Why I think universities should prepare for the greater rights of disabled students

April 4, 2003

Recent legislation has targeted universities in an attempt to tackle possible discrimination against disabled people. Since last September, after the Disability Discrimination Act was significantly amended by the Special Education Needs and Disability Act, higher education institutions have been legally obliged not to "discriminate" against students with disabilities either by treating them less favourably or by failing to make "reasonable adjustments".

From September 1, 2003, universities will have to make auxiliary aids available, and from September 1, 2005, they will have to make reasonable adjustments to remove physical barriers to access in buildings.

The disability discrimination "industry" is growing, and there is no shortage of organisations willing to encourage universities to spend money to comply with this legislation. However, institutions should not panic and start wasting funds in ways that might prove unwise. Instead, they should adopt active risk-management procedures.

If students feel that they have been discriminated against, they can raise this directly with the university and there is a good chance matters will be settled amicably. Therefore, the first thing that universities can do to help themselves is to publicise comprehensive complaints procedures.

Aggrieved students can also take their complaints to the Disability Rights Commission, a government-funded body that promotes disability rights and provides advice to the public on the operation of the legislation. The DRC also has some enforcement powers, is responsible for an "independent" conciliation service and can fund court actions brought by disabled students. Given the variety of its functions, one must question how independent the DRC's conciliation service or its advice can really be.

An aggrieved student can also begin court or tribunal action against a university, with or without funding from the DRC. A school is already being sued for failing to be flexible in the application of its policies regarding uniform, where the required clothing caused difficulties for a boy with eczema.

As yet, no cases have been brought against British universities or colleges, but there is trepidation and it is valid. In Australia, where equivalent legislation has been in force for nearly ten years, case law makes for sobering reading. For example, Queensland University was ordered to move its graduation ceremony to a different venue six weeks before the event was due to take place, so that a student in a wheelchair could participate in the final procession.

At first glance, the UK legislation seems relatively straightforward. But closer examination shows it to be vague and inconsistent. For example, the requirements of the Disability Discrimination Act do not sit well with data protection legislation or the law of confidentiality. Furthermore, the DRC's code of practice, published to provide guidance for further and higher education institutions, is far from comprehensive. It says nothing about the overlap with social work and healthcare services or how universities can properly assist many of those who have received disabled students' allowance.

In addition, with no cases yet decided in the UK, it is difficult to determine what a "reasonable" university should do. However, institutions should start with staff training and the establishment of proper communication channels, taking account of rights of confidentiality that are likely to exist around disclosure of often sensitive personal information. They should take steps to promote an atmosphere of open disclosure by students and helpfulness by the university. And they should take time to consider what is reasonable as opposed to what is on the wish-list of a government body, pressure group or other vested interest.

Claire Milne is partner in the education law unit of solicitors Thorntons WS.


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