Creating accessible practical classes for disabled students

3. Reflecting from the legal angle

I’m responsible for organising the practical teaching in my department, though someone else is the Health and Safety person, and we work closely together. What are the legal issues about disabled students that we should both be aware of?

To begin with, practical sessions, laboratories, studios, darkrooms, laboratory equipment, and computer facilities are all ‘services’ in the provision of which discrimination must be avoided. This means the avoidance of less favourable treatment of disabled people using these services, and reasonable adjustments to make sure that disabled people are not substantially disadvantaged in their use of the services.

It’s worth quoting the DDA Part IV Code of Practice on health and safety:

"5.53 The Act does not override health and safety legislation.  If making a particular adjustment would increase the risks to the health and safety of any person (including the disabled person in question) then this is a relevant factor in deciding whether it is reasonable to make that adjustment.  Suitable and sufficient risk assessments should be used to help determine whether such risks are likely to arise.  There might be instances when, although an adjustment could be made, it would not be reasonable as it would endanger the health and safety either of the disable person or of other people.  However, education providers are not required to eliminate all risk and should look at reasonable adjustments which will minimise risks."

So the duty to seek and make reasonable adjustments stands, but the adjustments should not compromise health and safety. Spurious use of health and safety is to be avoided: the aim is to seek adjustments consistent with health and safety requirements, and it would be wrong to assume before investigation that no safe adjustments could be made for a particular student, just as it is certainly wrong to assume that whole categories of disabled people, such as blind people, would be unable to work safely in practical classes. Such assumptions are likely to amount to direct discrimination, which is always unlawful.

This must be an area where, whatever the student says, we need to tell everyone working in the lab if there’s a disabled student, surely?

Reasonable adjustments should as far as possible be consistent with disabled people’s requests for confidentiality, and requests for confidentiality should as far as possible be respected. There is also a need to distinguish between telling people about what a disabled student might need, and why that might be needed. It is perfectly possible, and perhaps indeed the norm, that a disabled student working in a practical class will need no adjustments whatsoever, since their impairment will have no bearing on the activities of the class. The situations in which there is a justification for overriding a student’s expressed desire for confidentiality on the grounds of health and safety are likely to be very exceptional.

Our students are taught in practical classes that were designed pre-DDA. How far do we need to go to improve physical access? Could be very costly indeed!

Cost is a factor which may be taken into consideration in determining the reasonableness of adjustments. The assessment of the financial wherewithal to make an adjustment would be made of the institution, and not the individual department which might be considering whether an adjustment can be made. 

Moreover, the duty to make reasonable adjustments is anticipatory, which means that opportunities, such as when labs are being refurbished, or studio furniture is being renewed, should be used to ensure that the needs of future disabled students are taken into account.

What students have to do in practical classes is laid down by our professional body. So surely that means that what we can do by way of adjustments is pretty limited?

By and large, Universities have duties under Part IV of the Disability Discrimination Act, and, as of October 1st 2004, Qualifications Bodies have had duties under Part II. Some work which is undertaken in practical classes may fall within the heading of 'competence standards', which are defined in the Code of Practice on Trade Organisations and Qualifications Bodies, and also in the amended (2007) Code of Practice for the DDA Part IV as 'academic, medical or other standards applied by or on behalf of a qualifications body for the purpose of determining whether or not a person has a particular level of competence or ability.'

There is no duty to make reasonable adjustments in respect of the application of a relevant and genuine competence standard. But where the manner of assessing the competence can be separated from the standard itself, adjustments might be possible, and should be sought. Sometimes the manner of assessment is tied to the standard: an assessment of someone’s ability to speak a language cannot be undertaken in writing. Often the manner of assessment and the standard are separate: a written test paper about office administration is indicative of a competence, but is not itself the competence standard. The adjustment of additional time for the candidate to undertake the test is likely to be a reasonable adjustment.

It is important to be clear about what the competence standards are for your subject area. Failure to be clear could lead to the failure to make reasonable adjustments, and this is always unlawful. Competence standards are not the same as competences identified in benchmark statements.

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