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Question 13 - the anticipatory duty

The duty to make reasonable adjustments to facilitate access by disabled students is an anticipatory duty, owed to disabled students generally. The level of the duty is likely to increase over time. This means that (select any that apply):
a) all adjustments that could be anticipated, and do not require the provision of auxiliary aids or adjustments to premises, must be in place by September 2002
b) there is no duty to arrange reasonable adjustments on an ad hoc basis as students require them
c) a wide range of generally useful adjustments should be put in place before any student is known to require them, eg installing hearing loops, providing alternative formats, adapting teaching rooms to improve physical access for wheelchair users
d) if an adjustment cannot be anticipated there is no legal duty to make it in advance

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Question 14 - legal defence for discrimination

In law it is possible to argue a defence for discrimination if (select any that apply):
a) the disabled student is rude and aggressive
b) the disabled student requests confidentiality and the required adjustment would jeopardise this
c) staff had had training about the requirements of the Disability Discrimination Act and had been told not to discriminate
d) the discrimination only occurred because the institution did not know about the disability despite having taken reasonable steps to find out

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Question 15

Alex is a student with ME. He did not disclose his disability when he applied to the institution he is studying at, although he was provided with several appropriate opportunities to do so. At the end of his first year on the course, a month before he is due to sit his end-of-year exams, he asks his tutor for extra time in exams so that he can have rest breaks, mentioning his ME as the reason why. His tutor should (select one answer):
a) refuse the request after checking with the disability co-ordinator at the institution who confirms that no disclosure was made at the appropriate time
b) refuse the request because the disability co-ordinator has not filled out a form indicating any special needs for Alex although such a form exists for other students on the course
c) agree to the request only if Alex provides medical or other evidence of his disability and the effect it has on him
d) as a matter of good faith, agree to allow Alex extra time then and there and document this decision and the grounds for it

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Question 16

Carol has dyslexia and has missed two careers appointments that she had booked because she panicked at the last minute about having to fill out the careers service registration form she has heard about. The careers service has a practice of refusing a further appointment if a student misses two previous appointments. This practice should (select one answer):
a) in fairness, be applied to all students equally, regardless of disability and therefore Carol should be denied a new appointment
b) be subject to a 'reasonable adjustment' if Carol explains her dyslexia and the reason why she missed the appointments
c) include a qualifying statement in all literature describing the practice that it is subject to reasonable adjustments under the Disability Discrimination Act
d) be subject to a discussion with the student before the adverse decision not to offer a new appointment is made

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Question 17

Shiva is an international student and is deaf. When he arrives at college to start his course, he asks for a sign language interpreter. Without a sign language interpreter he is placed at a substantial disadvantage in accessing his course. The institution should therefore make a reasonable adjustment under the Act (select one answer):
a) by funding and providing a sign language interpreter to attend all Shiva's lectures because it is the beginning of the year and funds are high
b) by refusing to fund and provide a sign language interpreter because Shiva is not eligible for Disabled Students' Allowances
c) by making a financial assessment of the cost of supporting Shiva and all other disabled students requiring support, and offering to fund a set number of hours per week of sign language interpreter with the option that Shiva funds any remaining hours required
d) by refusing to fund a sign language interpreter for Shiva if the relevant budget has run out

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Question 18

Dan has a visual impairment. He didn't disclose this when he applied but during his induction week he makes an appointment to see the disability co-ordinator and discloses his disability. The disability co-ordinator should (select any that apply):
a) establish whether Dan is happy for the information to be disclosed more widely and if he is, ask him to sign giving his explicit permission for this
b) make a record of Dan's details and develop a documented action plan to make sure all relevant staff know about it and about any 'reasonable adjustments' they should be responsible for, then put this into force
c) if Dan gives his permission, discuss with Dan what his preferences are with regard to support arrangements and alternative formats and contact appropriate staff members to put the support arrangements in place
d) tell Dan he has disclosed too late for it to be reasonable to make any adjustments for him

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Question 19

Anna has been diagnosed with depression. She has disclosed her disability to the disability co-ordinator but has said that she doesn't want any reasonable adjustments put in place so the disability co-ordinator has not passed the information on beyond the disability office. However, Anna's best friend, Carol, has become worried about her as she is missing lots of lectures and staying in bed all the time. Carol decides to tell her personal tutor about her concerns. The personal tutor should (select one answer):
a) reassure Carol, saying that this is what students are like, and do nothing until Anna herself seeks help
b) ask Carol to speak to Anna and try to persuade her to see a counsellor
c) set up an urgent meeting with the disability co-ordinator to discuss possible ways forward
d) visit Anna in her room as a matter of urgency

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Question 20 - Skill: National Bureau for Students with Disabilities

Skill is well placed to advise on the new duties under the Disability Discrimination Act Part 4. You can telephone Skill on (select any that apply):
a) 020 7450 0620
b) 0800 068 2422
c) 0800 328 5050
d) 020 7450 0630

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How did you score?

Question 1
a) -1 points
b) 0 points
c) 4 points
d) -1 points

Question 2
a) 0 points
b) 0 points
c) 0 points
d) 4 points

Question 3
a) -1 points
b) 0 points
c) 4 points
d) 2 points

Question 4
a) 1 point
b) 1 point
c) 1 point
d) 1 point

Question 5
a) 0 points
b) 0 points
c) 4 points
d) 0 point

Question 6
a) 4 points
b) 0 points
c) 0 points
d) 0 points

Question 7
a) 0 points
b) 2 points
c) 0 point
d) 4 points

Question 8
a) 0 points
b) 0 points
c) 4 points
d) 0 points

Question 9
a) 0 point
b) 0 point
c) 2 points
d) 2 points

Question 10
a) 0 points
b) 4 points
c) 1 point
d) -1 point

Question 11
a) 1 point
b) 1 point
c) 1 point
d) 1 point

Question 12
a) 1 point
b) -2 points
c) 0 points
d) 3 points

Question 13
a) 0 points
b) -2 points
c) 3 points
d) 1 point

Question 14
a) 0 points
b) 2 points
c) 1 point
d) 1 point

Question 15
a) 0 points
b) 0 points
c) 4 points
d) 2 points

Question 16
a) 0 points
b) 2 points
c) 4 points
d) 2 points

Question 17
a) 2 points
b) -2 points
c) 4 points
d) -2 points

Question 18
a) 2 points
b) 0 points
c) 2 points
d) 0 points

Question 19
a) 0 points
b) 2 points
c) 4 points
d) 0 points

Question 20
a) 2 points
b) 1 point
c) 1 point
d) 0 points

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Please tell us how well you did!

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Score: 50 - 64
Well done. You have got to grips with a lot of the key features of the new law. However, you could still probably benefit from contacting Skill to order a copy of their guide to the DDA, priced £12.50.

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Score: 35 - 50
Your knowledge is somewhat wanting. You have some understanding but only of the basics. You may find it useful to purchase a copy of Skill's guide to the DDA, priced £12.50.

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Score: 0 - 34
This is really terrible. Contact Skill now to order a copy of Skill's guide to the DDA, priced £12.50.

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Comments

Question 1
C is really the only acceptable answer to guarantee legal compliance and encourage good practice. Under the Act the cumulative effects of several more minor impairments can count together as a substantial effect. 'Memory, or ability to concentrate, learn or understand' count as normal day-to-day activities. There is a list of such activities in the Act. Further information can be found in the Department for Education and Employment publication, 'Guidance on matters to be taken into account in determining questions relating to disability' (1996). However, there is some uncertainty as to the application of the legal definition of disability to students with dyslexia in general as it could be argued that writing essays and concentrating for prolonged periods are not 'normal day to day activities'. Answer B scores no points because the Act provides that where an impairment is corrected (in this example, by equipment) the impairment is to be treated as having the effect it would have without the correcting measures. Answer D scores no points because eligibility for DSAs is irrelevant here.

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Question 2
Determining what is reasonable is an objective test, and regardless of what the governing body thinks, it is for the court to determine on an objective basis. D is the correct answer but it is worth bearing in mind the following:
· the judge is likely to consider what a lay person might think is reasonable when making his decision, and
· acting on the basis of evidence is very important under the Act, and
· the governing body is, ultimately, the responsible body under the Act.

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Question 3
C is the correct legal answer but answers B and C will generally lead you to the same conclusions and points have been allocated accordingly. Of the two C is the better answer because the individual circumstances of the case are always important. A is a poor answer because the effect would be greatly to restrict the application of the Act and disabled students rights would not be sufficiently protected.

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Question 4
Yes - all these students will be covered as will, for example, part time students, adult and evening class students, postgraduate students, international students and students following a single module. Basically all students undertaking courses provided by the institution will be covered.

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Question 5
Under the Act a responsible body must take reasonable steps to ensure that disabled people or students are not placed at a substantial disadvantage in comparison to someone who is not disabled. Factors to consider in assessing reasonableness include: maintenance of academic standards, financial resources, other funding available, cost, practicality, other aids or services available, health and safety requirements and the relevant interests of other people including other students. The behaviour of the disabled student (answer a) may be relevant but not to the extent of ruling out other factors. The legitimate interests of other students are relevant under the Act, but many of the views of other students are unlikely to be relevant (answer b) as these may reflect attitudes founded on prejudice or ignorance. Also likely to be relevant is an assessment of how essential the service is, and how detrimental the effect of not being able to access the service is to the student.

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Question 6
A is the correct answer. The September start dates reflect the autumn start of the academic year structure. These dates are just something you have to memorise. The corresponding implementation dates for Part 3 of the Disability Discrimination Act are 1996, 1999, 2004. Part 3 contains duties relating to the provision of goods and services to the public and, prior to the new Part 4, apply to some services provided by institutions including careers services and canteens.

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Question 7
Reconciling the duties of the Act with the duties of the Data Protection Act and the ethical imperative to respect a request for confidentiality will not be straightforward, either legally or practically. These are tricky areas for institutions to manage and to a certain extent they are also grey areas that must await case law for clarification. Answers A and C are unacceptable responses. Answer B is OK - it is always good to consult the student. Answer D carries the highest score because it explores all options and is centred on the wishes of the student.

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Question 8
'Maintenance of academic standards' and 'reasons that are material and substantial' are the two justifications for less favourable treatment under the Act. Institutions should be very careful about the grounds on which they seek to rely on these justifications. For example, adjusting the curriculum is likely to be deemed reasonable in certain circumstances. Therefore academic standards cannot be cited as an all-embracing reason never to look at, and adjust, the accessibility of course content and structure. Academic staff will need to give proper thought to what the essential skills, knowledge and aptitudes required by the course really are, and what elements of a course are incidental or unimportant. Practices that really just represent tradition or convention do not count as academic standards. A 'material and substantial' justification needs to be material (ie relevant) to the individual circumstances of the case, so blanket exclusions are unlikely to be acceptable. The safest approach would be to allow all aspects of a course to be open to question and challenge so that their importance to the course can be tested. For these reasons, answers A, B and D score no points because they demonstrate a knee-jerk discriminatory approach that is not based on a full consideration of individual circumstances.

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Question 9
Knowing which students are covered by the Act is easy to remember because essentially all students following courses or other educational provision organised by an institution will be protected under the new law. Knowing which bodies have responsibilities under the new law is also important and it's really just a question of learning them. Therefore 'responsible bodies' under the Act are:
· all higher and further education sector institutions
· other 'designated' institutions including specialist colleges
· LEA or local authority post-16 adult education and community provision
· statutory youth service
· adult education in schools.

For avoidance of doubt, the following are not covered:
· education for children at school (separate Part 4 provisions apply)
· 6th form schools (separate Part 4 provisions apply)
· wholly private education providers (Part 3 provisions apply)
· work-based training, unless it is provided by a college (Part 3 provisions apply)
· other, non-statutory youth provision (Part 3 provisions apply)

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Question 10
B is the correct answer in law but answer C scores you a point as it likely to have the same effect in practice. There probably won't be many examples of services that are not 'student services' under the Act but there may be one or two, for example, a dedicated staff car park or staff canteen.

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Question 11
All the answers are likely to count as 'student services' in most institutions so you score one point for each selected. The answers were chosen to give an example of the range of services affected, from provision of teaching and learning to all aspects of extra curricular life on the campus. For all student services there will be issues about both physical accessibility and about accessibility of procedures and policies. The Code of Practice that accompanies the new Part 4 post-16 duties gives a longer and much more comprehensive list of the 'student services' that are likely to be covered by the new law.

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Question 12
In the case of an allegation of discrimination it will be necessary for the institution to consider whether it knew, or could reasonably have been expected to know, that a person was disabled. Clearly lack of knowledge will only be an issue for invisible disabilities. It will therefore be very important that students are given genuine opportunities to disclose at more than one point during their application/induction/period of study. Institutions should strive to foster an open and inclusive atmosphere. Putting up posters (answer A) would go some way towards doing this. Answers B and C score negative points because they reflect a lack of sensitivity to the fact that disability can be a very personal and private issue. Answer D scores highest because it reflects a concerted approach to create numerous opportunities for students to disclose at various points as they progress through their course of study.

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Question 13
The anticipatory duty under the new law is a very important one. It is a duty owed to disabled people and students generally. It will not always be possible to anticipate all reasonable adjustments but many common adjustments will be necessary because of the likelihood that large numbers of disabled people will benefit. The duty will have implications for an institution's long term financial planning and budgeting strategy. The duty is an evolving duty and will change over time, i.e. what is considered unreasonable this year may be considered reasonable next year. Answer A is wrong as it is not reasonable to expect institutions to do everything all at once. Answer B is wrong because there is also a duty to put in place individual reasonable adjustments for particular disabled students. Answer C reflects an appropriate and measured response to the anticipatory duty. Answer D is correct in law.

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Question 14
Little is known about what may or may not be considered a defence in law for discrimination. The post-16 Code of Practice does not contain a section on defences. However, answer B and D are known defences. Technically it may be that these defences really have the effect of meaning that discrimination did not take place in which case they are not strictly legal 'defences' as such. For these reasons this question and the answers and scores attached to it are, to a certain extent, speculative. However, as a rule it will probably be best to ignore issues around personality and behaviour as these do not help in an application of the law to the facts. This is why answer A attracts 0 points.

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Question 15
The duty to make reasonable adjustments under the Act is absolute and it would be unwise to refuse a request of this sort, even on the grounds that the student had failed to take up several previous opportunities to disclose. Therefore no points have been awarded for answers A or B. Answers C or D are acceptable although the scoring reflects Skill's view that C is the better answer. Agreeing to an adjustment without evidence of disability is arguably one way of avoiding a discrimination claim but, depending on the degree of knowledge of the student's character etc, also runs the risk of abuse of the system through false claims and unfairness to other students. Answer C is arguably a fairer policy, but if a student refuses to provide evidence, there is a risk that in refusing the reasonable adjustment, discrimination will take place in fact. One way round this would be to ask for evidence, and if it is refused still consider making the reasonable adjustment depending on the circumstances (level of trust in student's claim etc).

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Question 16
Institutional policies and service level policies are useful exercises in that they are a means of informing users and staff what can be reasonably expected from the service. However, inflexible policies that may have the effect of discriminating against disabled people are likely to be unlawful. Therefore answer A is unacceptable: equal treatment is not equal opportunity. Answers B and D are OK but indicate that the written policy on the face of it is vulnerable to the charge of being discriminatory. Answer C is the best answer as it shows that a disability discrimination 'proofing' process was carried out when devising the service's policy in the first place.

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Question 17
Answers B and D are wrong in law and reflect poor practice. They do not show that the institution has applied the legal test of 'substantial disadvantage'. Answer A is great from Shiva's point of view but suggests a financial planning for the disabled student population as a whole. Answer C score highest because it is based on sensible assessment of total support costs, and recognises Shiva's need alongside the need to reserve funds for other students who may need similar levels of support.

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Question 18
Disclosure and confidentiality are complex issues under the Act (see question 8 above). Both have substantial implications for staff time and internal communication procedures. Answers A and C are good answers and reflect a full and appropriate response to Dan's disclosure under the Act. Answer B is poor because Dan is not fully consulted. Answer D will not stand up in court.

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Question 19
Managing your duties under the Act with regard to students with mental health difficulties is a sensitive and problematic area. In Anna's case, disclosure has occurred so one problematic area has been removed. The personal tutor, acting for the institution, does have a duty to respond to the concerns of Anna's friend and to investigate possible reasonable adjustments under the Act that may help support Anna. Answer A is therefore inadequate as they ignore this duty. Answer B scores 2 points but is a slightly high-risk strategy. Answer D would be an unwise course of action. It is too intrusive and could leave the tutor vulnerable to charges of improper behaviour. Answer C is the best response. What the next step should be is a tricky issue. Possibly the disability co-ordinator should leave a note under Anna's door explaining the situation, describing the help and support that is available, and asking Anna to make contact with her, with the promise that confidentiality would be respected.

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Question 20
Skill can be contacted on numbers listed in answers A, B and C. The first is Skill's main reception number. The second is the free textphone number of Skill's Information Service. The third is the freephone helpline number of Skill's Information Service. The last number is not a Skill number.

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