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Managing Student Disabilities in Higher Education Institutions

on Friday, 08 April 2022.

In this article we consider the complexities that make managing student disabilities an ongoing challenge in higher education and changes that can be expected in the months ahead.

Managing Student Disabilities in Higher Education Institutions

Student disabilities are an established challenge in higher education. Continued growth in student numbers as well as an increasing proportion of students disclosing physical and mental needs before they start their course means this is unlikely to change.

The way that disability issues affect all aspects of the student experience heightens their importance. So too does the public sector disability duty, which creates an obligation to advance equal opportunities and encourage good relations between people who share a protected characteristic and people who do not. 

Anything which has an impact throughout the student lifecycle requires a pervasive response, particularly where it is known that disabled students experience more obstacles than their non-disabled peers and have worse outcomes. 

Why Is Managing Disabilities Complex?

Part of the reason why disabilities are difficult to manage is that they involve a range of duties and impact on a number of different processes. The need to protect academic integrity and competence standards remains, as does the duty to consider the impact that making adjustments can have on other students. It is not uncommon for students with disabilities to present significant welfare concerns or for related procedures such as Fitness to Study to be triggered. Striking a balance between the needs of students with disabilities and the constraints imposed by funding and assessment requirements is a challenge it may never be possible to fully resolve.

What Are the Legal and Regulatory Obligations?

In simple terms, the obligations higher education institutions owe to their students arise from four sources: 

  • a duty of care, assumed via the relationship between the parties, imposing on institutions a minimum standard of care based on reasonable competence
  • contractual responsibilities, via a student agreement and associated policies and procedures
  • primary and secondary legislation, such as the Equality Act 2010, which create a range of proactive obligations, including the public sector equality duty
  • the impact of regulation and the possibility of intervention for those institutions subject to conditions of registration

Considering Sector Regulation

In England, a requirement to support disabled students is embedded in the registration regime overseen by the Office for Students (OfS) under the Higher Education and Research Act 2017. The 'E conditions' of good governance require the demonstration of effective management and governance, including compliance with the public interest principles and with equality and diversity legislation.  The OfS also monitors registered providers via their Access and Participation Plans, which must contain appropriate commitments to increase numbers and improve the outcomes for underrepresented groups such as those with disabilities.

Enhanced Vulnerability

A useful way of understanding why higher education is more challenging for disabled students is to consider the nature of the issues that affect them. Some, such as poor teaching, can impact all students. Others, such as not having access to the right information can impact disabled students more. And then there are issues which only affect disabled students, such as problems with needs assessments or DSA funding. All of which shows the additional barriers that disabled students face and helps to explain why it is so important to address them.

The Involvement and Impact of the OIA

It has long been known that disabled students submit a disproportionately high number of complaints to HEIs and to the OIA. Since it was launched in 2017, the OIA Good Practice Framework has included a section on how to support disabled students and trends in complaints from this group feature prominently in OIA Annual Reports.

An issue that often arises when HEIs are faced with discrimination complaints and referrals to the OIA is the approach that should be taken given the potentially complex and legalistic issues involved.

The OIA is clear that its role is limited to reviewing complaints and determining if a provider's decision was reasonable in the circumstances. This review process is not to be conflated with that taken by a court dealing with a discrimination claim, which is more rigorous and adversarial. That would also involve proof of contested facts, application of legislation, the establishment of legal rights and obligations and the award of legal remedies, such as damages and declarations. Determining whether discrimination has occurred requires the more stringent and structured procedures of civil litigation, and is not an outcome students should expect from HEIs via a complaint alone. 

What we can learn from OIA decisions regarding disability related complaints is that it is reasonable for HEIs to expect students to seek support, seek a diagnosis and evidence and to progress their complaints. It is also reasonable for students to expect HEIs to reduce application bureaucracy, avoid passing on costs, explore how to modify procedures and provide adjustments and to record that this has been done. Demonstrating that such steps were taken has often been the deciding factor in OIA referrals being deemed not justified. 

Given that these principles were developed before the pandemic, it is also important to remember lessons learned from lockdown and the ways in which HEIs proved procedures and provision could be modified quickly. The implementation of adjustments such as no detriment policies and suspension or reduction of evidence requirement when gauging need means that some of the barriers that once had a disproportionately negative effect on disabled students could be a thing of the past. That being so, it would be surprising if the approach of the OIA to complaints involving these issues in future does not reflect this shift.  

What Changes Can We Expect?

The OfS recently announced new ongoing conditions of registration relating to Quality and Standards (the B Conditions) which will come into force on 1 May 2022. New condition B2 is designed to address both academic experience and attainment in and beyond higher education. Inclusion of the words 'support' and 'engagement' is indicative of an intention to assist students from disadvantaged groups, including those with disabilities. Reference to attainment after graduation is an acknowledgement of the need to recognise the full student life cycle and is also consistent with the National Disability Strategy.

The scope of the duty of care that HEIs owe to their students has been subject to debate for some time. The treatment of students as consumers and moving parameters of vulnerability mean that it is no longer clear what a reasonable standard of care means in this context. The prevalence of mental health issues amongst students which often meet the legal definition of disability under the Equality Act 2010 means that these are likely to be key to the development of institutional responsibilities in this area.

Litigation may soon address these points, providing further clarity on what students (and their parents) are entitled to expect from HEIs. Given that this could increase the burden placed on institutions which are already struggling to cope with student welfare issues, it will be important to scrutinise both case outcomes and judicial commentary to ensure that policies, procedures and practices manage risks appropriately.

For more information on this disabilities in higher education, please contact Kris Robbetts in VWV's Higher Education team on 07795 662796, or complete the form below.

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