Joint Committee on the Draft Disability Discrimination Bill Written Evidence


Memorandum from Skill: National Bureau for Students with Disabilities (DDB 35)

1.  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 Bodies[60] (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.

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

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.

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 1

  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 2

  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 students 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.



60   The Joint Council for General Qualifications consists of AQA, Edexcel, OCR, WJEC/CBAC, CEA. Back


 
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