Annex 6

Guidance on Reasonable Adjustments to the Assessment of Disabled Students

Summary

Disabled students are an integral part of the University community. As such, they have a general entitlement to the provision of education in a manner that meets their individual requirements. This entitlement extends to provision for disabled students at assessment.

The various parts of the equality legislation relating to disabled students in higher education1 require universities not to discriminate against disabled students. Discrimination includes (1) treating a disabled student less favourably than other students and (2) failing to make ‘reasonable adjustments’ to both course delivery and assessment. As a consequence, the University must provide reasonable adjustments to the assessment of disabled students to ensure that they are not placed at a ‘substantial disadvantage’ in relation to their non-disabled peers. Although this obligation covers many aspects of higher education, this annex deals only with adjustments at assessment. Universities are not required to make adjustments to assessment which will compromise the academic, medical or other ‘competence standards’ of the degree programmes in question. This annex describes the types of adjustments which may be required and gives examples of good practice (with regard to reasonable adjustments) and of what would and would not be likely to be considered competence standards (in relation to assessment). It should be noted that all universities are subject to the public sector equality duty2, the effect of which is to require universities to promote and embed disability equality proactively across institutional structures, hierarchies, policies, procedures and practice.

1 The Equality Act 2010 replaced the Disability Discrimination Act (DDA, 1995, amended 2001, 2005). In amending the DDA, the Special Educational Needs and Disability Act (SENDA, 2001) introduced the concept of ‘reasonable adjustments’ to the provision of higher education. The 2005 revision to the DDA placed a ‘positive statutory duty’ on public bodies (including the University) to have due regard to the need to promote equality of opportunity between disabled and other persons and to avoid disability-related discrimination (among other obligations). All these provisions have been incorporated into the Equality Act, together with a new, broader public sector equality duty.
2 The public sector equality duty requires public bodies to have due regard to the need to promote equality of opportunity, eliminate unlawful discrimination and foster good relations between people with a ‘protected characteristic’ and those without. The ‘protected characteristics’ are: age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, and pregnancy and maternity.

Key concepts

Disability – Section 6 of the Equality Act 2010 specifies that: a person has a disability if they have a physical or mental impairment which has a long term and substantial adverse effect on their ability to carry out normal day-to-day activities4. ‘Physical or mental impairment’ includes sensory impairments such as those affecting sight or hearing. ‘Long term’ means that the impairment has lasted or is likely to last (may well last) for 12 months or more. ‘Substantial’ means more than minor or trivial. Case law has established that ‘day-to-day’ includes sitting examinations, which are not regarded as a specialised activity5. Unseen impairments are also covered (such as mental ill health and conditions such as diabetes and epilepsy). Cancer, HIV infection and multiple sclerosis are considered disabilities under the Act from the point of diagnosis. Progressive conditions (such as lupus, multiple sclerosis) and fluctuating conditions (such as CFS/ ME, chronic pain) and conditions which may reoccur (such as depression) will amount to disabilities in most circumstances.

Disabled students at the University may include those with:

Students with any of the conditions listed above are regarded as disabled because they meet the definition of disability under the Act. This list is not exhaustive. A person with a long term health condition or mental health difficulty continues to be regarded as disabled despite fluctuations in the severity of their condition or, in the case or cancer, after recovery.

Many disabled students receive funding for study support via Disabled Students’ Allowances (DSAs)6. However, a student need not be in receipt of DSAs to be supported as a disabled student at the University; they need only be disabled as described by the Act. Likewise, many disabled students receive advice and support from Disability Services; however, a student need not be known to Disability Services before they can be supported by others at the University, such as their tutors, their School/ School Disability Coordinator, the Library Disability Coordinator and staff and services across the wider University community.

http://www.legislation.gov.uk/ukpga/2010/15/section/6
5 Paterson v The Commissioner of Police of the Metropolis (2007) UKEAT 0635/06.
https://www.gov.uk/disabled-students-allowances-dsas/overview

Reasonable adjustments

Section 20 of the Act imposes a duty on universities to make reasonable adjustments for students7 in relation to:

Where the University’s assessment practices put a disabled student at a substantial disadvantage in comparison with students who are not disabled, the University must take reasonable steps to avoid the disadvantage. Consequently, the purpose of the duty is not to confer an unfair advantage on disabled students but to remove barriers where it is reasonable to do so, such that disabled students have the opportunity to demonstrate their learning. The duty to make reasonable adjustments to assessment is anticipatory. The University should not wait until an individual student discloses a disability or until adjustments are requested. Instead, likely solutions to predictable difficulties should be prepared in advance such that disabled students are not substantially disadvantaged. There is no legal defence for the failure of an institution to make a reasonable adjustment. This would be interpreted as discrimination under Section 21 of the Act.8

The Quality Assurance Agency for Higher Education (QAA) Code of Practice for the Assurance of Academic Quality and Standards in Higher Education9 defines reasonableness as follows: “The application of an adjustment will result from consideration of the circumstances of the individual student and will involve the student in discussion of possible courses of action. What is ‘reasonable’ for an institution will vary according to a range of factors and will depend on the circumstances of the individual case. Factors influencing the determination of what is reasonable will include the effectiveness of taking particular steps in enabling the student to overcome the relevant disadvantage, health and safety issues, the effect on other students and the financial cost to the institution.”

http://www.legislation.gov.uk/ukpga/2010/15/section/20
http://www.legislation.gov.uk/ukpga/2010/15/section/21
9 http://www.qaa.ac.uk/publications/informationAndGuidance/Documents/Section3Disabilities2010.pdf

Examples of reasonable adjustments to the assessment of disabled students

It is important that adjustments meet the needs of the individual disabled student rather than providing a generic response to a class or type of disability. It cannot be assumed that what works for student A on course X will work for student B on course Y. Once implemented, adjustments do not provide automatic precedents for other students, but may be taken into account when considering what would be appropriate in a different case. The following list is not exhaustive – neither in terms of the kinds of adjustments that may be required nor the types of students who may require them.

Extra time is often recommended for students with some kind of processing difficulty. This can be the result of a specific learning difficulty (such as dyslexia), a mental health difficulty (such as depression), or an autism spectrum condition (such as Asperger syndrome). It is also recommended for students with fatigue conditions (such as CFS/ ME) and for students who are prescribed medication which may slow cognitive processing (such as some medications for hyperthyroid conditions, depression or chronic pain). Extra time is often recommended at 25% of the prescribed examination time but may range up to 100% – for example, to allow a blind student to complete an exam using technological aids.

Stop-the-clock rest breaks are often recommended for students with fatigue conditions, mental health conditions (such as anxiety disorders), conditions which require the student to mobilise to relieve discomfort or pain (such as hypermobility), conditions which necessitate frequent visits to the toilet (such as irritable bowel syndrome or any condition which gives rise to bladder urgency), and to students who require higher percentages (more than 25%) extra time, since students whose exams last longer will need break time in response to additional working time.

A scribe is recommended when a student can neither write nor type at a rate which would not significantly disadvantage them in relation to their peers.

An exam paper in an alternative format may be recommended for a student with a visual impairment, for example, an exam paper in large print or in Braille. A student with a particular dyslexic profile may be recommended an exam paper on a particular colour of paper or a reader to read exam questions to them aloud.

A student with anxiety might be recommended a smaller venue. This might also be recommended for a student with an attention deficit disorder. A sole venue may be recommended for a student who needs to mobilise (e.g., because of chronic pain) or read exam questions aloud or ‘think aloud’ (due to their particular dyslexic profile).

A student may be recommended a scheduling adjustment. This might include a recommendation not to have more than one exam per day and/ or to have a least a one-day break between exams, and/ or not to be scheduled for early AM or late PM exams. This may be recommended for students with fatigue conditions, long-term illnesses (such as cancer or the after-effects of cancer) or mental health difficulties -- or for students who require higher percentages of extra time (more than 25%) and/ or larger allowances for stop-the-clock rest breaks.

An alternative form or time-course of examination may be recommended where a student cannot display their learning in a traditional, speeded, timed assessment. Alternative forms may include:

Where an alternative way of demonstrating learning is permitted, the expectation is that it will be equally rigorous in comparison to the assessment undertaken by a student’s non-disabled peers. It must be as capable of demonstrating that the student has met the requisite learning outcomes as the original form of assessment.

Examples of anticipatory adjustments to the assessment of disabled students

The QAA Code of Practice for the Assurance of Academic Quality and Standards in Higher Education10 highlights: “There may be more than one way of demonstrating the attainment of a learning outcome, and the various possibilities should have been considered in the process of programme design. Institutions should use a range of assessment methods as a matter of good practice to provide opportunities for disabled learners to show that they have attained the required standard.”

10 http://www.qaa.ac.uk/publications/informationAndGuidance/Documents/Section3Disabilities2010.pdf

Competence standards – reasonable adjustments are implemented to prevent disabled students from experiencing substantial disadvantage and hence to support such students to achieve their potential. However, in defining reasonableness, institutions are not required to compromise competence standards. Within the Act, competence standards are defined as: the academic, medical or other standard(s) applied for the purpose of determining whether or not a person has a particular level of competence or ability11. Not all competences, assessment criteria or learning objectives which students might be expected to fulfil on a particular course are genuine competence standards as defined by the Act. These are the characteristics of a genuine competence standard12:

  1. Its primary purpose is to determine whether or not a student has achieved a particular level of competence or ability
  2. It must be specific to an individual course (not applied University-wide)
  3. It must be relevant to the course
  4. It applies equally to all students, not just to disabled students
  5. It must not directly discriminate against disabled students
  6. It must be a proportionate means of achieving a legitimate aim

The ‘proportionate’ and ‘legitimate’ elements of this guidance refer to such considerations as:

While genuine competence standards are exempt from the obligation to make reasonable adjustments, the method by which students demonstrate their attainment of a learning outcome is not itself a competence standard (although there are occasions where the competence standard and the method of assessment are inextricably linked, such as in the case of a musical performance). Thus, requiring all candidates to complete a written exam within three hours would lead to indirect discrimination13 and discrimination arising from disability14 against people with fatigue conditions, physical impairments, or specific learning disabilities unless it could be shown that the three-hour time limit meets all the characteristics of a genuine competence standard (see 1.-6., above). This would be unlikely in most cases given the variety of methods of assessment already accepted within the University. It will generally be difficult to demonstrate that the ability to make a written, time-constrained response is an integral and irreplaceable component of any standards applied in order to determine whether a student has achieved the required level of competence or ability. Failure to make adjustments to the mode of assessment for disabled students could therefore give rise to claims of discrimination, including a failure to make reasonable adjustments. In contrast, a method of assessment which required candidates to demonstrate synoptic knowledge of material studied over the course of one or two years is likely to be regarded as an acceptable competence standard. However, a method of assessing this knowledge which requires high levels of stamina in order to complete a number of papers within a limited time scale would not be justifiable.

11 http://www.legislation.gov.uk/ukpga/2010/15/section/54
12 ICDS (Inclusive Curriculum for Disabled Students) Guide and Briefing Series: ‘Competence Standards’, IMPACT Associates and the University of Westminster, 2009
13 ‘Indirect discrimination’ occurs when a policy, criterion or practice applied equally to all students has the effect of putting disabled students at a substantial disadvantage and is unlawful unless it can be justified as a ‘proportionate means of achieving a legitimate aim’.
14 ‘Discrimination arising from disability’ occurs where a person is treated less favourably as a result of his or her disability and the treatment cannot be justified.

Examples of what would and would not be likely to be considered competence standards

The requirement for students studying for a law degree to demonstrate a particular standard of knowledge of certain areas of law in order to obtain the degree is a competence standard.

It matches all the characteristics of a genuine competence standard (see 1.-6., above).

In contrast:

The requirement for students studying for a law degree to demonstrate a particular standard of knowledge of certain areas of law within a certain period of time in order to obtain the degree is likely not to be a competence standard.

This is because the competence being tested is not the ability to do something within a limited time period.

Sometimes the process of demonstrating whether a competence standard has been achieved is inextricably linked to the standard itself. Here, the passing of an assessment may be conditional upon having a practical skill or ability, which must be demonstrated by completing and passing a practical test. Therefore, in relatively rare circumstances, the ability to take the test may itself amount to a competence standard:

Being able to undertake a practical exam in medicine to demonstrate competence in dissection is a competence standard.

Similarly:

Being able to undertake an oral exam in simultaneous interpretation between English and another language is a competence standard for a qualification in simultaneous interpreting.

In these cases, the ability to take the practical or oral exam is part of the standard.

It may not be possible to make reasonable adjustments to the assessment of some competence standards:

A student taking a course with a strong practical element, such as car maintenance, tree surgery or dentistry, could not replace practical assessments with a written assignment or instruct an assistant to do the task on their behalf.

In practice, many examples are less clear cut and require careful consideration. When deciding whether the prescribed form of assessment is inextricably linked to the demonstration of the competence standard, it may be necessary to navigate complex issues:

If the course leads to professional recognition, there may be professional requirements to meet (for example, in the case of medicine and veterinary science). Professional requirements may be linked to fitness to practice. Professional requirements may specifically preclude the use of alternative forms of assessment. In light of current legislation, professional bodies should have revised their standards to ensure that they are genuine competence standards. Nevertheless, it may be necessary to enter into discussion with professional bodies if it does not appear that their standards are non-discriminatory. Alternatively, many professional bodies may be at the forefront of good practice, as indicated by the General Medical Council’s current published list of reasonable adjustments, including reasonable adjustments to practical assessments, such as OSCEs15.

The following are examples which are unlikely to amount to competence standards in most cases:

15 http://www.gmc-uk.org/education/undergraduate/appendix.asp

How can the University avoid discrimination in relation to competence standards?

All students should be given the opportunity to demonstrate their competence in the most appropriate way for them. Universities can benefit from taking an anticipatory approach and reviewing course standards to determine whether they are genuine competence standards. This can be accomplished by:

Further advice and support

Current University processes for implementing reasonable adjustments (Alternative Examination Arrangements; AEAs) are here: www.bristol.ac.uk/exams/alternative/

There are currently two routes for students to AEAs – either (1) by applying with evidence directly to their School via their School Disability Coordinator:

www.bristol.ac.uk/disability-services/staff-professionals/school-disability/coordinators.html

or (2) by submitting evidence to Disability Services and meeting with a Disability Adviser to have a Disability Support Summary prepared (see below). This second route has some advantages for the student in that it provides Disability Services with the opportunity to:

Disability Services provides recommendations for reasonable adjustments via students’ Disability Support Summaries. These recommendations are based on the contents of students’ externally-conducted assessments (such as GP/ Consultant reports, Educational Psychologist and Specialist Teacher reports), on the summary recommendations contained in externally conducted, quality-assured Needs Assessments, on discussion with the student, the involvement of the Faculty/ School in more complex cases, and on the professional judgement of the University’s Disability Advisers. In all cases, recommendations documented in a Disability Support Summary are evidence-based. In making their recommendations, Disability Advisers have access to input from their professional body (National Association of Disability Practitioners16) and are thus informed by practice across the UK HE sector.

Guidance on working with disabled students and on Disability Support Summaries can be found here: www.bristol.ac.uk/disability-services/staff-professionals/school-disability/supportsummaryguidance.pdf

Disability Services provides confidential advice and support to prospective and current disabled students and to University staff who support them. Disability Services can be contacted by email: disability-services-advice@bristol.ac.uk or see www.bristol.ac.uk/disability-services/

16 http://nadp-uk.org/