5 The Equality Act 2010 defines the following as “protected characteristics”: Age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
6 The Equality Act 2010 technical guidance states:
“A person has a disability if he has a physical or mental impairment, which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”
“Anyone who has HIV, cancer or multiple sclerosis is automatically treated as disabled under the Act.”
“Where a person has a progressive condition he will be covered by the Act from the moment the condition leads to an impairment which has some effect on ability to carry out normal day-to-day activities, even though not a substantial effect, if that impairment might well have a substantial adverse effect on such ability in the future.”
“There is no need for a person to establish a medically diagnosed cause for their impairment. What it is important to consider is the effect of the impairment not the cause.”
“A substantial adverse effect is something which is more than a minor or trivial effect. The requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people.”
7 The Equality Act 2010 prohibits discrimination, harassment and victimisation on the basis of any of the protected characteristics, including disability. Discrimination includes:
7.1 direct discrimination – treating a disabled student less favourably than other students.
7.2 discrimination arising from disability – treating a disabled student unfavourably because of something arising in consequence of their disability, unless the treatment is a proportionate means of achieving a legitimate aim.
7.3 indirect discrimination – applying to a disabled student a “provision, criterion or practice” which puts that student at a particular disadvantage when compared with students who do not have the disability, and the provider cannot show it to be a proportionate means of achieving a legitimate aim.
7.4 Failure to provide a reasonable adjustment:
7.4.1 Where a provision, criterion or practice is putting a student with a disability at a substantial disadvantage compared to other students, providers must take such steps as it is reasonable to have to take to avoid that disadvantage. Examples of a provision, criterion or practice are: “any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions.”
(Equality Act 2010 technical guidance)
7.4.2 Where a physical feature is putting a student with a disability at a substantial disadvantage compared to other students, providers must take such steps as it is reasonable to have to take to avoid that disadvantage. Examples of a physical feature are:
- “any feature arising from the design or construction of a building
- any feature of any approach to, exit from, or access to a building
- any fixtures, fittings, furnishings, furniture, equipment or other moveable property in or on premises, and
- any other physical element or quality.”
(Equality Act 2010 technical guidance)
7.4.3 Where a disabled student would, but for the provision of an “auxiliary aid”, be put at a substantial disadvantage compared to other students, providers must take such steps as it is reasonable to have to take to provide the auxiliary aid. Examples of an auxiliary aid are:
- “a piece of equipment
- the provision of a sign language interpreter, lip-speaker or deafblind communicator
- extra staff assistance for disabled students
- an electronic or manual notetaking service
- induction loop or infrared broadcast system
- audio-visual fire alarms
- readers for people with visual impairments, and
- assistance with guiding.” (Equality Act 2010 technical guidance)
8 The Equality Act 2010 does not require providers to make reasonable adjustments to a provision, criterion or practice that is defined as a competence standard. However, providers must consider if a reasonable adjustment could be made to the way the standard is implemented or assessed. A provider will be committing unlawful discrimination if it does not make a reasonable adjustment to the implementation or assessment of a competence standard to enable a disabled student to show that they have trained the standard.
9 The Public Sector Equality Duty applies to most higher education providers. This duty requires public authorities to have “due regard” to the need to: eliminate discrimination; promote equality; and foster good relations between groups defined by reference to a “protected characteristic”.
CASE STUDY 1:
Is it discrimination?
A provider refuses a disabled student a place on a ballet course because he failed the audition for a reason related to his physical impairment.
- This does not amount to direct discrimination because anyone who failed the audition would be refused a place on the course.
- The decision may be “less favourable treatment for a reason related to the student’s disability”. However, the provider can justify it if the same criteria are applied to all applicants, and if the criteria are a proportionate method of demonstrating a person’s ability to fulfil the course requirements. If the provider has not considered whether the criteria are proportionate to the course and it turns out that the criteria are more stringent than the course demands, it is unlikely that it would be able to justify the less favourable treatment.
- If the provider has decided that it is a competence standard that students must be able to execute certain movements, and that they need to demonstrate their ability to do those movements before admission, then the provider would not be obliged to make any adjustments to that requirement.