Implications of Part IV of the Disability Discrimination Act 1995

Introduction to the Disability Discrimination Act 1995 Part One: Defining key concepts of disability Part Two: Employment Part Three: Goods, facilities, services and premises Part Four: Post 16 Education (SENDA 2001)

Part IV: Post 16 Education It is unlawful for an educational institution to discriminate against a disabled person in relation to: –arrangements made for admissions –terms of offer to admit the person –refusing or deliberately omitting to accept an application –student services provided or offered –exclusion (temporary or permanent)

Part IV: Post 16 Education (2) The educational institution must also take reasonable steps to ensure disabled persons are not placed at a substantial disadvantage compared to non-disabled people in relation to: –arrangements made for admissions –student services provided offered

What is an educational institution? Part IV of the DDA applies to: –Institutions in higher and further education –Local education authorities or education authorities securing further education –Schools providing adult further education –Youth and Community Services Liability rests with the “responsible body” –Usually the governing body

What is the duty? A responsible body has a duty not to treat a disabled person: –less favourably for a reason relating to the disability –compared to a person to whom that reason does not and would not apply and; –that treatment cannot be justified Intended commencement 01/09/02

What is the duty? (2) The responsible body has a duty to: –make reasonable adjustments –when a disabled student is placed or likely to be placed at a substantial disadvantage –compared to a person who is not disabled Most adjustments by 01/09/02 –Auxillary aids and services by 01/09/03 –Physical features by 01/09/05

How far does the responsibility extend? Admissions and exclusions Student Services (“wholly or mainly for students”) including: –teaching, research, exams, field trips –learning facilities and equipment –IT, careers services, counselling, welfare –leisure, sports, shops, parking and accommodation –distance learning

Duty of the Responsible Body The body responsible for the educational institution has a duty to comply with Part IV of DDA 1995 The responsible body is liable for anything done by its employees during the course of their employment –Lister & Others v Hesley Hall Limited 2001

Example A security guard always takes a long time to open the barrier to a car park for a disabled student. He does this because he disapproves of students using the car park. The college is likely to be responsible even if the governing body is not aware of the guard’s actions.

Duty of the Responsible Body (2) Anything done by a person as agent for another person with their authority shall be regarded as having also been done by that other party –Includes express and implied authority –Whether given before or after the act was done

Example Cleaning at a university has been contracted out to an agency A blind student has asked the hall warden to ensure cleaners replace things where they find them in his room and kitchen One cleaner continually moves things around so the student cannot find them The responsible body is likely to be acting unlawfully by failing to ensure the reasonable adjustment was made

Defence for Responsible Body The responsible body may have a defence if it took reasonable steps to prevent the actions of the employee Example: A responsible body may have a defence to anything done by any of its workers if the correct procedures, training and monitoring were implemented and staff made aware of them.

Individual Responsibility Individuals also under a duty to comply with the provisions of Part IV DDA Individual who knowingly aids another to do an unlawful act is treated as doing that same unlawful act himself (even if the other individual / responsible body has a defence) Defence only if acting reasonably and in reliance on statement by employer Making such a false or misleading statement is a criminal offence

Example Unknown to the educational authority a community worker excludes a deaf woman from discussions of a residents group. The worker had received training on rights of disabled people under the Act which included ways of including deaf people. The education authority regularly monitors that its policies and guidelines are followed The authority may have a defence but the worker is likely to be personally liable

Example (2) A local education officer sends a memo to lecturers advising that part time students are not covered by the Act. He knows that this is not the case. A lecturer acts on this advice and refuses to provide alternative formats of materials for a blind student. The local education authority is likely to be acting unlawfully but not criminally as it had no knowledge of the memo.

Example (2) continued The lecturer is unlikely to be knowingly aiding an unlawful act because it would be reasonable for her to rely on the memo. The local education officer is likely to have committed a criminal offence.

Confidentiality Right to request existence / nature of disability kept confidential Conflict between duty not to discriminate and duty of confidentiality Extent to which responsible body is held to have imputed knowledge of disability when employee / agent has kept information confidential on request

Claims brought under DDA Civil proceedings within six months of alleged discrimination / last discriminatory act. Internal complaint procedure of responsible body Disability Rights Commission Conciliation Service –extends civil time limit by 2 months if used within 6 months

Awards made by Court Court may award to the Claimant: –Compensation for financial loss and / or injury to feelings –Injunction to prevent future discriminatory act –Order requiring positive action –Declaration of rights / responsibilities of parties

How to avoid a claim Less favourable treatment can only be justified if it is necessary to: –maintain academic or other prescribed standards –course leads to profession regulated by external body (medicine, teaching) Reason for the treatment must be both material to circumstances and substantial

How to avoid a claim (2) What is a reasonable adjustment? –Type of services –Nature of institution and cost involved –Effect of disability on individual –Financial resources, loans available –Aids and services otherwise provided –Health and safety issues –Relevant interests of others

What action should be taken? Extent of provision for disabled students (Ian Kenny v Hampshire Constabulary 2001) Areas to comply with duty: –Admissions policy and procedure –Access to education –Access to all student services –Physical access on university sites

Action Plan Training and awareness Strategic Planning Audits Policy review Support materials Information for students / staff Anticipation / Continuing duty

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