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.

Facts

Natasha Abrahart, a second year undergraduate Physics student, died by committing suicide when she should have been giving an assessed group presentation. This assessment was part of a compulsory module which included five other oral assessments, in the form of interviews – all of which Natasha had either not attended or in which she had performed badly. The main question before the High Court was whether the University had discriminated against Natasha in failing to adjust the format of these assessments.

In October 2017, before the first of the assessed interviews, the University was unaware that Natasha might be experiencing mental health difficulties. After this time, staff repeatedly advised her to contact the Counselling Service, her doctor, and Disability Services. Natasha did not do so. In late February 2018, her housemate (on her behalf) told the School Administration Manager that Natasha had acted on suicidal thoughts and requested help. Natasha then saw a doctor who diagnosed depression and ‘chronic social anxiety with suicidal ideation’ – but this was not communicated to the School of Physics. The School encouraged Natasha to identify alternative ways in which the assessments might be conducted – eg in writing – and sent a form through which Natasha could request that account be taken of her ‘extenuating circumstances’. Natasha did not suggest alternative modes of assessment, nor complete the form. She continued to receive generic module emails about the upcoming assessed group presentations – on the day of which she ended her life.

Linden J held that the University had breached the EqA through discrimination arising in consequence of Natasha’s disability, contrary to s 15; as well as because of its failure to comply with the s 20 reasonable adjustment duty. He described the latter as the ‘heart’ [12] and ‘beginning and end’ [140] of the case. The present discussion will therefore focus on this point.

Competence standards

Abrahart indicates that education providers must be particularly attentive to the distinction between a competence actually being assessed and the methods used to carry out that assessment – the former, but not the latter, falling outside the scope of the s 20 reasonable adjustment duty (sch 13(4)). The University argued that oral communication was itself a competence being assessed. Linden J, however, rejected this view – drawing on the module’s “independent learning outcomes” and marking criteria to rule that oral communication was not itself a competence standard and that the interviews and group presentation were merely methods of assessment ([172]-[202]) – and therefore subject to the reasonable adjustment duty.

The second part of this blog will discuss further points of significance in the case, including due process, the duty of educational institutions to identify possible reasonable adjustments, and the anticipatory nature of the duty to make reasonable adjustments.

One of the many positive contributions of the Indian Supreme Court’s decision in Vikash Kumar v UPSC is its call for reflection or ‘introspection’ about the relationship between ‘the language of our discourse’ on disability and the ‘path which our society has traversed and the road that lies ahead’ (para 1). It recognised that such language has an ‘enduring impact in shaping the way the society views the disabled and the way they view themselves’ – even if those using it are unaware of the risk of negative consequences and do not intend harm (para 68). It urged that the language used must ‘evince a clear desire to make the disabled feel empowered and included’ rather than ‘alienated and situated … on a pedestal or in a cage’ (para 67); and must reflect a ‘human rights model’ rather than a ‘medical model’ and must not offend ‘the human dignity of persons with disabilities’ (para 68). The Court expressed ‘our earnest hope’ that the paradigm-shifting conversation about the rights and status of the disabled … will find a resonance in the language we use’ (para 69).

Disability rights activists and scholars have long recognised that the choices they make about disability-related terminology matter. Indeed, as discussion lists such as Disability Research demonstrate, questions about terminology continue to generate requests for guidance and lively debate. A particularly enduring question is that of the relative merits of ‘disabled people’ language (which reflects the social model idea that society disables people with impairments) and ‘people with disabilities’ language (which positions the person before disability). Powerful reasoning, consistent with a human rights approach to disability, underpin both and, in truth, contextual factors are likely to influence choices about which of them is most appropriate for purposes of the particular communication concerned.

Debates about terminology and discourse are therefore an established feature of Disability Studies and disability politics. As made clear by various contributors to The UN Convention on the Rights of Persons with Disabilities in Practice edited collection, the advent of the CRPD – particularly Article 1 and preambular para (e) – has prompted courts in a range of jurisdictions to reinterpret the concept of ‘disability’ and refer explicitly to ideas such as the social model and human rights model of disability. None of this, however, in any way diminishes the significance of the Vikash Kumar call for judges to use language which challenges rather than reinforces disabling attitudes.

This call  goes beyond issues of legal interpretation. It focuses more broadly on the language through which judicial rulings are articulated – thus implicitly acknowledging the expressive function of Law and the responsibility it places on law-makers, including judges. The Supreme Court criticises references made in the judgment of the lower tribunal – to the applicant ‘suffering’ from writer’s cramp and the description of that condition as a ‘disease’ – not because of any error in legal reasoning, but because this language suggests that disability is ‘an affliction that causes suffering’, an understanding ‘rooted in the medical model of disability’ (para 68). The Vikash Kumar call to action is an appeal to judges to reflect consciously on what disability-related language they choose to use, and to ensure that disabled people regard it as fostering inclusion and empowerment. This requires an attentiveness to the views of disabled people and their organisations which, in turn, suggests a need for disabled people’s organisations to be invited to contribute to judicial training and guidance.

The fact that the Vikash Kumar call to action will entail listening to and learning from disabled people is noteworthy. So too is the fact that the entire judgement reflects a commitment to a reflexive, outward-looking approach and recognition of the potential value of attentiveness to sources external to domestic legal systems. It is replete with references to the CRPD, the Committee on the Rights of Persons with Disabilities, caselaw and legislation in other jurisdictions, and the work of commentators. This evinces the type of openness to ideas and perspectives that is so crucial to processes of reflection about future discourse. It also reminds us all that this is an issue that reaches across borders and that the Vikash Kumar call to action is one which is relevant to justice systems all over the world.