I'm responsible for devising and organizing examinations and other assessments for our course. What are the legal points I need to take note of?
Examinations and assessments are listed in the DDA Part IV Code of Practice as services in the provision of which less favourable treatment must be avoided, and reasonable adjustments must be made. What is 'reasonable' in this context will be influenced by a number of factors. A radically different form of assessment may in some cases be judged by the University as inconsistent with core academic standards, and in other cases the assessment may be subject to the requirements of an external professional body, such as the GMC or the GTC. 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'.
Human Rights legislation may also be relevant. It may be that, for example, students who have poor literacy skills, and who for this reason are failed or downgraded on assessment, have an action under Protocol 1 Article 2 (the right to education) whether or not they are diagnosed as dyslexic and whether or not they qualify for protection under the DDA. An institution which wished to avoid such claims might (a) make explicit to applicants that the ability to spell and write grammatically, etc., is a prerequisite of certain courses, (for reasons which are defensible and not open to objection on grounds of discrimination, of course) and (b) in addition, or in the alternative, make it clear that literacy in the relevant sense is a substantial part of the curriculum, and offer instruction in spelling and grammar. In that case it would at least be clear that, if the student's right to education was being infringed, it was not by the institution.
Our course and examinations are accredited by an external body. Where does responsibility for making adjustments lie?
The DDA Part IV Code of Practice underlines the complexity of this question.
3.8B A student applies to do a degree in Medicine at a university. Both the course and the examination are accredited by the General Medical Council ( GMC). The student needs adaptations made to both the course and the examination because of his disability. The university is responsible for making the adaptations. However, to the extent that the GMC accredits both the course and the examination, the university is not responsible for decisions about whether adaptations may be made.
Clearly, where a professional body is involved in setting examination and assessment standards, it would be necessary to check the particular arrangements and loci of responsibility for the course or programme of study in question.
What if disabled students choose not to tell me, or anyone else in the institution, that they might need adjustments made for examinations or other assessments?
The DDA Part IV Code of Practice suggests that if the institution might reasonably have been expected to know, then it may not be able to claim that it did not know. The development of an environment in which disabled students are encouraged to disclose, and in which students are invited to disclose prior to examinations and other assessments is explicitly recommended in the DDA Part IV Code of Practice.
Where the information about disabled students' needs is held in a central service, such as Registry or a Disability Service, then it is important that consideration be given to determining how this information may be conveyed and used. Students' expressed desire for confidentiality and the requirements of Data Protection legislation should also be considered by those arranging examinations and other assessments.
Where students explicitly state that information about the existence or nature of their disability should not be passed to others in the institution then it may be difficult to put adjustments to examinations and assessments in place. The student's exercise of their right to request confidentiality might mean that a lesser adjustment or no adjustment is possible. On the other hand, consideration should be given to the possibility that although the student wishes the nature of their disability to remain confidential, they may be willing for their needs to be made known to those who need to know in order that adjustments to examinations and assessments may be made.
The duty to make reasonable adjustments is anticipatory. As far as possible, this means making adjustments in advance. In the context of examinations and assessments, this might mean ensuring that diverse student needs are considered as far as possible when the assessment strategy is designed.
Some students ask for adjustments which would mean that they can't be assessed against the same criteria as other students. When should we and when should we not make an adjustment?
The DDA Part IV does not require compromise to academic standards, and academic standards may be invoked as a justification for the failure to make an otherwise reasonable adjustment. But this justification is only available in the case of core academic standards. Core academic standards should therefore be clearly defined and publicised, so that there is clarity about where there is and is not scope for adjustments, about which criteria are fixed, and which are not.
If it is possible that academic standards might be compromised where adjustments are unsupported by evidence about the student's disability, then such evidence should be requested.
Where can I get further information?
Disability Discrimination Act 1995 Part 4, Code of Practice for providers of post 16 education and related services. (Available from the Disability Rights Commission.)
Disability Rights Commission The Disability Discrimination Act Part 4 Examinations and Assessment Good Practice Guide
Disability Discrimination Act 1995 part 2, Draft Code of Practice Trade Organisations and Qualifications Bodies.
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