The first part of this blog discussed the context and facts of the case of Abrahart, as well as how the judgment interpreted the difference between competence standards (exempt from the reasonable adjustment duty) and assessment methods (which are subject to the duty). This second part discusses further points of significance arising from the case.
Due Process
The University argued that it had not made relevant adjustments because, in the interests of fairness to other students, alterations to assessments could only be made after specified institutional procedures had been carried out and expert medical evidence and advice from Disability Services obtained ([206]-[207]). Relevant processes had not been completed because they required initiation by Natasha and, despite repeated encouragement, this had not happened.
Linden J upheld the first instance ruling that the University should not have waited for medical evidence and a Disability Support Summary before making adjustments. In his words: ‘A degree of procedural formality will…generally be appropriate…But …[t]here may be circumstances, such as urgency and/or the severity of their condition, in which a court will be prepared to conclude that it is sufficient evidence for an educational institution to be required to take action.’ [267].
This point is particularly important in cases such as Abrahart, where it is unrealistic to expect the student concerned to instigate or complete standard procedures because of their impairment or health condition. Systems requiring this risk further exacerbating impacted students’ anxiety.
Identifying Possible Adjustments
In response to the emphasis placed by the University on Natasha’s lack of engagement with its processes for seeking reasonable adjustments, both the County Court judge and Linden J stressed that the s 20 duty in the EqA was imposed on educational institutions, not on disabled students [163]. The fact that a student such as Natasha does not request specific adjustments does not absolve universities of their duty to identify and make reasonable adjustments.
Anticipatory Nature of the Duty and Universal Design for Learning (UDL)
As Linden J stressed, the reasonable adjustment duty on post-16 education establishments is ‘anticipatory’, requiring them to ‘proactively consider what adjustments might be reasonable whether or not an issue has (yet) arisen in relation to a particular individual’ [158]. Although not discussed in this case, universities would be well advised to anticipate the disadvantage which particular types of assessment might cause to different groups of disabled students and take steps to address this by embedding UDL in assessment processes from the outset.
Tackling Disadvantage
Finally, as Linden J noted, the purpose of the reasonable adjustment duty is to remove or, if this is not possible, reduce a disadvantage to which a disabled person would otherwise be subject [154]. Regrettably, however, he also cited [148] with approval the rather unhelpful dictum of Baroness Hale in Archibald v Fife Council that reasonable adjustment ‘necessarily entails an element of more favourable treatment’. Different treatment, responsive to different circumstances, is what equality demands – the reasonable adjustment duty does not require disabled students to be advantaged. It simply requires steps to be taken to stop them being disadvantaged – even when, as in Archibald, doing so might arguably confer a level of advantage on them.
Conclusion
The ruling in Abrahart is unquestionably to be welcomed. Based as it is on a careful and considered application of the EqA, it highlights the ambition and potential of such legislation to challenge and overturn standard institutional practices and demand alternative, more inclusive and flexible approaches.
The radical change required by Abrahart is consistent with that required by the UN Convention on the Rights of Persons with Disabilities (CRPD), ratified by the UK in 2009. Article 24 of this treaty requires States to make education, including tertiary education, ‘inclusive’ and is the subject of General Comment No 4 Of the UN Committee on the CRPD. This encourages States to ensure that a UDL approach is applied to assessments, whereby ‘standardised assessments’ are ‘replaced by flexible and multiple forms of assessments’ [25].
Abrahart powerfully demonstrates the very real human impact of failing to build UDL into assessment methods. It also demonstrates that failure to make adjustments to such methods will sometimes breach the EqA even in the absence of medical evidence. It thus represents a triumph for a less medical and more human rights or social model approach to disability.
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