Following the High Court’s ruling in the Abrahart case, it’s clear that there is still significant confusion within the sector on what was actually decided and what every provider is required to do as a result.
In the case, the University of Bristol argued that the use of oral assessment was to test a core “competence standard” in its award – effectively suggesting that in order to be a physicist, you needed to be able to speak publicly about the subject and to some sort of “professional standard.”
Steven Hawkings, world famous physicist, is an obvious good example of why this sort of thinking is problematic – but on the ground, it is clear that the application of the principles involved is still proving to be difficult.
In both the Equality Act 2010 and EHRC’s note pertaining to it, everything should be subject to reasonable adjustments except a competence standard.
A Lot of the difficulty has been conflating competency with competence
Competency is the skill or ability being tested. Competence is an objective measure of the level of that skill – anywhere from low, could be much better, at X – to prefect, no improvement could ever be made.
And a competence standard is the desired level of that skill which is reached to pass a test, so more akin to a binary, someone must be able to do X to an objective level – or else you fail.
The issue in the case was that nobody could define, or had written down, the standard of speaking that was needed to pass.
EHRC advice is that the law suggests that such standards should be kept to a minimum and there should be as few as possible – and some courses will have none.
And crucially, while universities may not have to make adjustments to legitimate competence standards, they do have a duty to make adjustments to how any competence standards are assessed.
Breaking it down
In essence, all competence standards should be able to meet and list these components:
- Skill or Ability: a defined skill that’s required (not a level of skill, the actual skill)
- Measurable: You have to be able to measure whatever skill you’re requiring
- Metric : It has to be clear what you’re measuring it with (with a degree of objectivity – not just “I think it’s about right”)
- Standard: The measurement that would be pass / fail.
Without that last component, the whole exercise would be wasted – and crucially, there is a duty to tell all students what these competence standards are before they enrol.
If the skill isn’t upfront and required on enrollment, it will be required to teach this skill before assessment. E.g presentation skills.
So whether you’re an academic, a module leader, an SU rep or a practitioner, it’s worth running through the above tests in relation to a given module or programme.
The problem is that many would say that a 40 per cent pass mark for a course would be their “competence standard”, but there’s an issue with this thinking.
I might get 10/10 on everything but one marking criteria and be dismal on X – and still meet the 40 per cent threshold. In that scenario, X wasn’t a required skill. And so it can’t be a competence standard.
The pass mark is not a legal competence standard, it mixes up the concept of competence with academic performance measures. If it’s an arbitrary academic threshold that varies between institutions, courses, and contexts. It doesn’t necessarily reflect an objective standard but rather a performance metric set by the institution.
Put another way, competence standards relate to whether someone can carry out essential tasks, not whether they achieved a certain score on an exam.
Examples of competence standards
As I see it, there are only ever 5 types of reasons something would be a competence standard.
1. Health and safety: It would be genuinely unsafe not to meet this, and no amount of reasonable adjustments would ever change that. If your degree requires you meet a health and safety standard, such as a medical qualification, then it has to be done. This may apply to other safeguarding requirements such as DBS checks for teacher training.
2. Interaction: There is some form of interactive requirement for your field. Communication is an example of this, but sometimes a degree may require some form of physical interaction with say a piece of equipment intrinsically linked to a skill.
This can either be one-way or two-way – where one-way is when the student does something in one way, but is not required to respond to any external stimulus given. Most degrees will require some form of one-way interaction, but it’s important that the method of interaction could still be subject to reasonable adjustments.
You can write, speak, do it in person – to a camera whatever, you’ll need to provide this flexibility. The danger here is just listing “communication” as a standard. If you can’t give a specific measure for the standard, saying “hello my name is blank” would be enough to pass this standard.
Two-way interaction is less common, but it’s when a skill can only be done if you both have to give and take in something. The most common example comes from performance courses – in a music degree you may have a Duet module. There is no way of genuinely implementing the skill of ensemble playing without the people in questions both interacting with one another.
But the method of interaction is again completely interchangeable. The time, place, location, method, instrument, in-person, online – all of that is changeable. This is important for students who struggle with group work. An easy adjustment we might give for this sort of issue is changing who they interact with. A duet can be with anyone, so a provider could bring in an accompanist professionally if there were issues with student groups.
3. Real-time: This is where you’re either assessing a real time skill or there is a timed element beyond control.
An example of a real-time skill would be real-time interpretation – the skill is intrinsically linked to doing something in real time, no matter the quality of translation, it could only be done in real time.
Many elements beyond the control of providers are medical, so are health and safety concerns – do this quickly or someone gets hurt. Another one is bomb disposal – regardless of your ability, the clock will be ticking. In an art or construction course, a student may be required to finish a task before glue dries. These are timed elements that are beyond anyone in the room’s control.
A common fallacy is that “everyone needs to do this assessment in a given time frame”. But that “need” is often an administrative concern masquerading as an academic standard. To be real-time, the need needs to be outside of a provider’s control.
4. Motor and sensory: This is a physical ability requirement, and would only apply where the medium or skill you’re working in could never be done any other way.
Some sensory skills examples are dentists needing to see into a patient’s mouth, or If you’re studying a food tasting course, you may need some ability to taste food – although even then, an adjustment for a lot of these sensory issues may be to have someone describe it on your behalf. A colour blind student can still be a painter, and a deaf person can still be a musician. It is a very slippery slope – so anyone relying on it would need a very strong argument for it.
That’s similar for motor skills – a surgeon has to have a level of motor skill to safely work a scalpel, and a dentist needs to be able to use specific tools. It might also refer to a certain level of physical health similar to the army’s – which also lists good examples of the earlier components test.
If you still think a course or module has some physical requirement, it’s worth thinking about the paralympics and the sheer level of adjustment and support given to these athletes – again the reason has to be incredibly strong.
5. External or regulation: There are some external standards that are pre-existing for a skill that is required to claim a qualification, or a law/regulator says something is required.
An example of this is the standard of English – in the B Conditions, this is an OfS mandated standard for UK higher education in England, and not subject to the whim of the provider.
To rely on these, they have to be external standards – because for internal ones, if you set the rules, they’re your rules to change. It has to be beyond a provider’s control.
Oftentimes, professional accreditation or a PSRB framework is the reason why something can’t be adjusted – an external standard that anyone working in that profession “has” to meet. But the majority of courses have academic standards, not professional ones.
It may be that a professional accountant is required to have registered with a regulator, but for an accounting degree you’re not genuinely practising the profession, only learning and academically applying that knowledge, so you don’t need to meet that external requirement for the degree.
It may be that you later go on to work as a professional, but a large number of students end up in other employment. Clearly in some courses a student might meet X standard academically but not reach a professional accreditation standard.
This is already common in the medical field – you can have a “name of medical degree here” or if you don’t meet a requirement of the relevant medical boards – so only apply it academically, you can still get a degree in bio sciences.
And even if there is an external standard, if it’s not a regulatory or legal requirement, and only a desirable professional one, it’s still subject to the Equality Act – this means the external body has to be able to justify it, so the provider can.
Because if their standard isn’t compliant, and the provider is the one applying it, it’s the provider that’s in court – not the professional body.
What really matters
Some may say that my list of categories is narrow, and reason that constantly changing things is difficult. That’s because to some extent, competence standards are a red herring. In a way, the only thing that matters is what’s reasonable to do until you’re unable to support any further.
Competence standards exist to protect the rights of the students, not institutions. They do this by establishing that virtually everything should be adjusted.
That’s not to say that a student isn’t allowed to do badly or that we should wipe away academic requirements for students. But the point is that a failure shouldn’t usually be because of something outside of their control.
The duty is to keep making adjustments until a disability is no longer a factor – or it would be genuinely impossible to provide support. The duty is to keep making adjustments until that limit is hit.
This matters in general – but it matters even more as providers move to save money by reducing elective choice. Because modules that are mandatory need to be looked at in a specific light in a given framework.
It’s compulsory. Or is it?
In the Abrahart case, one of the issues was that regardless of any display of skill, the laboratory experiments modules and their assessment method (oral presentation) were compulsory such that in the framework, failing them individually would have meant being kicked off the course, dismissed from the university, with debt incurred.
But unless what was required in those modules was required for every single other aspect of the degree, there was no need for them to be compulsory in that way.
In order for a level of knowledge to be a competence standard it would have to be a piece of information that everyone with that qualification has to know. Let’s take history – If you can think of one thing that is required for all historians to know in order to be called a historian, then I’d love to hear it. This applies to maths, geography, music, humanities, sciences, arts. I struggle to think of anything not covered in my earlier competence standards categories.
If the standard for obtaining a degree is to bank a certain number of credits, how those credits are earned becomes important. If a programme has multiple 30 credit modules, one of which is hard for a student to access, switching modules can be a reasonable adjustment.
I initially began my degree in music performance, but switched to composition in my final year, making my degree in composition. Any performance modules I took don’t make me less eligible for a degree in composition and the highest level of assessment was still in composition. The only requirement was showing somehow I could meet that final year standard, and that didn’t have to be via formal assessment.
This should always be an option and should continue to be so until a provider no longer has modules or alternatives that could viably lead to the sort of award a student has enrolled on to. Even if timetabling prevented a university from offering a different module, a student should not have another year’s worth of debt (or associated costs) because a provider failed to provide them with an adjustment- that could amount to direct discrimination.
The final adjustments
Maybe, in trying to adjust to allow a student to access their degree, a provider exhausts all options – maybe there’s no more modules a student could do, or a notional “reasonable” financial limit has been reached. There’s one final option. Why do they have to earn those credits at institution X?
A reasonable thing might be to sit a module elsewhere and transfer those credits back.
And if a qualification still has a compulsory element, and no other university in the country has it, it’s hard to see how its content can be a competence standard in a field – adjust, or remove the compulsory element.
This has all been about what providers need to do for disabled students. But as they’re requirements of the Equality Act, discrimination applies to all other protected characteristics. For religion, if someone said you couldn’t leave the room for prayer, a provider may face a complaint or a court case unless it was able to demonstrate some binary essential need to say no.
Meaning that – competence standards would also have to be something you wouldn’t be willing to change for a religious reason.
When it comes to discrimination – we don’t need to ask twice – yet it’s not uncommon to repeatedly ask students to disclose in full what their disability is, or repeatedly demand new doctors notes for repeats of the same forms. Think of how much time could be saved for students, institutions, and NHS staff to believe the student from the outset.
Overall, courses need to be structured to allow student flexibility in how they access both curriculum and assessment. That may require some minor changes, some capacity to do things that are not often done, some re-assessment of module handbooks at quality reviews this year, or staff training on the practicalities of the above.
In an ideal world, the Office for Students would regulate in these areas – although a regulator focussed on enabling the sector might convene a national list of examples rather than just finger-wag and threaten. It might also use its convening power to address the mess of only some Subject Benchmark Statements spelling out subject competences, and only some PSRBs being clear on what are and are not professional competence standards.
And it itself should actively consider where some feel that the application of the B Conditions prevents them from reasonably adjusting a programme.
It’s also worth thinking about the type and nature of academic governance required to achieve change. The critical self reflection needed to shift both learning and workplaces may not be delivered by structures that are overly focussed on compliance and assurance. The disabled student commitment may help provide this.
But however little time there is and however tough things get financially in the sector, these are not optional extras. It’s the law, and rightly so. If anyone honestly believes that meeting the requirements of the law is beyond theirs or their provider’s capacity, they should consider whether they should be operating the course at all.
