W:
www.universitybusiness.co.uk | T: @UB_UK Read more fi nance and legal advice click here A provision criteria or practice puts
a disabled student at a substantial disadvantage in comparison with non- disabled students; Where a physical feature of the
building or premises puts disabled persons at a substanial disadvantage; or A disabled student would be at a
substantial disadvantage in comparison with non-disabled students unless an auxiliary aid is provided. A provision, criteria or practice is not defi ned in the Act but should be construed widely to include formal or informal policies, rules, practices, arrangements, criteria, procedures, activities or provisions. One-off decisions and actions are also caught. There is no requirement under the
legislation to identify a comparator, rather the disadvantage caused by lack of a reasonable adjustment is measured by comparison with what the position would be if the student in question did not have the disability. A reasonable adjustment may include
the provision of an auxiliary aid or service and is anything which provides additional support or assistance to a disabled student, including but not limited to equipment, extra staff assistance, video phones etc. Section 20 (7) of the Equality Act
2010 makes it unlawful to require any payment or make any charge for making a 'reasonable adjustment' in any circumstances. The determination of
in accordance with the Equality Act duties there appears to be a failure to acknowledge the true interpretation and defi nition found in the Equality Act; in that 'disability' is something more than a mild learning diffi culty.
A student has a disability if: (a) the student has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse eff ect on the student's ability to carry out normal day-to-day activities.
'Long term' has been determined to mean that the condition is likely to last longer than 12 months. Schedule 13 of the Act deals with
reasonable adjustments. HEIs have a duty to make reasonable adjustments for disabled students if:
reasonableness is a process which applies to each individual situation and what constitutes a 'reasonable adjustment' will change in the context of each HEI, and each individual situation and circumstance taking into account factors such as:
Would a step overcome the substantial disadvantage? Practicability of the adjustment. The type of education or other benefi t, facility or service being provided. Financial and other costs of making the adjustment . The availability of grants, loans and other assistance to disabled students The extent to which aids
and services will otherwise be provided to disabled people or students. The resources of the education provider and availability of fi nancial or other assistance. The eff ect of the disability on the individual. Health and Safety requirements. The interests of other people, including other students.
In making reasonable adjustments HEIs should be mindful of the fact that the duty only applies to those who fall within the defi nition of 'disability' and thus for those students with mild diffi culties, who have historically enjoyed the benefi t of DSAs there must be a real possibility that HEIs will not be required to make provision for them, in the same way pupils at school may have identifi ed 'special educational needs' but do not fall within the legal defi nition of 'disability'. It is interesting to note that during
recent debates on the Children and Families Act 2014, MPs and peers were given repeated assurances that there was no need to bring HEIs into scope of the new birth-25 SEN framework due to the comprehensive support provided through DSA. Now, two months later signifi cant changes are being proposed to a system that was described as working very successfully.
Tracey
Eldridge- Hinmers
What is the likely impact of these proposed changes? If the proposals are implemented in the way set out in the Ministerial statement of 7 April, this
will almost certainly lead to an increase in, not just the amount of fi nancial and human resource required of HEIs as they make decisions as to whether additional support and services should be made by way of 'reasonable adjustments', but also an increase in the number of complaints and referrals to the Offi ce of the Independent Adjudicator
(OIA) as disabled students challenge such decisions. All HEIs should be concerned to see the draft regulations and guidance as soon as they become available. UB
Tracey Eldridge-Hinmers is a senior associate at leading education law fi rm Veale Wasbrough Vizards. Tracey can be contacted on 020 7665 0802 or at
teldridge-hinmers@vwv.co.uk.
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