This annex contains guidance on the application of the principles of the Equality Act 2010 to the assessment of disabled students. The Act requires consideration of reasonable adjustments that might be made to support disabled students.
A disabled person is someone who has a physical or mental health impairment, which has an effect on his or her ability to carry out normal day-to-day activities. That effect must be substantial; adverse; and long-term (has, or is likely to, last for at least a year or more). This encompasses individuals with a wide range of impairments, including physical or sensory impairments (e.g. certified blind or partially sighted by a consultant ophthalmologist.); chronic diseases (e.g. epilepsy, arthritis, HIV, multiple sclerosis, cancer); mental ill health or specific learning difficulties such as dyslexia.
The duty to make adjustments arises where a provision, criterion or practice, any physical feature of the education provision, or the absence of an auxiliary aid or service puts disabled students at a substantial disadvantage compared with students who are not disabled.
This duty to make reasonable adjustments is an anticipatory duty owed to disabled students in general; it does not only arise when an individual disabled student discloses a disability to the University.
Giving careful consideration to the purpose, design and mode of delivery of an assessment event, so that it is accessible to as many students as possible will reduce the need to make numerous reasonable adjustments for individual disabled students and should ensure compliance with the anticipatory duty. Nevertheless there may still be circumstances where reasonable adjustments will be required for individual students. Each disabled student will have different needs and reasonable adjustments must be determined and applied on an individual basis. It cannot be assumed that one type of adjustment will support each student with a similar disability; what works for one may not work for another.
The Act does not specify that any particular factors should be taken into account. What is a reasonable step for a particular education provider to have to take depends on all the circumstances of the case. The following are some of the factors which might be taken into account when considering what is reasonable:
Those charged with the design and delivery of assessment events should develop a policy as to how they would assess disabled students. This should be sufficiently flexible to be able to respond to any request for a reasonable adjustment at any stage of the academic year.
Where the duty to make reasonable adjustments arises, an education provider cannot justify a failure to make a reasonable adjustment. However, the Act does place specific restrictions on the duty in relation to higher education institutions. A higher education institution will not be required to make any reasonable adjustments to the application of a competence standard (see section 2).
The reasonable adjustment requirements of disabled students are wide-ranging and include changes to provisions, criteria or practices, the provision of auxiliary aids and services and making adjustments to physical features. A provision, criterion or practice does not include the application of a competence standard. Therefore, the duty to make reasonable adjustments does not include a duty to make reasonable adjustments to the application of a competence standard. Understanding the concept of competence standards, the teaching and testing of such standards has important implications for curriculum design, delivery and assessment as well as for admissions procedures in those programmes where they are relevant.
A competence standard is defined as:
‘an academic, medical or other standard applied by or on behalf of a responsible body for the purpose of determining whether or not a person has a particular level of competence or ability’.
These standards may be prescribed by an external professional body (e.g. medicine and veterinary science) and may be linked to fitness to practice. There is no duty to make reasonable adjustments in respect to the application of a competence standard (or a learning outcome), although such a duty is likely to apply with respect to the processes by which the competence is assessed. It is, therefore, extremely important to identify at the outset whether a learning outcome or requirement is a justifiable competence standard. The following are examples which are unlikely to amount to competence standards in most cases:
Should something be considered a competence standard within a programme, the Programme Director should evaluate the specific purpose of the competence standard and ascertain whether it is legitimate. The adverse impact that applying the standard has, or could have, on disabled students must also be examined. Providers should determine whether or not a standard is justifiable and therefore lawful by considering all alternative, less discriminatory or non-discriminatory standards.
When the purpose of an assessment is to determine a student’s competence in a particular area, the assessment event must be rigorous so that all students are tested against a benchmark. But, similarly, if they are to fulfil their purpose, assessments should also be flexible regarding the mode of measurement of attainment so that each student has an equal opportunity to demonstrate their competence. This means that one should be precise about what is being assessed so that the necessary reasonable adjustments can be made without compromising the competence standards and in some instances it may require changes to a current assessment practices.
Discrimination as the result of the application of a competence standard is justified, but only if it can show that the standard is (or would be) applied equally to people without a particular disability and that its application is a proportionate means of achieving a legitimate aim. The intended learning outcomes for a unit or programme must be made clear so that students know whether they are meeting the professional requirements of the qualification. The following case studies illustrate these points:
A disabled student with a mental health problem is informed that an oral examination for her German course has been arranged for 8:30 am. The timing of the examination would cause substantial disadvantage because a side effect of her treatment is several hours of extreme drowsiness and impaired concentration following medication. The timing of the exam is not linked to any competence standard so her request to take the examination later in the day is likely to be a reasonable adjustment.
University Y runs an MBA where one of the criteria for successfully completing the programme is ‘speaking clearly in a business environment’. A disabled student with speech impairment does not achieve the qualification because of this criterion. Applying this standard may be unlawful because this is not a vocational programme and so ‘speaking clearly’ would not be a major learning outcome nor a major part of the programme.
An applicant for a veterinary degree has a disability impacting on her ability to cope with the practical elements of the programme, and asks if somebody could undertake the practical aspects of the programme under her direction. The ability to be able to perform a complete clinical examination is a fundamental learning outcome. It is also a competence standard set by the external professional body, the Royal College of Veterinary Surgeons. In this case, the requirement to make reasonable adjustments would not apply as this is a justifiable competence standard.
A disabled student requests twice as much time for a test of shorthand because his disability makes it impossible for him to write quickly. There is no requirement to make this adjustment because speed is an essential element of the shorthand qualification – i.e., it is likely to be a competence standard, and thus the duty to make reasonable adjustments does not apply.
In order to assess a student with disability fairly, reasonable adjustments should be made to assessment practice. Decisions about what (and how) these adjustments might be should be made in conference with the student concerned. However, it is recognised that in some programmes (e.g. professional) some assessments cannot be adjusted as they test mandatory learning outcomes.
Students should be made aware that in order to determine what reasonable adjustments should be made on the basis of disability, in some cases they may need to provide an appropriate recommendation relating to the impact of the disability, from an external independent professional. This would not apply to cases where there was already evidence on file relating to the student’s individual circumstances.
In order to determine what reasonable adjustments should be made on the basis of disability, satisfactory evidence has to be provided sufficiently in advance of the date of the assessment to allow enough time for the practical organisation of the required reasonable adjustments. Therefore, the independent, professional assessment impact of the student’s disability must be undertaken at the earliest possible opportunity. The co-ordination of such assessments should be led by the University’s Disability Services.
Staff should refer to the University Guidance on Alternative Examination Arrangements for more information on evidence that may be required.
The Organisational Development Manager (Diversity) Tracy Brunnock 0117 33 17029 provides advice on the implications of the Equality Act on assessment practices.
Disability Services provides general information and advice to staff on disability issues, including mental health and works with schools to develop Personalised Learning Support Plans for disabled students. It provides a range of support services for individual disabled students and “listening ear” service for students with mental health difficulties.
Disability Services Manager: Lou Miller 0117 33 10457 email@example.com