Special Educational Needs and Disability Act

by Sophie Corlett, Policy Director – Higher Education

The Special Educational Needs and Disability Act became law on 11 May 2001. As a result, discrimination against disabled students in the provision of education, training and other related services will become unlawful. The legislation will apply in England, Wales and Scotland but not, as yet, in Northern Ireland.
The new Act covers pre- and post-16 education, but the following article deals only with post-16 issues.

Who will the Act protect?

The new Act is an amendment to the existing Disability Discrimination Act 1995 (DDA), and therefore only protects people who are defined as disabled according to that legislation. This is not ideal, because the definition of disability in the DDA is based on an individual’s ability to carry out ‘normal day-to-day’ activities. So, for example, ‘inability to concentrate on a task requiring application over several hours’ is not considered disabling, because concentration over a long period, however common for students taking exams, is not considered to be a ‘normal’ day-to-day activity. It seems likely, therefore, that there will be a number of people who will not be able to use the new legislation. However, many of these students will continue to be provided for by the support systems within their institutions, and will continue to be eligible for Disabled Students’ Allowances and other assistance.

Who will have responsibilities under the new law?

The new law will give new responsibilities to all further and higher education institutions, schools with post-16 provision (although these are covered by the pre-16 sections of the Act, not the post-16 sections), and local authorities when these organisations provide further, adult or continuing education or training that are funded or partially funded through one of the funding councils, Learning and Skills Council, National Council for Education and Training in Wales or an education authority. The statutory youth service is also covered. The Act also allows for regulations to designate more institutions as being covered by the legislation, and it is understood that many specialist residential colleges for disabled people will be brought under the provisions in this way. Work-based training providers are not covered by the new legislation will continue to be covered by Part III of the DDA.

What does the Act cover?

The new law will affect all education and training provided by these bodies, admissions to courses, exclusions, and the provision of other ‘student services’. ‘Student services’ is an all inclusive term, and includes services of any description provided wholly or mainly for students or those enrolled on courses. This includes not only education, but residential accommodation, leisure facilities, catering and library facilities, careers and welfare services, and services already covered by Part III of the existing DDA. These services will transfer from Part III of the DDA to the new provisions as these come into force.

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What will education providers have to do?

It will be unlawful for institutions or other education providers to treat a disabled person ‘less favourably’ than they treat, or would treat non-disabled people for a reason which relates to the person’s disability. For example, it would be unlawful for an institution to turn a disabled person away from a course, or mark them down in an assessment, because they had dyslexia or were deaf.

Part of not discriminating is making ‘adjustments’. If a disabled person is at a ‘substantial disadvantage’, the education provider is required to take such steps as are reasonable to prevent that disadvantage. This might include changes to policies and practices, changes to course requirements or work placements, changes to physical features of a building, the provision of interpreters or other support workers, the delivery of courses in alternative ways, or the provision of materials in other formats.

For those services already required to make reasonable adjustments under Part III, this will be familiar territory. However, it is worth noting that the threshold for adjustments (when existing arrangements place a disabled person at a ‘substantial disadvantage’) is much lower then for Part III (when arrangements are ‘impossible or unreasonably difficult to access’).

The concept of adjustments will also require educators to look at some fundamental issues regarding their academic/subject disciplines and the methods used to teach and assess these. It is not expected that academic standards should be lowered to accommodate disabled students - one of the justifications for less favourable treatment, and one of the criteria for determining whether or not an adjustment is ‘reasonable’, will be the maintenance of academic or other relevant course standards. However, it will not be enough for institutions to use this defence without thinking through the implications. They will need to consider what is essential to these subjects, and so cannot be compromised, and what is peripheral or incidental and so can be waived or substituted.

Besides academic standards, the reasonableness of individual adjustments can also be measured against cost, practicality and disruption to and to other students and the financial and other resources available. Providers will not be expected to replicate provision which students already receive through other means for example, support funded by disabled students’ allowances. They may however, need to think about providing appropriate access to those groups of students ineligible for such allowances.

The duty to make reasonable adjustments is a duty to disabled people generally, not just to particular individuals. This ‘anticipatory’ aspect effectively means that providers must consider what sort of adjustments may be necessary for disabled people in the future, and where appropriate make adjustments in advance.

The anticipatory nature of the legislation should mean that the needs of some disabled students will be met automatically. In other cases, adjustments will need to be made for individuals in response to particular needs. There will thus be a responsibility on education providers to do what they can to find out whether individuals have disability-related needs. However, if an education provider has made reasonable attempts to find out, but an individual student has chosen not to disclose their disability or need, education providers will not be liable for any failure to make specific individual adjustments.

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Redress

The Disability Rights Commission is being asked to set up a conciliation service, which it is hoped will deal with most complaints in a speedy and effective way. If both parties do not agree to conciliation, or if conciliation fails, students may take cases to court (the county court in England and Wales and the sheriff court in Scotland). Courts will have the power not only to determine the rights of the case, but also award compensation and impose injunctions or interdicts to ensure discriminatory practices are reviewed.

Timetable

With two exceptions, the new legislation will be in force by 1 September 2002. The exceptions are reasonable adjustments involving the provision of auxiliary aids and services (such as interpreters etc) which comes into force on 1 September 2003 and the requirement to make physical adjustments which is to be implemented on 1 September 2005.

Skill is working with the Disability Rights Commission to produce a statutory Code of Practice which will provide guidance to providers on the implementation of the new law. The Code is out for consultation until October 2001, and will be published in final form in March 2002.

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