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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