Response to the guidance on Disabled Student Allowance from Disability Rights UK
Introduction
Disability Rights UK is a membership organisation composed of disabled people leading change. We work to achieve the full participation of disabled people in society and see the acquisition of education and training as being central to this. We run helplines for disabled students and produce publications to support this policy objective, specifically “Into F.E.”, “Into H.E.” and “Into Apprenticeships.”
Consultation
We welcome this opportunity to respond but are surprised that upon visiting the web link the invitation to comment does not include the policy itself or whether there are alternatives to the desired policy objectives. We would like to learn who has been notified of this opportunity and how the views of disabled students themselves have been obtained other than through their representative organisations.
Our response falls into four sections: 1) the policy itself, 2) the exceptional case process, 3) the appeals process and 4) annex B.
Policy
Disability Rights UK opposes these policy announcements, not because we don’t wish to see universities play their part in making reasonable adjustments but for the following reasons:
1) It contravenes the principle that the funding should flow to the individual and not the establishment a principle accepted by DWP in endorsing the Sayce led review of employment support
2) It is counter to the notion that the student should be able to exercise choice and control over the support they wish to access – a principle being exercised in many other parts of government e.g. DoH
3) It removes the support that provides a level playing field for students applying to universities so that a student comes with the support and the universities are not incentivised to reject students on the basis that the student may require a support package greater than the tuition fees they would pay
4) It is likely to reverse successful trends by Government in supporting disabled students to achieve degrees – note the Randstad survey that four out of five students may be disincentivised from attending university. A survey released by Wriglesworth Consultancy and commissioned by Randstad on July 8th 2014 quoted the findings of a survey of more than 200 students, “More than one in three students with a disability (34%) say they would definitely not have attended university without DSA support, while a further 36% are unsure if they would have originally attended. Less than one in three students with a disability (30%) would still definitely have decided to go to university without the support of the DSA.”
5) It runs counter to where real savings could be found because the long term savings are from moving disabled people off benefits and into employment. This is a significant outcome from Disabled Student Allowance. A 2007 National Audit office report found that those students obtaining Disabled Student Allowance were more likely to continue their course (http://www.nao.org.uk/report/staying-the-course-the-retention-of-student...). Higher retentions produce higher pass rates with the consequence that there will be more disabled students obtaining jobs, being higher earners and paying more tax. We would hope that the Government could share any cost benefit analysis of the policy changes proposed.
6) If a student felt that their university had failed to instigate reasonable adjustments it puts the student in the adversarial position of having to take their university to court or account, this would be very unlikely as it would require the student to expend money time and resources in legally challenging the very body who’s help they would need in every other aspect of their studies in order to pass their degree
7) Since only the courts could decide what constitutes reasonable adjustments it would move the eligibility test from the student’s assessment to the courts. Reasonable adjustments vary with the financial capacity of the university and thus there would no longer be a level playing field between the universities, for example the Russell group of universities could be better placed to instigate reasonable adjustments than schools of performing arts. It is already the case that there is considerable variance between the proportions of disabled students in different HE institutions.
8) Disability Rights UK understands that the Government gave assurances during the passage of the Children and Families Bill that there would not be a need to include universities within the scope of the legal powers of the bill because disabled student allowance was available to the students and provided the necessary protection or support
9) The policy proposals fail to offer the prospect of adequate support for students with dyslexia or multiple disabilities and appear to start from the false premise that people without complex needs do not require any support other than that provided by the university. The terms complex and non complex have never been defined.
10) The mitigation measures so far advanced do not address the basic problems of how can disputes be resolved in a satisfactory time period – two months has been spoken off but if a student cannot attend lectures during this period, if the period coincides with exams or the student cannot engage with course material then it is highly likely they will simply leave their course. Lawyers familiar with the time taken to deal with disputes mention that 18 months is not uncommon, so where are the safeguards on time. They simply do not exist at present.
It is our recommendation that the policy changes described in this guidance are not pursued.
The Adjudication Process
Background
The LDDA strongly supports the objective of the modernisation of the DSA to ensure that universities fulfil their duty under the Equality Act to make reasonable adjustments. To us the most important aspect of the guidance is what happens if a university decides that the reasonable adjustment a student requests is not reasonable. How easy will it be for a student to resolve this problem with their education provider. In considering this we think it is important to remember that the student might be only 18 years old, might have significant disability needs which impact on their ability to seek redress, and this process puts them into conflict with the university who are providing their education.
The problems
- Only 170 of 330 HEFCE funded universities are members of the LIA at present though consumer legislation ahs been amended to give students in private universities the same right to complain, it will take time for this legislative change to bed in.
- Further Education colleges who provide Higher Education are not currently members of the LIA.
- Whilst the average case takes two months to be addressed by the OIA, cases can last up to 18 months.
- The OIA makes no reference in its regulations to the Equality Act 2010 or to the requirement to make reasonable adjustments.
- The OIA only considers university policies which could predate the Equality Act September 2012.
- Where a student wishes to seek redress in the County Courts this can cost £35,000 which is beyond the financial means of most students.
The solutions
- All HEFCE funded universities are invited to join the OIA and where they opt not to do this are required to state what alternative they propose to put in place and this must be approved by BIS.
- All Further Education colleges to be invited to join the OIA and again to state what alternatives will be put in place which must be approved by BIS.
- The BIS guidance should clearly recommend that universities should make use of independent mediation when considering Equality Act reasonable adjustments in order to ensure that cases are managed promptly
- OIA regulations should be revised ensuring they make specific reference to the Equality Act 2012 and the making of reasonable adjustments for students.
- Universities should be invited to update all their policies which relate to learning and teaching in the context of the 2012 Equality Act and the OIA should be encouraged to draw to universities attentions how policies have not taken account of the Equality Act in their decisions.
- BIS should provide a fund which students can apply to for meeting the legal cost of taking cases under the Equality Act 2010.
The Exceptional Case Process
Ensuring Student Retention
The LDDA is greatly concerned about what the impact will be on a disabled student’s retention on course should the student request a reasonable adjustment that the university decides is not reasonable. We anticipate in many cases the student will need to begin by addressing this issue informally with the appropriate department in the university, then pursue their case through the universities formal complaints procedure before eventually approaching the Office of the Independent Adjudicator (OIA). It would be reasonable to assume that it would take a student at least one month to progress their case through the informal and formal university procedures and at least two months for their case to be addressed by the OIA. This means that the student will need to spend at least three months without the support that they deem “reasonable”.
We are concerned about the serious impact not having support the student deemed appropriate will have on the student’s retention. This will be exacerbated by the significant stress and additional intellectual demands that will result from having to progress through the university and OIA’s procedures.
We see a great opportunity that we would like to bring to your attention which carries benefits both to the university, the student and BIS. You will be aware that BIS are establishing an exceptional case process. Needs assessors will be able to approach SFE to request that they consider resourcing NMPH support in exceptional circumstances. We would like to recommend that where a student requests their university provides Band 1 or Band 2 NMPH support but the university does not consider this reasonable that the student should be permitted to contact their needs assessor to request that their case is considered through the exceptional case process. SFE would then be in a position to resource the NMPH support throughout the three month period where the student is progressing through the university and OIA complaints process. We see the benefits for the university, student and BIS in the following ways:
The University
The university is not required to resource the NMPH support which they do not deem reasonable until this has been formally agreed by the university or OIA. At the same time the student receives the support increasing their likelihood of being retained on course. This has two benefits, firstly the student continues to pay fees thus maintaining the income of the university. Secondly in the event of the OIA (or County Court) determining that the NMPH support is a reasonable adjustment if the student has not withdrawn from the program of study and has been provided with appropriate support on course the compensation the university will either not be required to pay any compensation at all or the compensation will be small. If however, the student does not receive support and is required to withdraw, the university will both loose the fee income and may be liable for significant levels of compensation.
The Student
By receiving SFE funded NMPH support in lieu of the university/OIA decision on reasonableness the student will be able to continue on course, be in a better position to evidence base why the NMPH support is required will be appropriately supported at a time when they are under significantly increased pressure, managing all the demands of the complaints process, and most important of all will avoid the very significant and serious implications of withdrawing from the program of study.
BIS and the taxpayer
By resourcing NMPH support to ensure a student is able to remain on course BIS will not have to resource additional years of tuition fee loans and maintenance awards the student will be significantly more likely to complete their program of study, enter employment, and in the long term repay the tuition fee loans thereby reducing the burden on the taxpayer. In addition by making this facility available BIS will be able to further its objective of ensuring universities make the reasonable adjustments disabled students need and fulfil their duties under the Equalities Act. Universities would know that if they lost the case they would be required to reimburse SFE for the full cost of the NMPH support they have implemented and knowing this will happen will be a significant disinsentive to them deciding not to resource the provision of NMPH support. Thus you can see all parties benefit from this approach but the greatest benefit lies with the government who effectively incentivise universities to fulfil their legal obligations
Annex B
The LDDA strongly supports the inclusion of Annex B in the BIS Guidance. It considers BIS providing clear guidance to universities on the reasonable adjustments that they should make for disabled students to be integral to the major objective of the modernisation of ensuring universities fulfil their legal obligations under the Equality Act to make reasonable adjustments for disabled people. At first glance it appears Annex B is a detailed statement of the reasonable adjustments universities should make. The LDDA however has recently become aware that actually Annex B is merely a list of reasonable adjustments that universities have reported to BIS that they make, i.e. they are examples not recommendations from BIS. The LDDA is concerned that because it is examples, rather than recommendations, universities are likely to conclude that this just indicates what some universities have decided to do and in no way indicates that it is appropriate for every university to do.
The LDDA strongly recommends that Annex B is revised setting out the good practice that BIS recommends all universities adopt. Drawing on the expertise available to the association we have prepared a draft of what a revised good practice statement might contain. We hope you will be happy to recommend to the Minister for Higher Education that this section of the guidance is revised in accordance with our recommendations.
Conclusion
We wish to see the policy proposals reversed but have also sought to offer solutions to ensure that if they are proceeded with they are as fair and workable as possible. However we stress that mitigation measures can not be expected to achieve the same results as the previous system delivered.
Philip J Connolly
Policy and Communications Manager
Disability Rights UK
Can Mezzanine
49-51East Road
London
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0207 250 8192