The responsibilities of Higher Education Institutions toward its disabled students have not been fundamentally altered by the Equality Act 2010 – they remain broadly the same as they were under the Disability Discrimination Act.
Guidance from the EHRC
The Commission has produced guidance on people's rights and responsibilities under the further and higher education requirements of the Equality Act
A person is a disabled person (someone who has the protected characteristic of disability) if they have a physical and/or mental impairment which has what the law calls ‘a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities’.
There is no need for a person to have a medically diagnosed cause for their impairment; what matters is the effect of the impairment not the cause.
In relation to physical impairment:
- Conditions that affect the body such as arthritis, hearing or sight impairment (unless this is correctable by glasses or contact lenses), diabetes, asthma, epilepsy, conditions such as HIV infection, cancer and multiple sclerosis, as well as loss of limbs or the use of limbs are covered.
- HIV infection, cancer and multiple sclerosis are covered from the point of diagnosis.
- Severe disfigurement (such as scarring) is covered even if it has no physical impact on the person with the disfigurement, provided the long-term requirement is met (see below).
- People who are registered as blind or partially sighted, or who are certified as being blind or partially sighted by a consultant ophthalmologist, are automatically treated as disabled under the Act.
- Mental impairment includes conditions such as dyslexia and autism as well as learning disabilities such as Down’s syndrome and mental health conditions such as depression and schizophrenia.
The other tests to apply to decide if someone has the protected characteristic of disability are:
- The length the effect of the condition has lasted or will continue: it must be long term. ‘Long term’ means that an impairment is likely to last for the rest of the person’s life, or has lasted at least 12 months or where the total period for which it lasts is likely to be at least 12 months. If the person no longer has the condition but it is likely to recur or if the person no longer has the condition, they will be considered to be a disabled person.
- Whether the effect of the impairment is to make it more difficult and/or time-consuming for a person to carry out an activity compared to someone who does not have the impairment, and this causes more than minor or trivial inconvenience.
- If the activities that are made more difficult are ‘normal day-to-day activities’ at work or at home.
Whether the condition has this impact without taking into account the effect of any medication the person is taking or any aids or assistance or adaptations they have, like a wheelchair, walking stick, assistance dog or special software on their computer. The exception to this is the wearing of glasses or contact lenses where it is the effect while the person is wearing the glasses or contact lenses, which is taken into account.
Someone who has ADHD might be considered to have a disability even if their medication controls their condition so well that they rarely experience any symptoms, if without the medication the ADHD would have long-term adverse effects.
Progressive conditions and those with fluctuating or recurring effects are included, such as depression, provided they meet the test of having a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.
Public Sector Equality Duty (taken from the Equality and Human Rights Commission’s website)
The broad purpose of the equality duty is to integrate consideration of equality and good relations into the day-to-day business of public authorities. If you do not consider how a function can affect different groups in different ways, it is unlikely to have the intended effect. This can contribute to greater inequality and poor outcomes. The general equality duty therefore requires organisations to consider how they could positively contribute to the advancement of equality and good relations. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.
Compliance with the general equality duty is a legal obligation, but it also makes good business sense. An organisation that is able to provide services to meet the diverse needs of its users should find that it carries out its core business more efficiently. A workforce that has a supportive working environment is more productive. Many organisations have also found it beneficial to draw on a broader range of talent and to better represent the community that they serve. It should also result in better informed decision-making and policy development. Overall, it can lead to services that are more appropriate to the user, and services that are more effective and cost-effective. This can lead to increased satisfaction with public services.
Institutions are under a duty, when carrying out their functions, to have regard to the need to: promote equality of opportunity between disabled and other people; eliminate discrimination and harassment; promote positive attitudes to disabled people; encourage participation by disabled people in public life, and take steps to meet disabled people’s needs, even if this requires more favourable treatment.
Institutions are also required to publish a disability equality scheme, which is required to show how the institution is meeting its general duty to promote disability equality across all of its areas of responsibility.