EHRC sharpens its stance on sector failings over disabled access

Many in the sector regard the “Abrahart case” as one that was fundamentally about the “duty of care” debate.

While that was a central issue (albeit one without a clear conclusion), it was also – and more conclusively – about disabled students and the duty to adjust to enable what are close on 40 per cent of students to access their education and be treated fairly.

Having intervened in the appeal, the Equality and Human Rights Commission has published a short – yet quietly damning – “advice note” on implications arising from the case.

The note is in two parts. The first reminds readers what the court found in relation to the specific case. The second covers what the EHRC thinks compliance with the law looks like now. It’s that second half that I’ve focussed on here.

Oh we ignore that

The first bit of compliance is an expectation that processes and procedures, as well as common practices (including academic, administrative and relating to ancillary services, for example accommodation) are compliant with the Equality Act 2010.

This is significant because I’ve lost track of the number of universities that assure themselves at senior level that something should be happening, but then rely pretty much solely on complaints to work out if it is or not.

A “pass” on “common practices” would involve auditing and sampling – and at the very least deep diving on the complaints that do come in.

I, for example, remain baffled that a student can be in a position where they work out a plan with a service that enables access to education – only for most universities to never check in with the student to see if the plan is being followed.

The next is that universities should ensure all staff are trained on their duties under the Equality Act 2010:

This includes academic staff, administrative staff with student facing roles, accommodation and support staff and members of staff responsible for addressing appeals, complaints and fitness to study procedures.

If I had a pound for every time I’ve come across a training strategy that was optional – pretty much guaranteeing take-up only from those who don’t need it – I’d be on a beach.

On this, EHRC adds:

This should include being trained on the duty to make reasonable adjustments before a full assessment by the Disability Service has taken place, in urgent or serious situations.

That relates to a running theme in the case and the advice – a formal diagnosis and a formal assessment from a dedicated service might take time, and EHRC’s interpretation is that that shouldn’t mean a student has to wait until that’s done for adjustments to be put in place.

EHRC also says that student-facing staff should be trained to recognise symptoms of mental health crises and “trained to know what to do next to obtain support for the student and remove additional stressors such as deadlines”.

Staff, it says, should be reminded that where a student has a severe or urgent condition, reasonable adjustments may be made without a diagnosis or medical or expert evidence.

I think that’s interesting for two reasons. First, because the call for a “duty of care” was never about academic staff or universities acting “in-loco parentis” – it was about all staff reaching a minimum and appropriate level of competence.

But also because EHRC is saying that the above is pretty much what the law expects. There are important debates about pastoral academic care and how far it should go beyond the strictly “academic” – but EHRC is saying that part of this isn’t up for debate. The above has to happen. Pass, or fail.

Clearing up confusion

There’s a useful reminder that students who are not eligible for Disabled Students’ Allowance may still be disabled under the Equality Act – and universities may have a duty to make reasonable adjustments for those students, for example where a student does not have a confirmed diagnosis of a disability.

That’s important – evidence suggests that many in universities confuse the two things – not least because while EHRC reminds us that “many reasonable adjustments have little or no cost implications”, many have more significant implications.

I noted a few weeks ago that only 1 in 10 international students in the HEPI/Advance HE Student Academic Experience Survey self-declare as disabled. There might be all sorts of reasons for that – but the lack of Disabled Students Allowance entitlement, plus the additional costs that would load onto a university must be at least a part of it.

The insistence on diagnosis that is front and centre on many a university webpage could also be a problem. EHRC says that when a student does not have a diagnosis of disability, but staff are concerned that the student is struggling or failing to engage:

…staff should take steps to determine whether a student may have a disability and whether to put reasonable adjustments in place.

That’s partly because the court said that:

…where the evidence of a disability is apparent from the student themselves, for example through their behaviour or language, the education provider has knowledge of the student’s disability. The education provider can therefore be found to have discriminated against the student on the grounds of their disability.

That, of course, reinforces the need for training.

The sort of steps that EHRC references are include consideration of what the student says about their disability or health condition and how they present when speaking to staff and peers – and their behaviour may also be taken into consideration, “for example, attendance at lectures, submission of work, general engagement with courses and other activities and whether there are discrepancies between certain modules or formats of assessment.”

That does require a level of “noticing” that I fear the economics of many programmes simply doesn’t support – something that the sector is also loathe to admit.

When things go wrong

This is important – providers are told to put in place specific “escalation procedures” where staff fail to put in place reasonable adjustments – and “it should be possible for staff or students to implement these procedures”.

Again, if I had a pound for every time a disabled student told me that they’d met hostility from a department over the adjustments agreed…

That sense that disability expertise shouldn’t reside only in disability departments is also emphasised in a recommendation that providers should ensure that a list of “common reasonable adjustments” is available to academic staff as well:

“This can include common reasonable adjustments by impairment type. It should focus on individual reasonable adjustments for individual students as well as anticipatory adjustments for groups of students.

And crucially, on that diagnosis issue, providers are told to amend reasonable adjustments policies to ensure that staff and students are aware that reasonable adjustments “must be made” even where a student has not engaged with a disability service if there is an urgent or severe need to do so – or the circumstances of the case demand it.

Formal external medical diagnosis can take a very long time, or cost a fortune. Students neither have the time nor money, folks. So relying on external medical diagnosis as a trigger to adjust, in EHRC’s eyes, is text book discriminatory as a result.

For Disability Services staff under pressure, providers are also told to ensure the service can meet its duties under the Equality Act 2010 in a “reasonable and timely way”. And where adjustments can’t be put in place in a timely way, EHRC says providers should consider allowing students to re-sit or re-submit assessments without applying for academic appeals – and should publicise this policy to students.

That’s because asking students who a university “knows” are disabled to rely on extenuating circumstances is, again, discriminatory given the stress it can cause.

Much of all that is going to need some serious rethinking at a policy level – and some serious hard graft implementation on the ground. But it’s not an option – and no, there’s not an alternative interpretation.

Assessing the assessment

Given what happened in the case, there’s also quite a bit of material on “competence standards”. As a reminder, in the Abragart case, the university argued that the method of assessment – an oral assessment – was a competence standard and therefore outside the parameters of the Equality Act 2010.

The judge disagreed – and EHRC have bodied down the decision making handily as follows:

• Methods of assessment, by which we mean the manner or mode in which a student’s level of knowledge or understanding or ability to complete a task is tested, will rarely, if ever, amount to a competence standard.
• They will therefore rarely, if ever, be outside the duty to make reasonable adjustments. A competence standard is an academic, medical or other standard applied for the purpose of determining whether or not a person has a particular level of competence or ability.
• The key questions for deciding if part of an assessment is a competence standard are:
  • What skill, competence, level of knowledge or ability is being measured?
  • What standards are being applied to decide whether a student has met the required level of that competence or ability?
  • What parts of the assessment are the method by which the student’s ability to meet the standards at (b) is tested?

Implementation expectations here are interesting. EHRC expects providers to review course criteria to check that competence standards are clearly defined, explained and justified – and that methods of assessment are not wrongly described as competence standards.

That will need a proper and laborious audit in many universities.

It says that where competence standards are set by Professional and Statutory Regulatory Bodies (PSRBs, for example the Nursing and Midwifery Council) universities should clarify with the PSRBs that the standard of attainment is being examined, not the method of assessment, or that the method of assessment is a key part of the competence standard.

If an assessment can’t be adjusted after that discussion, there are hard conversations about recruitment and student suitability that still need resolution – especially if a student becomes or realises they are disabled while on programme.

It does however add that methods of assessment should be adjusted to still test the relevant competences while accommodating disabilities:

Ideally, compile a list of replacement types of assessment to accommodate specific disabilities. For example, for anxiety conditions consider allowing written answers via a messaging platform rather than oral answers, presenting to a small group or one to one or changing venues and times to accommodate reasonable adjustments. Other more relevant methods of assessment will be required for other forms of disability.

It’s also recommending that appeals and complaints staff are trained to distinguish between a competence standard and a method of assessment – and can challenge the application of the competence standard defence where appropriate.

And then finally, where competence standards are appropriate, EHRC says that universities should review them to ensure that they are not “indirectly discriminatory”.

The example given is a requirement for all car mechanics students to change a tyre in 10 minutes may be a competence standard, but it may be indirectly discriminatory towards students with a physical disability related to manual dexterity:

The education provider would need to be able to demonstrate that the time limit is a proportionate means of achieving a legitimate aim for the standard not to be indirectly discriminatory.

Pass or fail?

Of course much of this points to a much more strategic look at “anticipatory” adjustments – often putting stuff in place anyway so that equality is there by default. The concerning bit is enforcement – there’s still no sense that EHRC will be bearing down on universities that fail here, and (in England) no sign of OfS incorporating any of this into its regulation.

And as I always say, unless students know their rights in this area and feel able to have them enforced, the danger is that progress will be slow.

But add it up and this is significant – it shifts much of the debate on adjustments, anticipating them and competence standards from a “debate” to “pass or fail”. There’s nothing wrong with the Disabled Students Commitment – but much of it isn’t optional. This is the law – and we’d do well to stop viewing compliance with it as aspirational.

Given what survey after survey tells us is the scale of the problem in UK HE, the time for gentle persuasion, frameworks and optional training events is long gone.