Your Rights

Education post-16 and the DDA

Summary: How the DDA affects people with disabilities in post-compulsory education.

• Who has rights under the Act?
• Who has responsibilities under the Act?
• What is unlawful under the Act?
• What does "discrimination" mean?
• The duty to make reasonable adjustments
• Do I have to disclose my disability?
• Qualification Bodies
• About this guide
• More information

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Who has rights under the Act?

The Act gives rights to disabled people - those with a "physical or mental impairment which has a substantial and long term adverse effect on the ability to carry out normal day to day activities". Most blind and partially sighted people are likely to be "disabled" within the meaning of the Act.

Who has responsibilities under the Act?

• institutions in the higher education sector
• institutions in the further education sector and, in Scotland, colleges of further education
• local education authorities or education authorities securing further education, including adult and community education
• schools providing further education for adults.

What is unlawful under the Act?

Education institutions and authorities may not discriminate against people with disabilities:

• in the arrangements made for determining admissions students
• in the terms on which admissions offers are made
• by refusing or deliberately omitting to accept an application for admission
• in the provision of services provided wholly or mainly for students or those enrolled on courses. This includes courses of education, training, recreation, leisure and catering facilities or accommodation
• by excluding a disabled student either temporarily or permanently from the institution.

In relation to qualifications, the Act says that it is unlawful for an education provider to discriminate against a disabled person:

• in the arrangements which it makes for the purpose of determining upon whom to confer a qualification
• in the terms on which it is prepared to confer a qualification
• by refusing or deliberately omitting to grant any application by a disabled person for such a qualification
• by withdrawing such a qualification from a disabled person or varying the terms on which he holds it.
• In addition, the Act says it is unlawful for an education provider to subject a disabled person who is a student at that institution, or seeks admission as a student to that institution, to harassment for a reason which relates to his disability. It is also unlawful for an education provider to instruct another person, or put pressure on him, to act unlawfully under the Post-16 provisions of Part 4. Harassment is defined as either:
  - violating the disabled person’s dignity
  - or creating an intimidating, hostile, degrading, humiliating or offensive environment.

What does "discrimination" mean?

Direct discrimination

Treating a disabled person less favourably, on the ground of disability, than the education provider treats (or would treat) a person who did not have a disability.

This is known as 'direct' discrimination and it cannot be justified. It generally occurs the disability itself is the reason for the treatment - treatment which is based on prejudice.

Disability related discrimination

When an education provider treats a disabled person less favourably, for a reason relating to the person’s disability, than it treats (or would treat) a person who did not have a disability, and that treatment cannot be justified.

"Less favourable treatment for a reason relating to disability" is broader than direct discrimination - it covers anything 'related' to a person’s disability.
For example: a guide dog owner who is treated less favourably not because of her visual impairment but because of her guide dog, will have been subjected to less favourable treatment "for a reason relating to" her disability.

The duty to make reasonable adjustments

This duty relates to:

• a provision, criterion or practice, other than a competence standard, applied by or on behalf of the education provider
• or any physical feature of premises occupied by the education provider

which places disabled persons at a substantial disadvantage compared with people who are not disabled.

In these circumstances, an education provider has to take such reasonable steps to prevent that disadvantage – in other words the education provider has to make a ‘reasonable adjustment’. There is no defence in law to a failure to make a reasonable adjustment – an adjustment is either reasonable or it is not.

A responsible body’s duty to make reasonable adjustments is an 'anticipatory' duty owed to disabled people and students at large. It is not simply a duty to individuals.

Competence standards

There is no duty to make any adjustment to a provision, criterion or practice of a kind which the Act defines as a ‘competence standard’. However, the duty does apply to the process of demonstrating that a person meets the competence standard. The Act defines a ‘competence standard’ as an academic, medical, or other standard applied by or on behalf of an education provider for the purpose of determining whether or not a person has a particular level of competence or ability. Less favourable treatment of a disabled person can never be justified if it amounts to direct discrimination.

Can less favourable treatment or a failure to make reasonable adjustments be justified?

It is not possible to justify direct discrimination or failing to make a reasonable adjustment. Disability-related less favourable treatment may be justified only if one of the following conditions is fulfilled:

• the reasons are both material to the circumstances of the particular case and substantial
• it is the application of a competence standard.

If a disabled person or student can show that he or she has been treated less favourably than others for a reason relating to his or her disability, it is for the responsible body to show that the action taken was justified.

Do I have to disclose my disability?

There is nothing in the Act which says that you have to disclose your disability. However, if an institution did not know and could not reasonably have known that the individual is disabled, then failure to make an adjustment for a disabled person or student is not discrimination.

Qualification Bodies

Since October 2004, qualifications bodies have duties not to discriminate in the way in which they confer qualifications. Separate but similar provisions have applied to bodies conferring non-vocational qualifications (such as A levels and GCSEs) since September 2007.

What qualifications are covered?

The term "professional or trade qualification" has quite a broad definition.

What is unlawful?

An organisation which confers occupational qualifications may not discriminate against people with disabilities:

• in the arrangements that it makes for deciding who it is going to give a professional or trade qualification to
• in the terms on which it is prepared to confer a professional or trade qualification upon a disabled person
• by refusing or deliberately omitting to grant any application by him for such a qualification
• by withdrawing such a qualification from him or varying the terms on which he holds it.

What does "discriminate" mean?

"Discriminate" has the same meaning as in the employment provisions and, broadly, as the provisions in post-16 education - it can be direct, disability related, or from a failure to make reasonable adjustments. There are, however, special rules though in relation to the duty to make reasonable adjustments.

What can I do if I think that I have been discriminated against?

If you have been discriminated against by a post-16 education provider, you can take your claim to the county court in England, Wales and Northern Ireland (the sheriff's court in Scotland) and claim:

• compensation for any loss you have suffered
  (for example, if you have lost out on a job opportunity because your study has been deferred as a result of the discriminatory treatment, or you can claim for the loss of earnings)
• compensation for injury to your feelings
• and / or an injunction (or interdict in Scotland) to force the responsible body to comply with the Act.

If your claim relates to a qualification body, you must bring it in the employment tribunal within 3 months of the act of discrimination.

About this guide

This guide outlines duties of post-16 education providers who are subject to duties under the Act which were introduced in September 2006 by The Disability Discrimination Act 1995 (Amendment) (Further and Higher Education) Regulations 2006.

However, some providers are subject to the pre-September 2006 provisions, ie:

• schools when providing further education for adults
• local education authorities when providing recreational or training facilities (in England and Wales)
• education authorities when providing recreational or training facilities (in Scotland).

More information

Download our Education post 16 and the DDA: DDA Factsheet 11 (Word)

Useful Links

• Sources of information about the DDA
• What to do if you experience discrimination.

• Access to goods, facilities and services, and public authority functions under the DDA
• 'Reasonable adjustments’ and the DDA
• Definition of disability under the DDA.

• Equality and Human Rights Commission (EHRC)
• EHRC Codes of practice
• EHRC Conciliation Service.

• Registration as blind or partially sighted.

Return to DDA homepage.

Content author: DDAEnquiries@rnib.org.uk

Last updated: 20/11/2008 11:13