DDA Amendments in the Area of Education - Case Study Example

Running Head: DDA Amendments in Education DDA Amendments in the area of Education: ‘Positive duties are required to make reasonable adjustments’ Name: Class: University: DDA Amendments in the area of Education: ‘Positive duties are required to make reasonable adjustments’ Introduction The intention in this paper is to discuss the nature and content of the provisions of the DDA 1995 and the amendments thereafter, particularly as they apply to the realm of education. The Disability Discrimination Act 1995 (DDA 1995) makes it unlawful to discriminate against people with disabilities in relation to employment, the provision of goods and services, education and transport. Evidently the intention of the legislation has been to disallow discrimination and harassment of disabled people; ensure that ‘reasonable adjustments’ are put in place for the disabled, and ensure full and equal participation in learning and public life. In order to put ‘reasonable adjustments’ in place, a positive assessment of the nature of the disability in question and a ‘positive action’ to address the disability through ‘reasonable adjustments’ are required. Making the required ‘reasonable adjustments’ is a ‘positive action’. Before a detailed discussion of the provisions in the law regarding education and making reasonable adjustments in that field is taken up, it is proposed to elucidate the scope of the various provisions of the DDA 1995 and their application to the different sectors in the public domain. An Overview of the Disability Discrimination Act 1995 The DDA has different parts which specify the duties that organizations have to discharge towards disabled persons. Part 1 of the Act defines a disabled person as someone ‘with a physical or mental impairment, which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities’. A ‘substantial’ effect is defined as one that is ‘more than trivial’. “Normal day to day activities” include mobility, dexterity, co-ordination, hearing, seeing, memory, concentration, perception of the risk of physical danger.  Impairment of these activities may occur due to physical disabilities, mental-health difficulties such as depression, learning difficulties such as dyslexia, health conditions related to Alzheimer’s, HIV, epilepsy, arthritis and cancer. ‘Long-term’ is defined as having lasted, or being expected to last, for at least 12 months. Part 2 of the Act prohibits discrimination in employment and covers all employers, trade organisations, trade unions, and by amendments in 2004, also bodies such as General Medical Council and from September 2007 Education Qualification Bodies (GCSEs and A levels). These organisations, like employers, are prohibited from discriminating against persons while deciding about admissions to a particular trade or qualification. In the area of employment discrimination prohibited by law include ‘direct discrimination, failure to make a reasonable adjustment, disability related discrimination, and victimisation’. The Act requires all employers to take steps from 1st October 2004 onwards to ensure that disabled people are not treated discriminately without justification. Any justification for discrimination must be material and substantial. Liz Sayce gives an example of ‘material and substantial’ discrimination: “This means that, for example, if someone with major concentration difficulties applied for a job as a signal operator or train driver, the employer could seek medical evidence in the form of a risk assessment about whether it would be safe for this particular person to undertake this particular role. If not, even after considering whether any ‘reasonable adjustments’ might make it possible, the employer would be ‘justified’ in refusing to appoint the person. The risk assessment needs to be made on the basis of the particular facts, i.e. it must look at the individual concerned [not the blanket diagnosis or assumptions about that diagnosis] and the role in question” (Sayce and Boardman, 2003). “Justification is not relevant in cases about direct discrimination and failure to make reasonable adjustment. Practical work experience whether paid or unpaid is covered. Employers should make reasonable adjustments to physical features or employment arrangements which create a substantial disadvantage for disabled employees. An Employer cannot justify less favourable treatment of a disabled person for a reason related to the disability where the reason for the treatment can be minimised by a reasonable adjustment” (WBC, 1995). Part 3 of the Act deals with protection from discrimination in the provision of goods, services and facilities. It is unlawful for providers of any services to treat someone ‘less favourably’ because of the person’s disability, unless this is ‘justified’ under the provisions of the Act. It is also unlawful according to the Act not to make ‘reasonable adjustments’ to enable a disabled person to use services, again unless this is ‘justified’. Reasonable adjustments relate to changes to polices, practices and procedures, provision of auxiliary aids and services, overcoming a physical feature, making the service accessible by another means (WBC, 1995). All categories of service providers, public, private and voluntary-sector providers are covered by the Act. Part 4 of the Act prohibits discrimination against disabled people in education. This includes early years, primary and secondary schooling, colleges, universities and life-long learning. It covers all aspects of the education process and states that disabled persons cannot, without justification, be discriminated against or receive less favourable treatment for a reason related to their disability and that educational institutions must make ‘reasonable adjustments’. Part 4 came into force only in September 2002 from which time there are new duties in the provision of post-16 education and related services for disabled people and students. “The Post 16 section of the Act makes it unlawful for a responsible body to discriminate against a disabled person: In admissions or enrolment of students; In the terms on which admissions or enrolment offers are made; By refusing or deliberately omitting to accept an application for admission or enrolment; In the provision of services provided wholly or mainly for students or those enrolled on courses. This includes provision such as courses of education, training, recreation, leisure and catering facilities or accommodation. Discrimination occurs when a responsible body treats a disabled person less favourably for a reason relating to the persons disability or when a responsible body fails to make reasonable adjustments when a disabled student is placed at substantial disadvantage”(WBC, 1995). Duty to make ‘reasonable adjustments’ The core of the DDA 1995 is concerned with removing ‘less favourable treatment for a reason related to a disabled person's disability; and failure to make a "reasonable adjustment". The duty to make reasonable adjustments in education and in providing services requires positive steps to be taken. The Act does not define what is ‘reasonable’ and has left the matter to the courts, if necessary. However, information to evaluate whether a particular adjustment is reasonable may be found in the Disability Rights Commission's Codes of Practice. The factors that may be taken into account in this regard include ‘whether the proposed adjustment would meet the needs of the disabled person; whether the adjustment is affordable; whether the adjustment would have a serious effect on other people’ It would seem that the Act requires organizations to anticipate the requirements of disabled people and make ‘adjustments’, rather than wait for a disabled person make a request for any ‘adjustment’ to be made. Adjustments that are put in place must be made known to the disabled people and failure to do so may be as if no adjustments have been made at all. Duty to make adjustments for disabled people is a general duty whether or not the employer knows that a particular person is disabled or not. However educational institutions are expected to know that someone is disabled in order to make the particular adjustment to suit that person. Disability Equality Duty The Disability Discrimination Act amended in 2005 specifies ‘general’ and ‘specific’ duties to promote disability equality. The Disability Equality Duty came into force from December 2006 onwards. “Its general aim is to ensure and promote disability equality in all public sector bodies and eliminate systemic discrimination, and ensuring that public authorities incorporate disability equality into everything that they do. Section 49A of the Act says that any organisation in carrying out its functions, have to pay due regard to promoting equality of opportunity between disabled people and other people; eliminating discrimination which is unlawful under the Act; eliminating harassment of disabled people that is related to their disabilities; promoting positive attitudes towards disabled people; encouraging participation by disabled people in public life; taking steps to take account of disabled people’s disabilities even where this involves treating disabled people more favourably than other people. Under the specific duties most public authorities have to produce a Disability Equality Scheme. The Scheme helps to meet the general duties mentioned above” (Disability Equality Duty, ). “The general duty applies to all public authorities, including government departments and executive agencies, ministers, local authorities, governing bodies of colleges, universities and schools, governing bodies of schools, NHS trusts and boards, police and fire authorities, the Crown Prosecution Service and the Crown Office, inspection and audit bodies, certain publicly funded museums, and those private organisations which may carry out some public functions (but only in so far as those functions are concerned). The specific duties apply only to those authorities which are listed in the regulations” (DDA chronology, 2006). Organisations, when they draw up a Disability Equality Scheme, are required to involve disabled people in its formulation. They are expected to disclose their arrangements for collecting and using information and their method of impact assessments. Further, they have to formulate an action plan, produce an annual report on the progress made and ‘review and revise’ the Scheme every three years. Application of DDA to Education a). DDA and Pre-16 Education. As mentioned above, Part 4 of the DDA prohibits discrimination against disabled people in education. From September 2002, all schools have legal duties under the DDA 1995 (as amended by the Special Educational Needs and Disability Act 2001) not to discriminate against disabled pupils and disabled prospective pupils. These new duties are to be taken into account along with the Special Educational Needs Framework in planning duties for schools and Local Education Authorities (LEAs). For this purpose the Disability Rights Commission has brought out a Code of Practice, which explains the law (DDA and pre-16 education, 2002). Even though the code is not ‘legally binding and enforceable, tribunals have to take it into account wherever it is relevant. The matter explained in this section is largely paraphrased from the Code of Practice. “The Act covers anyone who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. All schools are covered by the Act. The “responsible body” for a school is ultimately liable and as such is responsible for the actions of all employees and any agents. “Duties specified in the DDA are to fit with duties mentioned under the Special Educational Needs (SEN) framework which are based on the definition of SEN in 312 of the Education Act 1996 that a ‘child has special educational needs if he or she has a learning difficulty that calls for special educational provision. A child has a learning difficulty if he or she has a significantly greater difficulty in learning than the majority of children of the same age; or has a disability which prevents or hinders the child from making use of educational facilities of a kind generally provided for children of the same age in schools within the area of the LEA; is under five and falls within the definition of SEN above. Special education provision: a) for a child of two or over means, educational provision which is additional to, or otherwise different from, the educational provision made generally for children of the child’s age in maintained schools in the area and, b) for a child under two, educational provision of any kind. Schools are advised to take reasonable steps to find out whether pupils or prospective pupils have a disability in order to ensure that disabled pupils are not discriminated against. With the implementation of DDA from September 2002, it has been unlawful for schools to discriminate in admissions; education and associated services; and ‘exclusions’, that is excluding him or her from the school, either temporarily or permanently. Discrimination against a disabled pupil or prospective pupil can occur in two ways, by less favourable treatment and/or by failing to make a “reasonable adjustment”. An example of ‘less favourable’ treatment is when a primary school tells a partially sighted child that she cannot go on a school trip because she is blind or partially sighted. This may be unlawful” (DDA and pre-16 education, 2002). An example of a positive action is found in the following: “To support and help the pupils who find it difficult to stand in a queue for reasons related to their disability, the school has put in place a priority card system. These pupils are given a green card which allows them to go to the front of the queue and get their food first. Reasonable adjustment is explained in the next section” (Disability Equality Duty, 2002). b) DDA and Post-16 Education The information on this section is paraphrased from the Code of Practice for the Post-16 duties brought out by the Disability Rights Commission. “The Act covers institutions in the higher education sector and institutions in the further education sector. Under the Act it unlawful for a responsible body to discriminate against a disabled person in admissions or enrolments of students in the terms on which admissions or enrolment offers are made or by refusing or deliberately omitting to accept an application for admission or enrolment; or in the provision of services provided wholly or mainly for students or those enrolled on courses such as courses of education, training, recreation, leisure and catering facilities or accommodation. Discrimination consists of ‘less favourable treatment’ and ‘failure to make reasonable adjustments’. Some examples of less favourable treatment: In admissions: An adult education centre has an enrolment evening. The staff member registering students instructs a blind enquirer to wait to be called until someone can help him with his form, rather than registering him immediately. The enquirer is not called and, by the time he himself approaches the desk, the course he wants to join is full and he is told it is too late to enrol. This is likely to be unlawful. In exclusions: A student who develops a sight problem is excluded from college because staff fears that he will not be able to cope with the course, without any evidence to substantiate this fear and no attempt being made to address this issue with him. This is likely to be unlawful. In the provision of services: A student who is registered severely sight impaired (blind) is told that she cannot train on the college sports track because of this, although other students are allowed to train there. This is likely to be unlawful. Knowledge of the person’s disability is presumed when ‘a responsible body’ is found to discriminate against someone by treating him or her less favourably because of a disability. “Less favourable treatment may be justified only if one of the following conditions is fulfilled: it is necessary to maintain academic standards; it is necessary to maintain other prescribed standards; it is of a prescribed type; it occurs in prescribed circumstances; the reasons are both material to the circumstances of the particular case and substantial. The main requirement to make reasonable adjustments has been in force since 1st September 2002, while adjustments relating to supplementary aids and services were required from 1st September 2003. These are discussed in the next section. “There are separate provisions which govern "qualifications bodies", that is any authority or body which can confer a professional or trade qualification, other than a responsible body or local education authority. The term "professional or trade qualification" means an authorisation, qualification, recognition, registration, enrolment, approval or certification which is needed for, or facilitates engagement in, a particular profession or trade. It might include enrolment with the Institute of Linguists, or the General Medical Council; the provision of a practising certificate by the Law Society, or being registered as a CORGI gas fitter. It is unlawful for a qualifications body to discriminate against a disabled person in the arrangements which it makes for deciding who it is going to award the professional or trade qualification; in the terms on which it is prepared to confer a professional or trade qualification on him; by refusing or deliberately omitting to grant any application by him for such a qualification; or by withdrawing such a qualification from him or varying the terms on which he holds it. It is also unlawful to subject a disabled person to harassment” (DDA - Education Post-16, 2007). Making reasonable adjustments for disabled pupils: requirements and principles Educational institutions are required to make ‘reasonable adjustments’ in order to address the disabilities of disabled people. Reasonable adjustments that are made will have to be in accordance with the statutory requirements when they are applicable to all disabled pupils. Usually they are ‘anticipatory’ in nature, help to prevent disabled pupils being placed at a substantial disadvantage, and enable them to participate in education and associated services. In deciding on the need for a reasonable adjustment to help disabled pupils, schools are expected to take into account the potential impact on disabled pupils in terms of “time and effort, inconvenience, indignity or discomfort, loss of opportunity, and diminished progress”. To put reasonable adjustments in place schools will have to “plan ahead, identify potential barriers, work in collaboration with disabled pupils, their parents and others, identify practical solutions through a problem solving approach, ensure that the school staff have the necessary skills, and monitor the effects of adjustments on a pupil's progress”. In making effective reasonable adjustments, it would be advisable for schools to take the advice and help of parents and pupils who have knowledge about living with impairment and experience of doing so. Pupils can also be good at judging what is effective. They will have the knowledge of what has worked well for them. The attitude of staff is another important factor for success in implementing reasonable adjustment needs of disabled pupils. A positive attitude of the staff who show a 'can do' approach could enable any barriers to be easily overcome and success to be achieved. Schools that have a consultative body or mechanism for all pupils and an adequate support-system may not encounter any serious problem in making effective reasonable adjustments for the benefit of the disabled pupils. An expert in these matters says that “combined with an appropriate curriculum and a variety of learning activities, a positive approach to managing behaviour can enable pupils to take charge of their own behaviour and support others in taking charge of theirs. Strong school leadership that sets a clear direction, promotes positive outcomes for disabled pupils, deploys the resources of the school to support teachers in identifying and removing barriers and keeps progress under review, makes for schools that are more effective at making reasonable adjustments” (Teachernet, 2007). Teachernet says that “Schools are more likely to succeed in their efforts to make reasonable adjustments when Governors, Head teachers, Special Educational Needs Co-ordinators (SENCOs), Teachers and all other staff are engaged in the process. Schools will know they are succeeding in making reasonable adjustments when disabled pupils are participating fully in school life: in the classroom, in the 'school curriculum', at breaks, lunchtime and beyond the school day; and when disabled pupils feel part of the life of the school; when they are included by their peers in all parts of school life; when parents feel their disabled child is part of the life of the school, and when the Staff feel confident working with disabled pupils” (Teachernet, 2007). A responsible body’s duty to make reasonable adjustments is an anticipatory duty owed to disabled people and students in general. It is not a duty to specific individuals. This means that schools should not wait until a disabled person applies to a course or tries to use a service before thinking about what reasonable adjustments they could make. Schools need to show that they have considered in advance how they will impart training to people with various disabilities, and where appropriate, they should make adjustments in advance. They should continually be anticipating the requirements of disabled people or students and the adjustments they could be making for them, such as regular staff development and reviews of practice. “What is "reasonable” will depend on the circumstances of a particular case and ultimately on the decision of the Disability Tribunal. However, in considering what reasonable adjustments to make, the Code of Practice gives some guidance as to what the school can take account of in terms of need to maintain academic and other standards, financial resources available’ practicality of taking the particular adjustment, health and safety of the disabled pupil and others and interests of other pupils who may be admitted to the school. Parents who feel that their child has been discriminated against can take a case to an SEN and Disability Tribunal, Admissions Appeal Panel or Exclusion Appeal Panel or, with the consent of the school against which a claim of discrimination has been made, to a conciliation service set up by the Disability Rights Commission. Parents must make a claim of unlawful discrimination to SENDIST within six months from when the alleged discrimination took place” (DDA and pre-16 education, 2002). “Some examples of reasonable adjustments: A university encourages its lecturers to put lecture notes on the institution’s intranet. It introduces new procedures to ensure that all notes put on the intranet meet established guidelines to ensure there is no conflict with specialist software or features that students with dyslexia may be using. It therefore anticipates reasonable adjustments that it might need to make for certain disabled students. A student with a sight problem is following a distance learning course. She sends in her essays electronically but receives marked essays by post with hand-written comments in the margins that she is unable to read. A likely reasonable adjustment would be for comments to be returned electronically. “The Act does not specifically say that one has to disclose one’s disability. However, if the institution did not know and could not reasonably have known that the individual is disabled, then failure to make an adjustment for a disabled person or student is not discrimination. For example: A man makes a written request to a college and asks for information about courses. He does not tell the college that he has no sight. Although the college produces its prospectus in electronic format, he is sent the print version, which he cannot access. The college’s failure to make an adjustment for the enquirer is due to lack of knowledge about his disability. This is likely to be lawful. “The requirement to make reasonable adjustments does not apply to qualifications bodies in respect of their "competence standards" which determine the qualification award. The competence standard is "an academic, medical or other standard applied by or on behalf of a qualifications body for the purpose of determining whether or not a person has a particular level of competence or ability". There will be no duty to make changes to a particular medical standard to accommodate an individual disability. However, adjustments can be required to the way in which a particular level of competence is actually determined (e.g. to an examination by which a particular level of knowledge is tested). If a disabled person has been discriminated against, she or he can appeal to the courts and claim compensation for any loss that she/he has suffered” (DDA - Education Post-16, 2007). In conclusion it has to be noted that The Disability Discrimination Act of 2005 has placed a duty on public bodies, including schools and universities, to promote disability equality. “The disability equality duty requires the public sector to actively promote disability equality, and is similar to the duty to promote race equality under the Race Relations Act. This is a positive duty which seeks to ensure disability equality at the beginning of the process, rather than make adjustments at the end.  It is said to have been designed to bring about a shift from a legal framework which relies on individual disabled people complaining about discrimination to one in which the public sector becomes a proactive agent of change” (Disability Discrimination Act 2005). _____________________ References DDA and pre-16 education, 2002: at www.rnib.org.uk/xpedio/groups/public/documents/PublicWebsite/public_rnib003798.hcsp DDA - Education Post-16: at (Last updated: 14/11/2007 12:33) www.rnib.org.uk/xpedio/groups/public/documents/publicwebsite/public_dda11.hcsp DDA chronology, 2006 DRC: at www.83.137.212.42/sitearchive/DRC/the_law/legislation__codes__regulation/dda_chronology.html Disability Discrimination Act 1995 · Feed icon Acts of UK Parliament.... [8th November 1995]. www.england-legislation.hmso.gov.uk/acts/acts1995/ukpga_19950050_en_1 - 51k – Disability Discrimination Act 2005, at www.rics.org/MyRICS/Accreditationandcertification/Inclusiveenvironments/dda2005.html/- Disability Equality Duty, 2002, at www.dotheduty.org/ Sayce Liz and Jed Boardman (2003): “The Disability Discrimination Act 1995: implications for psychiatrists”. Advances in Psychiatric Treatment (2003) 9: 397-404 available at www.apt.rcpsych.org/cgi/content/full/9/6/397?ck=nck Teachernet: Making reasonable adjustments for disabled pupils :( Page created: 16 February 2007) at www.teachernet.gov.uk/wholeschool/sen/disabilityandthedda/Makingreasonableadjustmentsfordisabledpupils/ Understanding the DDA: a guide for colleges universities and adult community learning providers in Great Britain, at www.equalityhumanrights.com/Documents/Disability/Education/Understanding%20the%20DDA%20a%20guide%20for%20. WBC, 1995: Civic Office, Wokingham Borough Council, at www.wokingham.gov.uk/health-social-care/accessibility/dda-1995 - 35k - Read More