Creating accessible placements, study abroad and field trips for disabled students

3. Reflecting from the legal angle

Arranging field trips, study abroad and placements, and finding placements, are all listed in the DDA Part IV, Code of Practice revised 2007 as services, in the provision of which discrimination must be avoided. (The amendments to Part IV of the DDA re-defined discrimination, and listed 4 kinds: Direct, Failure to make reasonable adjustments, Disability related and Victimisation.) There is no defence for the failure to make reasonable adjustments needed by disabled students. Various considerations can be taken into account when determining what is reasonable.

As to whether a radical alternative to a particular placement, study abroad or field trip would be ‘reasonable’ calls for careful judgment. If the off-campus study is considered to be a competence standard, the disability related discrimination which follows when a disabled student is denied adjustments can be justifiable. The justification depends on showing first of all that the standard is applied to all, and not only to disabled people. The application of the standard also has to be shown to be a ‘proportionate way of achieving a legitimate aim’, i.e.

• that there is a pressing need that supports the aim;
• that the application of the standard really achieves that aim;
• that there was no other way of achieving that aim which would be less detrimental to the rights of disabled.

Competence standards are often laid down by professional bodies, such as the GMC or the GTC. These bodies are subject to the duties outlined in the DDA Part II Code of Practice, Trade Organisations and Professional Bodies. But within these parameters, the University has the duty to seek adjustments which have the effect of alleviating what would otherwise amount to the disabled student's 'substantial disadvantage'. Even where a particular standard is agreed to be a competence standard, legally defined, alternative ways of allowing disabled students to demonstrate that they have attained the standard need to be sought for the purpose of avoiding substantial disadvantage.

Off campus study is also more likely to be the location for the development of competence standards rather than the standard itself, although some standards may only be achievable in certain locations, such as hospitals (for standards associated with clinical competences) or forests (for standards associated with tree surgery).

The University should, as far as possible, ensure that students undertaking off-campus study course elements will not be discriminated against (DDA Part IV, revised 2007, para 11.8). It is the UK institution’s responsibility to check, in the case of study abroad, that arrangements needed by disabled students will be provided, in order to avoid claims of discrimination.

The DDA Part II Code of Practice (Employment and Occupation) allocates placement providers responsibilities for disabled students parallel to those for employees. The DDA Part II Code of Practice, Trade Organisations and Qualifications Bodies requires objective justification for competence standards, and for the means of demonstrating their attainment where the application of such standards could lead to discrimination.

The University which sends disabled students on off campus study is still subject to the DDA Part IV revised 2007, even where other organisations or institutions have legal responsibilities towards the same disabled students.

The DDA Part IV Code of Practice revised 2007 says that is the education provider might reasonably been expected to know to find out about a person’s disability, then it cannot rely on the lack of knowledge as a defence. It is clear from the Code of Practice that multiple opportunities to disclose a disability are to be recommended, particularly in relation to the non-standard teaching elements, such as placements, study abroad and field trips.

Further, the duty to make reasonable adjustments is anticipatory. As far as possible, this means making adjustments in advance, and as routine, before needed by particular students. In the context of placements, study abroad and field trips, this might mean ensuring that diverse student needs are catered for as far as possible when off-campus teaching is designed. Or, it might mean trying to build in flexibility by, for example, seeking a range of relevantly different placement providers, or by offering different versions of the same field trip. Or it could mean gathering information about, and assessing the suitability of, facilities in host institutions or field trip locations.

The use and transfer of information about disabled students is restricted by the Data Protection Act 1998. The DDA Part IV Code of Practice revised 2007 advises also that disabled people have a right to request that the existence or nature of his or her disability be treated as confidential. However, in considering whether particular adjustments are reasonable, the Act allows Health and Safety to be considered. The DDA Part IV revised 2007 (para 5.53) says that the DDA does not override Health and Safety legislation, adding that necessary and sufficient risk assessments may be necessary to reduce risk to acceptable levels. With the student’s consent, information about their disability can be passed on as necessary.

If a disabled student requests confidentiality about the existence and nature of their impairment then the Code advises that the University should have regard to the extent that making the adjustment is consistent with that request. This might mean a lesser adjustment, or no adjustment, being made. The DDA Part IV does not, however, override Health and Safety legislation, or remove the duty which the University has to protect students, employees and others. This raises the possibility of very exceptional circumstances in which the University comes under a duty to disclose information to third parties such as placement providers, even against the student's expressed request for confidentiality. The DDA Part IV Code of Practice revised 2007 states (para 8.37) states that for some courses there may be other legal requirements that students disclose certain disabilities or conditions.

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