DDB 35 Skill: National Bureau for Students
with Disabilities
Draft Disability Discrimination Bill
Evidence to the Parliamentary Scrutiny
Committee
Introduction
1.1 Skill: National Bureau for Students
with Disabilities promotes opportunities to empower young people
and adults with any kind of disability to realise their potential
in further, continuing and higher education, training, and employment
throughout the United Kingdom. We work by providing information
and advice to individuals, promoting good practice and influencing
policy in partnership with disabled people, service providers
and policy makers.
1.2 Skill welcomes the Draft Disability
Discrimination Bill. We endorse the widening definition of disability
to include those individuals with cancer, HIV infection and multiple
sclerosis but would like to see this widened further to include
those with mental health problems. These people experience a great
deal of discrimination and have little protection under the current
legal provision. We also welcome the public sector duty to promote
equality of opportunity for disabled people that will be introduced
through the Bill, mirroring the duty in the Race Relations (Amendment)
Act. Skill is hopeful that the timing of the Bill's passage through
Parliament will allow it to be passed before the next General
Election and therefore fulfil the Government's manifesto commitment
to enact further disability discrimination legislation. If this
is the case, Skill would otherwise be concerned that that the
bill may be lost because of the onset of a General Election, or
be difficult to implement because of the disbanding of the Disability
Rights Commission and the establishment of the Council for Equality
and Human Rights.
2 Omission of general examinations bodies
2.1 Skill recommends
that the Draft Bill be amended to include general examinations
set by awarding bodies. The Disability
Rights Task Force Report on the DDA recommended that Qualifying
and Awarding bodies be covered by the DDA Part 2 Employment. The
then Minister, Margaret Hodge, accepted the report. It was believed
by Skill and the DRC that this would mean all qualifications awarded
by these bodies would be covered by the DDA, allowing reasonable
adjustments to be made. The Department for Work and Pensions,
in implementing article 13 of the European Treaty by Statutory
Instrument, has ruled that this is not so, and that general examinations
will not be covered.
2.2 An anomaly now
remains. This provision needs
to be brought in as soon as possible after the Act is passed,
preferably by September
2005. Skill would suggest that it be
brought in under the provisions of the DDA part 4: Education.
2.3 Skill and the DRC believe that coverage
of those examinations by the DDA is essential to building effectively
and successfully the transition plans the Government has in its
Green Paper 'Every Child Matters', the Additional Learning Support
for Learning (Scotland) Bill, widening participation plans in
the HE Bill, and through the LSC inclusive learning programme.
2.4 Without the inclusion of general
examinations in the DDA, disabled people who are covered by legislation
at school and then at college or university or work, are not protected
when they undertake external general examinations. This is a substantial
gap in the legislation and may prevent disabled people from progressing
onto their chosen area of work or study.
2.5 Skill recognises that the Joint
Council for General Qualifications Bodies1 (JCGQ) issues
Regulations and Guidance relating to candidates with particular
requirements. In Scotland, the SQA has Guidance on Special Assessment
Arrangements. However this guidance is discretionary,
and does not cover all eventualities.
There are some students who have difficulties in getting their
needs met in examinations and who have no redress at present.
Because of the complex nature of some students' disabilities,
it is proving very difficult for awarding bodies to apply the
principles set out in the JCGQ guidance consistently. We have
evidence from families (in the attached supporting evidence) to
show the requests made to the awarding bodies, the difficulties
encountered and the ensuing impact on young disabled people and
their families.
2.6 Even though the draft disability
discrimination bill will include a public duty to promote equality
of opportunity, these bodies will not be covered by that duty,
as they are private companies.
2.7 It will be very confusing for all
concerned to have some qualifications covered by disability legislation
and others not. With the introduction of vocational GCSEs and
the Scottish Credit and Qualifications Framework, Skill believes
that the differentiation of 'general qualifications' is unsuitable
and could lead to judicial review. Skill includes an example (attached
to this briefing) of a student who has been discriminated against
by an exam board because of his disability. This shows the difficulty
that students can have in securing the reasonable adjustments
they need to succeed in their examinations and therefore progress
onto further education, training or employment.
1 The
Joint Council for General Qualifications consists of AQA, Edexcel,
OCR, WJEC/CBAC, CEA
Skill would recommend that the Scrutiny Committee
recommend to the Government that the Draft Disability Discrimination
Bill should include general examinations set by awarding bodies.
3 Governors
3.1 Skill welcomes the fact that the
Draft Bill includes Local Councillors. Local Councillors play
an important role in local communities and it is essential that
disabled people are able to be a part of this, and put themselves
forward as Councillors, without the fear of discrimination.
However, Skill is
disappointed that Governors and Board Members in schools, colleges
and higher education are not covered by the Bill, and would recommend
that this be added to the Bill. With
the recent introduction of the Special Educational Needs and Disability
Act, it is pertinent that disabled people are given opportunities
to take part in school and college life and have an influence
in education. Governors and Board Members provide a role model
for disabled students, are able to set examples of good practice,
and would be best placed to ensure that their needs are met and
opinions are considered.
4 Scotland
4.1 The Special Education Needs and
Disability Act 2001 did not give disabled school pupils the right
to auxiliary aids and services because it was expected that this
would be covered within the schools SEN Framework. However, at
Stage Two in the Scottish Parliament process, the Additional Support
for Learning (Scotland) Bill does not ensure that all disabled
pupils have this right. Skill recommends that
the Draft Disability Discrimination Bill
should give all disabled pupils a right to
auxiliary aids and services in school if
the Additional Support for Learning (Scotland)
Act does not do so.
4.2 In addition,
Skill recommends that the Draft Bill should state that disability
discrimination cases in schools in Scotland can be taken to the
newly established Additional Support for Learning Tribunals. This
would avoid creating a two-tier
system of redress in Scotland, and set up a similar system to
that already used in England.
5 Volunteers
5.1 Skill welcomes the fact that the
Bill implements many of the recommendations made by the Disability
Rights Task Force. One key DRTF recommendation was that a power
be taken in civil rights legislation to bring volunteers into
coverage through regulations. This has not yet been implemented.
Skill recommends that the provisions of the
Bill be widened
to cover disabled volunteers.
5.2 Under the current provision disabled
volunteers can be lawfully discriminated against by organisations
in areas of recruitment, retention, on going development/training
and dismissal. Whilst volunteers can seek legal redress under
the Sex Discrimination Act and the Race Discrimination Act, no
such rule applies under the
Disability Discrimination Act 1995.
A Code of Good Practice or a provison of protection under the
remit of present civil rights legislation as set out by the Taskforce
would have help towards redressing this legal inbalance. Research
has shown that disabled volunteers are underrepresented as a group.
The general reasons centre on the culture and image of volunteering
and the practical difficulties involved. We feel the voluntary
sector should be encouraged to mirror the public sector duty but
also to promote volunteering opportunities for disabled people.
This would go a long way towards breaking down barriers and could
form a part of the recommended Code of Practice addressed above.
5.3 Our experience of working with disabled
volunteers in our London and Edinburgh offices has found that
volunteering can and does lead to improving individuals' future
prospects, providing a much needed route into paid employment.
The latter is hugely significant in light of the fact that disabled
people are eight times as likely to be unemployed compared with
non-disabled people.
5.4 Skill supports the DRC's view that
it would be helpful were available to support work related adjustments
for volunteers, operating in a similar fashion to the Access to
Work scheme. We would urge the Joint Committee to recommend that
the DWP consult on setting up such a fund.
Skill Policy Team
February 2004
Skill: National
Bureau for Students with Disabilities
Draft Disability Discrimination Bill
Evidence to the Parliamentary Scrutiny Committee
Summary
Skill recommends that the Scrutiny committee
recommend to the Government that the Draft Disability Discrimination
Bill should include general examinations se by awarding bodies.
The Disability Rights Task Force Report
on the DDA recommended that Qualifying and Awarding bodies be
covered by the DDA Part 2 Employment. It was believed by Skill
and the DRO that this would mean all qualifications awarded by
these bodies would be covered by the DDA, allowing reasonable
adjustments to be made. Without the inclusion of general examinations
in the DDA, disabled people who are covered by legislation at
school and then at college or university or work, are not protected
when they undertake these examinations. This is made even more
important because of the complex nature of some students' disabilities,
which can make it very difficult for awarding bodies to apply
the principles set out in the JOGO guidance consistently.
- Skill recommends that Governors
and Board Members of schools, colleges and higher education be
included in the Draft Bill.
Governors play an essential role in
school and college life, as Councillors do in local communities.
Skill welcomes the fact that the draft Bill includes local Councillors
and would recommend that school and college Governors are covered
in the same way. This is especially pertinent given the recent
introduction of the Special Educational Needs and Disability Act.
- Skill recommends that the Draft
Disability Discrimination Bill should give all disabled pupils
a right to auxiliary aids and services in school if the Additional
Support for Learning (Scotland) Act does not do so. In addition,
Skill recommends that the Draft Bill should state that disability
discrimination cases in schools in Scotland can be taken to the
newly established Additional Support for Learning Tribunals. This
would avoid creating a two-tier system of redress in Scotland,
and set up a similar system to that already used in England.
- Skill recommends that the provisions
of the Draft Bill be widened to cover disabled volunteers.
One key DRTF recommendation was that
a power be taken in civil rights legislation to bring volunteers
into coverage through regulations. This has not yet been implemented.
Research has shown that disabled volunteers are underrepresented
as a group. Moreover, volunteering can and does lead
to improving individuals' future prospects,
providing a much needed route into paid employment.
Skill: National Bureau for Students with Disabilities
Evidence to the Parliamentary Scrutiny Committee
Supporting evidence
Case studies of disability discrimination
in general examinations
These case studies are taken from real
enquiries to the Skill information service and to Skill policy
staff. Please note that there are three examination boards in
England: AQA (Assessment and Qualifications Alliance), Edexcel,
and OCR. The examples below all relate to one of more of these
exam boards.
Example
Skill was contacted by a parent who
had been fighting to get her son the support he needed in his
exams. The student in question has cerebral palsy and Asperger's
syndrome. His school applied to the exam board for four adjustments
in his exams; a scribe, extra time, a prompter, and a reader.
These requests would make up the exact nature of support he had
received from his special support assistants at school, and with
which he had succeeded well. These adjustments were not accepted
by the exam board, and during year 10, the student's SENCO (Special
Educational Needs Coordinator) constantly wrangled with the exam
board to get support in place. Adjustments were given, revoked
and changed throughout the year. Full evidence was given as to
why these adjustments were required, but were not taken into consideration.
Eventually the exam board agreed to
three out of the four adjustments, but refused the reader, on
the grounds that the student had a reading age of over 10. The
student's request for a reader, as backed up by diagnostic evidence,
was because although his reading accuracy was good, his speed
of reading adult level material was equivalent to the age of six
years 10 months. The student underwent further assessment of his
learning difficulties, which was again presented to the exam board,
through their appeals procedure. The appeal was turned down, on
the grounds that his reading accuracy was above the age of 10
years, again not understanding his difficulties with reading speed.
Finally, after consulting an optometrist, at the advice of the
educational psychologist, the exam board conceded that the student
should be allowed a reader for his exams.
If the student had not been granted
a reader, the school had explained that they would not enter him
for English Language and Literature, as they believed he would
not have any chance of success and it would therefore be unfair
to put him through those examinations. The Education Reform Act
1988 states that students should be entitled to a broad curriculum,
and the lack of reasonable adjustment may mean that a student
is denied that entitlement. In the end, this student received
a C grade for English Literature and a D for language. If his
reader had been denied he would have missed out on the chance
of achieving two good GCSE grades.
This is an incredibly arduous and stressful
process to have to go though, and in the above example took 2
years to be resolved. It is likely that many parents, and indeed
teachers, would give up before reaching what they see to be a
satisfactory outcome. It can also be costly. In this case-, the
parents employed a solicitor to advise them, and added to the
cost of commissioning specialist reports, cost around £3000.
Presently, it seems that the advantage
is always with the awarding body. It is they who decide which
evidence they will and will not accept. In the case above, why
did the exam board accept evidence from an optometrist concerning
the student's needs and not from previous reports by educational
psychologists and other experts?
Moreover, it is unfair on the young
person involved to make them go through so much testing and assessment
to 'prove' that the adjustments they have requested are legitimate.
Exam boards are right to request evidence of disability, but it
should not be necessary to constantly repeat that process. It
is both stressful for the student and costly for the parents.
Example
Skill was contacted by a parent whose
son has dyspraxia and has difficulties writing. He uses a laptop
in class and for his homework In the run-up to his SAT exams in
year nine, there were concerns that he would have difficulties
and not be able to use his alphasmart laptop (which he uses in
his lessons) in his exams. The student had been supported by an
excellent Special Educational Needs Co-ordinator (SENCO) through
school, who worked hard to get him the reasonable adjustments
he needed for his studies. When the student took his science SATs,
the SENCO asked the exam board if they would provide the science
papers (which have boxes for pupils to fill in the information)
in an 'on-line' format, ie on a cd rom or disk. The exam board
refused.
The student was therefore required to
type his answers to the questions in a blank document, cross-referencing
his answers with the paper based question paper. This clearly
put him at a disadvantage compared to other student who had the
paper with allotted boxes and spaces to fill in their answers.
He would also have found it more difficult to reference the appropriate
information because of having to switch his focus from the paper
to his computer screen.
The student is now approaching his GCSE
examinations, and currently his science teacher has decided that
he should write his science paper by hand. If the student is required
to write his exam paper by hand, he will have a number of difficulties.
Firstly, his writing is illegible. Secondly, he finds it difficult
to control a pen, and therefore the concentration that would be
required for him to handwrite would go on controlling the pen,
and he would also become very tired and so write less. Both the
quality and quantity of his exam paper would therefore be affected.
An alternative reasonable adjustment
suggested by the exam board was that he could use a scribe and
dictate the answers. However, the student, due to his disability,
does not have good speech. In fact, his speech deteriorates when
he is under stress, so he would be disadvantaged by using a scribe.
Furthermore, using a scribe is a very particular skill that needs
to be developed over a number of years. The alternative arrangements
suggested for the exam would not enable the student to perform
effectively or make appropriate reasonable adjustments for his
disability.
The lack of appropriate reasonable adjustments
will have a serious impact on the student's academic success at
this stage, and will significantly reduce his career choices at
a later stage.
We are not aware of an explanation of
why the awarding body was not able to supply the question paper
in an on-line format. In Skill's view, security of the question
paper in an electronic format would not be an issue. It would
be perfectly secure to send a floppy disk or cd rom with the question
paper, in the same way as paper based questions are sent. The
disk could be loaded and removed under supervision, in the same
way that papers are given out and collected.
Example 3
Skill was contacted by a parent whose
daughter was diagnosed with a form of dyslexia at the age of 17.
She has a 'normal' reading age but a reading comprehension of
seven years. This was diagnosed by an educational psychologist.
The student attended a sixth form college
who gave her a reader for her classes and her exams and this worked
well. The exams were all taken with one particular exam board.
She then moved to another college where they used different examination
boards. This second college picked up that she should not have
had a reader unless her reading accuracy was below the age of
12. Therefore, because she has a normal reading age (her difficulties
are with comprehension and not reading in itself) she has been
refused a reader in exams. She has been allowed an extra 25% extra
time. The college have requested that she has a reader as everybody
can clearly recognise that the student has this difficulty and
will not pass her exams without such help. Unfortunately the exam
boards are refusing to change their position. The college are
appealing on behalf of the student and her father will pay for
her to have a further educational psychologist's assessment to
present as further evidence to the exam boards.
The student has had difficulties not
only because of a lack of understanding of the complexities of
her impairment, but also because of inconsistent application of
JCGQ guidelines by different awarding bodies, and inflexibility
on the part of the awarding bodies. The student is keen to become
a nurse,
but is concerned that this aspiration
will not be fulfilled as without a reader will not be able to
get into higher education due to not having the necessary support
that she needs now.
Skill; National Bureau r St dents with Disabili 5
chapter House, 18- Cru& ix Lane, London
I 3JW Tel: 020 7450 062 Fax: 0 7450 0650 ail skilI~skiIl.org.uk
For further info ation or clarification
lease contact Barbara Waters, Chief Executive, or ate God ard,
Polic fficer.
4
| 
