Glad to see colleagues from across the sector at yesterday’s training event run by Understanding ModernGov – HEinFE, HEIs, alternative providers etc. Broad range of topics discussed and debated. Interesting input from all presenters; legal, policy, models of support. Useful to re-visit some of the legal aspects the approach taken at De Montfort (which is flagged as an example of good practice) where several work streams are being taken forward – many of which are evident in a range of HEPs – so very positive to see. Some providers have opted out of DSA-QAG audit for NMH support. Notably Cambridge and Imperial but of interest today were a couple of ‘less well resourced’ HEPs opting out because of pragmatic reasons: not least the bureaucratic burden this places on already stretched resources.
The notion of complexity of support needs was mentioned again as it is in the recent Welsh Government commissioned report especially in reference to dyslexia. As I understand it the line which DfE/SLC (in HE that is) have taken is that dyslexia is a disability for DSA purposes and as they are following the Equality Act 2010 then the logical conclusion might be that it is a disability. However, it could be political expediency because of the DSA context and debates there have been recently within the sector. It doesn’t look like that’s the case in the schools sector: you could be dyslexic but not considered disabled because the support required is not ‘complex’ enough and/or your SpLD is ‘mild’. Not sure where the case law is on this but it would be interesting to see in terms of the debate around reasonable adjustments.
Also discussions about at what point the provider is legally obligated to provide reasonable adjustments for someone without the necessary paperwork to indicate an impairment. Anticipatory adjustments (such as inclusive teaching practice) should be in place. The potential for providers to pay for assessment/diagnosis (I use this term but apparently there doesn’t have to be a ‘diagnosis’ rather the emphasis is on the impact of a physical or mental impairment) as a reasonable adjustments was also suggested since legally providers are not allowed to charge for a reasonable adjustment.
Most HEPs are referring out to diagnosticians such as GPs and educational psychologists and providing financial help with paying for this, so whether this is seen as illegal is open to question. But then the idea of whether the provider could insist on paperwork was discussed. Taking a reasonable approach was mentioned. So with some learners it is very evident that there is an impairment but when 100+ students a year are walking in and saying they ‘think they might be dyslexic’ for instance; is it reasonable to put in place a DSA-equivalent support package until you find out for definite? If you can provide some level of support until you can get a clearer picture this may prove reasonable (perhaps!). Greg Boone from the Department for Education did say that re-assessment for SpLD students who are already diagnosed pre-16 was being reviewed. See this BBC story for more on this.
One of the policy instruments which complicates the picture in HE of course, is that reasonableness is partly based on other funding which is available, namely DSA for UK students. So in those cases it would likely be reasonable that you ask the students to make a claim for DSA at which stage they would need to provide confirmation of impairment to SFE/SLC. It is unlikely to be seen as reasonable that you provide a DSA-equivalent package for students who are eligible for, but refuse to apply for DSA.
Employment case law suggests that many cases are thrown out because a disability cannot be established so this is something which clearly is a contentious area and SLC now insist on paperwork which definitely establishes impairment as defined by the Equality Act before DSA will be disbursed – therefore not sure why that wouldn’t be the case for an HEP – i.e. not putting support in place until an EA2010 defined impairment is established. But it was suggested that SLC might be acting illegally*. As usual, in the area of disability and HE, there is very little case law to rely on to guide the sector and policy guidance is ambiguous (ECU guidance suggests that finances may not be an excuse for HEPs given the overall resources which are available but advice today seemed to suggest that it depends – on how big a provider you are and what else you have been doing in relation to support for disabled students).
*As a postscript to this, I read this morning in an archived NADP jiscmail posting, that SFE’s emphasis is now on demonstrating impact and for some students that have previous paperwork they might ask them to get more recent information that demonstrates impact. Which is in line with the Equality Act 2010.