DEMOS Project - Module: Admissions

SENDA Issues relating to admissions

The following excerpts are from the SENDA Code of Practice available at:
http://www.drc-gb.org/drc/InformationAndLegislation/Page34A.asp

Policies and procedures relating to admissions of disabled students may be affected by sections of the act other than those mentioned here. Therefore, we strongly recommend that you refer to the Act and the Code of Practice directly if you are in any doubt.

Special Educational Needs and Disability Act 2001 Code of Practice

Section 2

Who has rights under the post-16 sections of the Act?

2.6 The Act applies to any disabled people (including those overseas) who are enquiring about or applying to a course, and any disabled students (including those overseas) attending, undertaking or enrolled on a course.

What activities do the post-16 sections of the Act affect?

2.13 The Act makes 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,
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.

Section 3

Admissions and exclusions

3.9 It is unlawful for a responsible body to discriminate against a disabled person:

...in the arrangements it makes for determining admissions or enrolments to the institution.

Example 3.9A

A college requires all applicants to fill out an application form by hand. It does not allow disabled students to type or use a helper to fill in the form. This is likely to be unlawful.

Example 3.9B

A university requires selected applicants to attend an interview. One applicant has a speech difficulty which gets worse when he is nervous. This means he needs more time to express himself. The university refuses to allow him any extra time at interview. This is likely to be unlawful.

...in the terms on which it offers to admit or enrol a person.

Example 3.9C

An adult education centre informs a student with epilepsy that he may not enrol on a course unless he has an assistant with him at all times in case he has a seizure. In the past the student has only had seizures during the night. The centre's demand is likely to be unlawful.

...by refusing or deliberately omitting to accept an application for admission or enrolment.

Example 3.9D

A university has many applications for a popular course. In order to cut down the numbers that the admissions tutor has to look through, the administrator sets to one side all applications from disabled students. These applicants are considered only if places remain after all other applicants have been considered. This is likely to be unlawful.

What about students who are not completing an entire course?

3.17 A student does not have to be undertaking a complete course to have rights under the Act. Someone who is enquiring about, applying to, attending or undertaking a course of study at an educational institution, however long or short the study period, is covered. This includes people doing single modules, evening courses or distance learning. Similarly, anyone enquiring about, applying to or enrolled on a course or using recreational or training facilities provided by a local education authority or education authority is protected by the Act.

Example 3.17A

A disabled student from the USA comes to a university in Britain to undertake a year's study for her junior year abroad. The British university has a duty not to discriminate against her during her period of study.

Section 4

Less favourable treatment

4.3 A responsible body discriminates against a disabled person if it treats him or her less favourably, for a reason relating to his or her disability, than it treats, or would treat, someone else to whom that reason does not, or would not, apply. In some cases, less favourable treatment may be justified. The reason for the less favourable treatment must relate to the disabled person's disability. The duty not to discriminate against disabled people or students by treating them less favourably is expected to come into force on 1 September 2002.

4.4 For a disabled person to be discriminated against in this way, a responsible body must have treated him or her less favourably in comparison with how other people are treated or would be treated. The reason for the less favourable treatment must relate to the disabled person's disability.

Example 4.4A

A dyslexic student applies to do a distance learning degree in English. The university tells her that they it does not accept dyslexic students on English degrees. The treatment she receives is less favourable compared to other students, and the reason for the treatment relates to her disability. The university is likely to be acting unlawfully.

Example 4.4B

A student with a hearing impairment applies to do a course in Dentistry. He is turned down because he does not have the right entry qualifications. His rejection is not connected to his disability, and so is not likely to be unlawful.

Less favourable treatment in admissions

4.11 The post-16 sections of the Act make it unlawful for a responsible body to treat a disabled person less favourably in the arrangements it makes for determining admissions to the institution or enrolments to courses.

Example 4.11A

An institution requires dyslexic applicants to a course to take a literacy test as a condition of entry. No other students are required to take the test. This is likely to be unlawful.

4.12 It is also unlawful for a responsible body to treat a disabled person less favourably in the terms on which it offers to admit or enrol him or her.

Example 4.12A

A university makes an offer of a place to a student who is a wheelchair user on the condition that she finds her own living accommodation locally. No other students have this condition placed upon them. This is likely to be unlawful.

4.13 Nor may a responsible body treat a disabled person less favourably by refusing or deliberately omitting to accept an application for admission or enrolment.

4.18 A responsible body should be proactive in encouraging people to disclose a disability. This might involve asking applicants to courses to declare their disabilities on application and enrolment forms. It may mean publicising the provision that is made for disabled people, or providing opportunities for students to tell tutors/teachers or other staff in confidence. It might involve asking students when they apply for examinations whether they need any specific arrangements because of a disability. It might mean explaining to students the benefit of disclosure and how this information will be kept confidential. It means ensuring that the atmosphere and culture at the institution or service is open and welcoming so that disabled people feel safe to disclose a disability. If the responsible body might reasonably have been expected to know or find out about a person's disability, then it cannot claim that it did not know.

Example 4.18A

A man with a medical condition that causes fatigue and subsequent loss of speech control applies to a university for a postgraduate degree. The application form does not ask whether he has a disability nor whether he would have any particular needs when attending interview. He attends an interview, during which he is very listless and his speech is very slurred because he is tired from the journey, and the selectors turn him down because of this. He mentioned at the interview that he felt tired but the panel ignored this. The admissions office made no attempts to find out whether the applicant had a disability. Because this information might reasonably have been known, the selector's treatment of the applicant is likely to be unlawful.

The maintenance of academic standards

4.26 The Act does not require a responsible body to do anything that would undermine the academic standards of a particular course. A responsible body may be able to justify less favourable treatment if it is necessary to maintain these standards.

Example 4.26A

A young man with learning difficulties applies to do a Biology degree. He does not meet the entry requirements for the course. The university talks to the college where the man had previously been studying and concludes that, even if reasonable steps were taken to eliminate any disadvantage caused by his disability, there would be no prospect of his completing the degree course successfully. Although the lack of entry requirements is related to the man's disability, the institution is likely to be justified in rejecting his application because to accept him would be to undermine the academic standards of the course.

4.27 The academic standards reason should not be used spuriously. Where elements are not central or core to a course, they are unlikely to provide a reason to justify discrimination based on academic standards. Nor can academic standards be used as justification for barring whole groups of disabled people from courses or services. Any justification has to be relevant to the academic standards of a particular course and to the abilities of an individual person.

Example 4.27A

A severely dyslexic student applies to take a course in Journalism. She does not have the literacy necessary to complete the course because of her dyslexia. The college rejects her, using the justification of academic standards. This is likely to be lawful.

Example 4.27B

The college now introduces a policy of rejecting all dyslexic applicants to Journalism. The policy does not allow course selectors to consider different levels of dyslexia, the ability of individual applicants or the range of possible adjustments. This is likely to be unlawful.

The maintenance of other prescribed standards, prescribed types of treatment and treatment in prescribed circumstances

4.28 The Act allows for future regulations to list any standards, treatments or circumstances that may also provide reasons to justify less favourable treatment.

Reasons that are material and substantial

4.29 Less favourable treatment may also be justified as long as the reasons for the treatment are both material to the circumstances of the particular case and substantial.

4.30 To be material to the circumstances of the particular case, the reasons have to relate to the individual circumstances.

Example 4.30A

A student with emotional and behavioural difficulties applies for a college course. He has previously been on a link course to the college and staff know that he is extremely disruptive and makes a great deal of noise during classes which prevents other students from learning. During his previous periods in the college, tutors tried to make adjustments for him, but these were not successful. The college approaches the school, which confirms there has been no change in his behaviour. The college decides that they cannot accept him on to the course. The reasons for the failure to admit him relate to this particular student and his particular behaviour patterns. For this reason, the college is likely to be acting lawfully in rejecting the student.

4.31 A reason also has to be substantial and not just minor or trivial.

Example 4.31A

A student with autistic spectrum disorder applies for a course. The student can be disruptive, and sometimes will talk inappropriately during classes. However, her interruptions are not much more than those made by other students, and when she has an assistant with her, her behaviour improves. There is unlikely to be any material and substantial reason to justify not admitting this student.

Example 4.31B

A blind woman applies to do a Forensic Science degree. Although she can undertake some parts of the course, she cannot see enough to undertake the parts of the course which involve visual analysis of materials. This is a core component of the course. The college is likely to have a substantial reason to justify not accepting this student.

Example 4.31C

A deaf student applies to do a college course. She communicates through sign language and would need an interpreter for all her classes. The college approaches the interpreting service which provides support for its other deaf students, but because of high demand that year, the service is unable to support this additional student. The college makes wider enquiries, but is unable to find the services of an interpreter or communicator. Because it is not possible to make the necessary adjustments for her to gain access to the course, the college does not accept her application. This is likely to be a material and substantial.

What adjustments might responsible bodies need to make?

5.8 The Act does not define what 'reasonable steps' an institution should take. However, the purpose of taking the steps is to ensure that the disabled person or student is not placed at a substantial disadvantage. Responsible bodies should consider a wide range of adjustments. In some cases there may be financial or other support available from elsewhere to help provide the adjustments.

Example 5.8A

A college insists that all potential students sit a basic English test before being admitted onto a particular programme. The test lasts an hour. A disabled person applies for the course. She has severe back pain when sitting still for long periods and needs to be able to get up and move around. The college arranges for her to sit the test in a separate room so that she can do this. This is likely to be a reasonable adjustment for the college to make.

Disclosure and reasonable steps

5.10 If the institution did not know and could not reasonably have known that the student was disabled, then failure to make an adjustment for a disabled person or student is not discrimination.

5.13 If the disabled person has told someone within the institution or service about his or her disability, then the responsible body may not be able to claim that it did not know.

Example 5.13A

A student declares her disability on her application form. Once she is enrolled on a course she receives none of the support or adaptations that she needs. The tutor claims she does not know that the student is disabled. However, because the student has disclosed her disability, the institution cannot claim it does not know about it. The failure to offer support and adaptations is therefore likely to be unlawful.

5.14 If the responsible body might reasonably have known or found out about a person's disability, then it cannot claim that it did not know.

Example 5.14A

An applicant does not declare his disability on his application form. When he calls up to confirm his attendance at a selection interview he talks to the admissions officer via Typetalk, the telephone service for deaf people. The admissions officer does not ask the applicant if he will need any adaptations to the selection interview and fails to alert the interviewers for the course that the applicant may be deaf. The interviewers do not realise that the applicant is deaf and do not take any steps to ensure that the interview is accessible to him. The responsible body might reasonably have known that the student had a disability. The failure to offer adaptations is, therefore, likely to be unlawful.

5.15 A responsible body needs to be proactive to encourage people to disclose a disability. This might involve asking people to declare their disabilities on application and enrolment forms. It may mean publicising the provision that is made for disabled people, and then providing opportunities for people to tell tutors, teachers or other staff in confidence. It might involve asking students when they apply for examinations whether they need any specific arrangements because of a disability. It means ensuring that the atmosphere and culture are open and welcoming so that disabled people feel safe to disclose a disability. The Department for Education and Skills has issued guidance covering the action responsible bodies might take to find out about a person's disability.

Can a responsible body justify the failure to make a reasonable adjustment?

5.16 There may be rare occasions where a reasonable step might be taken, but there is a justification for not taking it. If this is the case, then the failure to take the reasonable step is not considered discriminatory in law. The failure to take a reasonable step can only be justified if the reasons are both material to the circumstances of the particular case and substantial.

Example 5.16B

A man with limited mobility applies to do a degree in Civil Engineering. The course leader meets the student and feels that she would be unable to practice as a civil engineer because of her disability. For this reason he decides that it would be inappropriate to make adjustments to the course and so recommends that her application is rejected. The degree course is not, however, directly vocational, and not all graduates from the course progress on to become engineers. There are therefore unlikely to be material reasons for failing to make reasonable adjustments.

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