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Some DDA myths uncovered

This article is based on a talk given at Skill’s higher education conference Cracking the Code, held in Birmingham on 3rd and 4th December 2001. Please note that nothing in this article constitutes legal advice.

This brief article does not attempt to explain Part 4 of the DDA and how it relates to post-16 education. It does not attempt to replace the statutory Code of Practice, nor, particularly, to offer ideas on good practice. What it does attempt to do is raise some strategic issues and draw attention to some of the less expected aspects of the new provisions. The article is based around a number of myths or common misunderstandings about the law.

One of the trickiest issues of the new legislation relates to
disclosure. The Act says that you are not unlawfully discriminating against someone if you treat them less favourably for a reason related to their disability if you did not know, and could not reasonably have known, that he or she was disabled.

Further, it is possible that you are not unlawfully discriminating against someone when you fail to make a reasonable adjustment if you did not know and could not reasonably have known they were disabled.
However, this applies only if the adjustment is not one that should have been made anyway as an anticipatory adjustment.

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Ignorance is not the same as innocence

But let us be clear; this does not mean that ignorance is innocence and for two key reasons. The second we will deal with later, which is the issue of making anticipatory adjustments. The other is around the phrase ‘could not reasonably have known’. To be able to show that you could not reasonably have known that someone was disabled you need to have taken reasonable steps to find out if someone is disabled. The Department for Education and Skills (DfES) is producing some good practice guidance on what such reasonable steps might be. It will suggest that there are certain key points when you should be asking people whether they have a disability. Such points might, for example, be:
  • On application to a course (this applies to all students, not just students applying for full time or degree courses)
  • When applying for accommodation
  • On enrolment
  • When starting a new module or unit
  • When registering for examinations
  • When registering for field trips or outings of other sorts
  • When a student has a first meeting with a personal tutor (if personal
  • tutors still exist in your institution)

Simply asking a student whether he or she has a disability may not be quite enough. The way in which the question is asked is also important:
  • Is the reason for the question explained?
  • Does the situation in which the question is asked ensure confidentiality for the student? (This might be a particular issue during enrolment where often whole crowds of students are milling around at once!)
  • Is the atmosphere of the institution one that might encourage a student to disclose?

This has implications for a number of institutional systems and procedures.
  • Standard forms are sent out by a number of different departments –accommodation, academic departments, registry – do they all ask students to declare a relevant disability?
  • Some processes may be very difficult to change. For example, the logistical difficulty of enrolling thousands of students on one day makes opportunities for confidential disclosure difficult (though not impossible) to organise.
  • If the overall atmosphere and culture of the institution is not welcoming to disabled students, then it is likely to be even harder to create an atmosphere which encourages a student to disclose.
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Disclosure is not the same as ‘knowing’

But what often happens is that a student does disclose his or her disability but the institution still doesn’t ‘know’.

It is not completely clear at what point an institution, or more properly the ‘responsible body’ as it is known in the legislation, is deemed to know that a person has a disability.

Some lawyers have suggested that if any employee knows, then unless that staff member works to a specific external code of confidentiality (such as a college nurse or counsellor) then the institution is deemed to ‘know’. From that point on, the institution has responsibilities not to discriminate against that student. Other lawyers suggest that this applies only if the employee has some significant role or responsibility within the institution.

Some believe that if a student tells a staff member in confidence, then it would be ‘unreasonable’ for the institution to expect that individual to break that confidence by passing the information on (unless, of course there was some overriding health and safety consideration). In such a case the institution could not, therefore, ‘reasonably’ have known that a person had a disability.

Others argue that, once any staff member is told, whether or not that person is told in confidence, the responsible body ‘knows’ from that point.

Whichever way this issue is interpreted, there are significant implications.

First, it will be important for all staff to be alert to the fact that if a student or applicant mentions to them, even in passing, that they have a disability, that this might be disclosure.

The staff member will need to know what he or she should do in such circumstances. This might for example include

  • Asking the student if he or she has provided this information in confidence or whether the intention is for the information to be passed on ( but, as mentioned above, some lawyers have suggested that even if the student has disclosed in confidence, the staff member is required to pass the information on)
  • Referring the student to the disability adviser or whoever is the relevant person to take the next step
  • Ensuring that, even if the student has said he or she will self-refer, the information is passed on by the staff member to the disability adviser.
This will not happen automatically. Staff will need guidance on how they should react when a student discloses a disability to them, and may need training before they feel completely confident in what may be a new role to them.

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In confidence is not the same as a ‘confidentiality request’

The existence of different opinions about what should happen when a student passes something on in confidence has been mentioned above. In contrast, when it comes to reasonable adjustments, the law is clear - institutions are required to comply with ‘confidentiality requests’.

A confidentiality request relates specifically to the duty to make reasonable adjustments. Under a confidentiality request a disabled person may ask for the nature or the existence of their disability to be kept confidential. In such circumstances the responsible body must comply with the student’s request. But a confidentiality request does not necessarily mean that no information is passed on, or that no adjustments are made. This may be because:

  • the request relates only to the nature, not the existence of a disability.
  • the request relates to particular people, for example only to other students, or to particular staff. In such a case it is up to the institution to ensure that the adjustments are still made but without contravening the request.
  • some adjustments cannot be made but different (and in some cases, perhaps less appropriate) adjustments can be made in their stead.

So, for example, a student may have requested that the nature of his disability be kept completely confidential from all but the disability adviser. In such a case adjustments could still be made, but the staff making them may not be told the full reasons for the adjustment.

At Skill, we don’t think it is possible to keep a confidentiality request if you have already broken confidentiality to comply with less favourable treatment. But until we have greater consensus from the lawyers, we are unable to provide any clear advice on this.

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The DDA is not the DPA (nor any other law)

Thinking about confidentiality raises a number of questions round health and safety issues and the Data Protection Act (DPA). Nothing in the Disability Discrimination Act overrides the duties that an institution must fulfil under the Data Protection Act, Health and Safety legislation or even common law negligence responsibilities. The Data Protection Act, in particular reinforces some aspects of the DDA. Under the Data Protection Act, any written or electronically stored information about a person’s disability is what is called ‘sensitive personal’ data and may not be passed on without the explicit permission of the student. As a result, you should already have good systems for ensuring that information is kept confidential and staff are briefed on how to deal with it.

As mentioned above, if there is a genuine overriding health and safety risk, or there are issues about duty of care to the student or other students or staff, then it may be appropriate to break a confidence or even a confidentiality request. In such cases, the duty of care, and health and safety come first.

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Disclosure is not the same as providing evidence

Returning then to what an institution can reasonably know, a student is not necessarily required to provide evidence of their disability before it could be argued that a responsible body might ‘reasonably know’ that a person was disabled.

Whether a student is disabled or not as defined under the new legislation is up to the court, not up to the evidence which an institution requests. If a student tells you he is disabled, and it turns out in court that he is, it is unlikely to be enough for an institution to say ‘well he couldn’t prove it to us’. If the institution wants to check someone out before providing expensive support or extra exam time, it may even be that the institution will need to arrange and pay for such evidence itself.

This is not a charter for every student to demand concessions on the grounds that an institution dare not refuse. A responsible body is ‘responsible’ only if they could ‘reasonably’ know. If they do all that is reasonable, and the balance of evidence is against a student having a disability, they would not be held responsible. For example, a student might claim to be dyslexic, and the institution might reasonably request that he take a screening test, and then if that was positive, have an assessment with an educational psychologist. If, however, the student refused to cooperate in any way, and if there was no separate evidence of his disability (for example it was not possible to draw any inferences from his work) then it might be difficult to argue that the institution could ‘reasonably’ know that the student was disabled.

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Knowing is not the same as doing

Gaining knowledge is one thing, but is of little use unless it can be translated into action. This means that information collected by one staff member in one part of the institution will need to be passed on to other staff members in other parts of the institution who may be in danger of treating someone less favourably, or who may have to make adjustments. While this sounds straightforward, in decentralised and often complex organisations, it is not always very easy. A disability adviser may think she has passed the information on, but magically it seems to get lost between her outbox and the inbox of the recipient: the lecturer (or, indeed, visiting lecturer) who needs to face the front when lecturing, or the assistant librarian who has to ensure a dyslexic student gets extra loan time. There is no easy solution to this. Communication systems in institutions are not always efficient. If they are to be sufficient to keep them inside the law, they may need to become more so.

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A student is not the same as a person who gets DSA

Another key misunderstanding about the new legislation is that it applies only to those students for whom institutions are already making adjustments funded by Disabled Students’ Allowances (DSAs). The duty to make reasonable adjustments is not restricted to those who are eligible for DSA. Indeed the two are not connected at all. To be eligible for a reasonable adjustment you have to be

a student or prospective student (and this includes continuing education students, pupils on visits from schools, distance learners in Malaysia, students from a local employer taking a module through your business school….), and
at a substantial disadvantage in relation to student services (that is any provision made wholly or mainly for students or prospective students).
And of course there needs to be an adjustment which will be ‘reasonable’ and which can allay this disadvantage.

If the student is eligible for DSAs, then by all means an institution could expect the student to use this. In all likelihood it would be considered eminently ‘reasonable’ for an institution to expect this. If a student cannot get DSA, then the institution would need to consider what adjustments may be reasonable taking into account all the circumstances of the case. These circumstances might include a number of factors, including cost, disruption and practicality, all of which are listed in the Code of Practice. It might also include the number of hours the student attends (putting in a lift for someone attending just one weekend school might not be reasonable for example). Another factor might be the amount the student is paying (organising dyslexia tuition for someone already paying £1,000s because they are from overseas, might be considered eminently reasonable).

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Beyond the campus is not the same as beyond your control

A student does not even need to be on site to be protected by the new legislation. The Act relates to any provision that an institution makes, and that includes e-learning, distance learning and many aspects of work placements or years abroad.

Where provision is being made entirely by another party on a work placement for example, the responsible body is not liable directly for what might happen. However, institutions will have responsibilities in as far as they have contractual relations with third parties (whether these are verbal or written). Institutions will also be expected to monitor any arrangements and ensure that they are working and that discrimination is not happening.

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Ignorance is not the same as innocence (again)

The institution is responsible for the actions of its employees, and to a lesser extent, of its agents. The term ‘agents’ includes all those people and organisations which an institution arranges to deliver services on its behalf without employing them directly, such as visiting lecturers, catering companies, housing associations or contract cleaners. To comply with the legislation, institutions will need to ensure that

contracts are clear about what is expected of agents
the activities and behaviour of agents is monitored (which may mean having a clear and usable complaints procedure) and
action is taken when things are not up to scratch.
If an institution takes all these precautions and an agent nevertheless acts in a discriminatory way, (so long as the institution then takes action to ensure it does not happen again) the institution may have a defence. Which links closely to the next ‘inequality’.

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Offering training, is not the same as training someone

Higher education institutions can have excellent training programmes but may never train anyone, because no one turns up! To have a defence if an employee acts in a discriminatory way, however, an institution needs to have done all that it reasonably could to ensure that discrimination did not occur. This might include one or all of the following

  • making training compulsory
  • providing written guidance to staff
  • ensuring that acting in a non-discriminatory way is written into the equal opportunities policy and so becomes part of the employment contract
  • ensuring that discrimination becomes a disciplinary offence.

While this may at first sight seem a little harsh, it is no more or less than applies to many other statutory responsibilities, such as other equal opportunities issues or health and safety. It is the institution’s responsibility to ensure that the law is complied with, and it will be held responsible if its staff do not comply. Again, this is likely to require a complete change in approach from many institutions.

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Having no students does not lead to taking no action

Over the years Skill has come across a number of institutions whose excuse for having no accessible provision is that they have no disabled students or applicants. This will cease to be a viable excuse from 1 September 2002. The law requires adjustments to be made in anticipation of those who might need them. This means that institutions need to do four things.

Evaluate their existing provision, procedures, physical access, curriculum access, teaching delivery styles, staff training provision, and all their other services and assess whether any aspects of that provision might put a disabled student at a ‘substantial disadvantage’.
Assess the ‘reasonableness’ of any adjustments that might be made to allay that disadvantage, taking into account, for example, the likelihood of a disabled student wanting access to a service, the cost and the time it might take to put an adjustment in place if it was left until it was actually needed.
Make strategic plans outlining how anticipatory adjustments are to be made and paid for in both the short and long term.
Make the adjustments!
If adjustments are anticipated, the need for some students to disclose their disability may disappear. As a result, ignorance of an individual’s disability will provide no defence if it can be argued that an adjustment could have been anticipated and put in place in advance. Failure to plan ahead really could be disasterous.

The above may sound very daunting to hard-pressed disability advisers. But I have two comforting final thoughts.

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The DDA is not the same as the QAA (but it comes pretty close)

First, if institutions plan ahead, think about their systems and procedures, in fact if they take the Quality Assurance Agency Code of Practice on disabled students seriously, then they are likely to remain inside the law. But perhaps the greatest comfort I can offer you is my final negation:

The responsible body is not the same as the disability adviser

Second, and this will be a comfort to disability advisers, but possibly not to institutions, it is not the disability adviser who is most likely to be found to have committed an unlawful act. The ‘responsible body’ is the governing body or board of governors within the institution. A disability adviser may, of course, be found to have aided an unlawful act, just like any other member of staff, but this is unlikely if you have done your bit and the organisation has let you down. As a disability adviser, our key job may be to communicate this fact to your senior managers.

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