1 DDA Amendment Regulations for HE and FE 2006 Competence Standards Anne Simpson Head of the Disability Service University of Strathclyde

2 A competence standard is defined as ‘an academic, medical or other standard applied by or on behalf of an education provider for the purpose of determining whether a person has a particular level of competence or ability’. (5.71)

3 Competence standards – why are they important to Part IV of the DDA? There is no duty to make reasonable adjustments to a provision, criterion or practice which the Act defines as a ‘competence standard’. (5.70)

4 However, Institutions do have a duty to make reasonable adjustments to the way in which disabled students and applicants can show that they have attained competence standards.

5 The Code also says… ‘The admission criteria for a course in choreography include a requirement to demonstrate a ‘high level of physical fitness’. The course itself, however, is predominantly theory based and does not involve any strenuous physical activity. This is unlikely to be a competence standard.’ (Example, 5.71)

6 But why is this not a competence standard? ‘… any such requirement or condition only amounts to a competence standard if its purpose is to demonstrate a particular level of a relevant competence or ability.’ If it is not relevant, then it is not a competence standard as described in the Code of Practice.

7 What does this have to do with disability discrimination? Standards and criteria are applied for the purpose of selecting applicants at admissions, assessing students’ work and ranking students for the conferment of awards.

8 What does this have to do with disability discrimination? If the standards or criteria invoked might be at odds with some disabled applicants’ or students’ impairments and/or they are not even necessary for success on the course, i.e. ‘relevant’, then discrimination is risked.

9 Direct discrimination is never justifiable E.g. A visually impaired applicant for a course sits the admissions test (with adjustments) and passes. Non disabled applicants also sit the test and pass. The disabled candidate is not offered a place, but the others who passed are offered places. Likely to be direct discrimination. (4.19)

10 Disability-related discrimination might be justifiable Course in ballet, and disabled applicant fails audition for reason related to disability. (Anyone performing in that way would fail, disabled or not, so not direct discrimination.) But might it be less favourable treatment for a reason related to a disability, and hence discrimination? Yes.

11 Disability-related discrimination might be justifiable May be justifiable if you can show: The standard is or would be applied equally to people who do not have his (sic) particular disability; and Its application is a proportionate way of achieving a legitimate aim.

12 The application of the standard must be a proportionate means of achieving a legitimate aim. i.e. There must be a pressing need that supports the aim the treatment is designed to achieve. The application of the standard must achieve that aim. There must be no other way of achieving that aim which would be less detrimental to the rights of disabled people.

13 An example of standards applied at assessment A course in dentistry requires the students to execute various manual procedures to a very high level of accuracy. A student on course develops a persistent manual tremor. The student fails the assessment and the course. This appears to be less favourable treatment for a reason related to a disability. Is it justifiable?

14 Is the requirement a relevant competence standard? If it is ‘proportionate to the requirements of the course’ (6.26), then the requirement is a relevant competence standard.

15 Can applying the standard in this case – which fails the candidate - be justified? To answer this question, you must ask: Is the standard applied equally to all students examined with or without this disability? Is it a proportionate means of achieving a legitimate aim?

16 Is it a proportionate means of achieving a legitimate aim? To answer this question, you need to consider whether: there is a pressing need for the aim; applying the standard actually achieves that aim; there is no other way, less detrimental to disabled people, to achieve the aim.

17 An example of standards at admissions A University requires a Higher in a Modern Language for admission to its Arts Faculty.

18 An example of standards at admissions A Deaf applicant attended a school with a hearing support unit, but did not do a Modern Language because of the difficulty in achieving the Higher listening and speaking components. She has several good Highers, but is not offered a place. This appears to be less favourable treatment for a reason related to a disability. Is it justifiable?

19 Is the requirement a relevant competence standard? It might be. But if the standard is not ‘proportionate to the requirements of the course’ (6.26), then the education provider would be unlikely to be able to justify the criterion for admission. Suppose that it is a relevant competence standard. Then….

20 Can applying the standard in this case – which excludes the Deaf candidate - be justified? To answer this question, you must consider whether: the standard is applied equally to all applicants with or without this disability. it is a proportionate means of achieving a legitimate aim.

21 ‘Legitimate aim’? Production of graduates who will satisfy employers’ expectations? Integrity and coherence of curriculum design? A way of selecting the applicants most likely to succeed on the course? Improving the University’s image? Or…?

22 ‘Proportionate’? Role and importance of a modern language on the course; Scope for making adjustments to the course design to take account of various student interests and abilities. Cf Guckenberger case, ADA (1990)

23 So is it a proportionate means of achieving a legitimate aim? To answer this question, you need to consider whether: there is a pressing need for the aim; applying the standard actually achieves that aim; there is no other way, less detrimental to disabled people, of achieving the aim.

24 Code of Practice (8.10) Although an education provider is entitled to specify that applicants for a course must have certain qualifications, it will have to show that these are genuine competence standards required for the course and that the application of the competence standard is a proportionate means of achieving a legitimate aim.

25 DRC formal investigation – teaching, nursing and social work. Interim report: ‘Requirements and conditions …should be reviewed to ensure that they not only meet the requirements of the DDA but also that the opportunity is taken to promote participation in these professions by disabled people…’

26 DRC formal investigation – teaching, nursing and social work. Interim report: ‘Any standards, including fitness standards or English language standards would need to be monitored for their ongoing effect on disabled people.’