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Modernisation of DSAs?

In April this year, David Willetts announced what can only be described as controversial measures to ‘modernise’ the Disabled Students’ Allowances

DSAs are non-means tested, non-repayable grants that assist with the additional costs that a disabled student incurs in relation to their study in higher education. This currently includes the purchase of laptops and specialist equipment, provision of support workers and assistance with additional travel costs.

In making the announcement the government claims that it is expected that as the current DSA scheme has been in place since 1990 without review, and the expenditure on full-time undergraduates has increased from £88m in 2009/10 to £125m in 2011/12, the level of growth is unsustainable and that it is time to rebalance the support between DSAs and the Equality Act 2010 duty placed on higher education institutions (HEIs) to make ‘reasonable adjustments’ for their disabled students. However, by seeking to adopt the Equality Act 2010 definition of disability found in S.6(1) of the Act there is concern that many students, particularly those with specific learning difficulties and dyslexia, will be excluded from a ‘modernised’ system which will target DSAs at those with the greatest needs.

The Minister has stated that the government is looking to HEIs to play their role in supporting students with mild difficulties as part of the anticipatory reasonable adjustments duty, and expect HEIs to introduce changes which will reduce further reliance on DSAs and help mainstream support.

It is anticipated that in order to make the proposed changes for the academic year 2015/16 there will need to be both new guidance and regulations, together with the undertaking of an Equality Impact Assessment (EIA) which pays due regard to the provisions of S.149 of the Equality Act 2010, the public sector equality duty, particularly the matters set out in subsection (3) of the section namely the need to:-

(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

It is acknowledged by David Willetts that there is ongoing consultation – ‘it is a genuine consultation’. On 2 July he also said ‘we will fund non-medical help that would not be a reasonable adjustment for higher education institutions to make’. Contributions will be made to the cost of higher-cost, higher-specification computers in circumstances if they are required purely because of the student’s disability.

The government appears to take the view that as everyone has ready access to what it terms as ‘standard computers’ which are now able to use the more complex assistive technology, continuing to fund ‘standard computers’ would therefore no longer represent value for money. 

Should HEIs be concerned?

In making ‘reasonable adjustments’ in accordance with the Equality Act duties there appears to be a failure to acknowledge the true interpretation and definition found in the Equality Act; in that ‘disability’ is something more than a mild learning difficulty.

A student has a disability if:

(a) the student has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on the student’s ability to carry out normal day-to-day activities.

‘Long term’ has been determined to mean that the condition is likely to last longer than 12 months. Schedule 13 of the Act deals with reasonable adjustments. HEIs have a duty to make reasonable adjustments for disabled students if:

– A provision criteria or practice puts a disabled student at a substantial disadvantage in comparison with non-disabled students;

– Where a physical feature of the building or premises puts disabled persons at a substanial disadvantage; or

– A disabled student would be at a substantial disadvantage in comparison with non-disabled students unless an auxiliary aid is provided.

A provision, criteria or practice is not defined in the Act but should be construed widely to include formal or informal policies, rules, practices, arrangements, criteria, procedures, activities or provisions. One-off decisions and actions are also caught. There is no requirement under the legislation to identify a comparator, rather the disadvantage caused by lack of a reasonable adjustment is measured by comparison with what the position would be if the student in question did not have the disability. A reasonable adjustment may include the provision of an auxiliary aid or service and is anything which provides additional support or assistance to a disabled student, including but not limited to equipment, extra staff assistance, video phones etc. Section 20 (7) of the Equality Act 2010 makes it unlawful to require any payment or make any charge for making a ‘reasonable adjustment’ in any circumstances.

The determination of reasonableness is a process which applies to each individual situation and what constitutes a ‘reasonable adjustment’ will change in the context of each HEI, and each individual situation and circumstance taking into account factors such as: 

✥Would a step overcome the substantial disadvantage?

✥Practicability of the adjustment.

✥The type of education or other benefit, facility or service being provided.

✥Financial and other costs of making the adjustment.

✥The availability of grants, loans and other assistance to disabled students

✥The extent to which aids and services will otherwise be provided to disabled people or students.

✥The resources of the education provider and availability of financial or other assistance.

✥The effect of the disability on the individual.

✥Health and Safety requirements.

✥The interests of other people, including other students. 

In making reasonable adjustments HEIs should be mindful of the fact that the duty only applies to those who fall within the definition of ‘disability’ and thus for those students with mild difficulties, who have historically enjoyed the benefit of DSAs there must be a real possibility that HEIs will not be required to make provision for them,
in the same way pupils at school may have identified ‘special educational needs’ but do not fall within the legal definition of ‘disability’.

It is interesting to note that during recent debates on the Children and Families Act 2014, MPs and peers were given repeated assurances that there was no need to bring HEIs into scope of the new birth-25 SEN framework due to the comprehensive support provided through DSA. Now, two months later significant changes are being proposed to a system that was described as working very successfully.

What is the likely impact of these proposed changes?

If the proposals are implemented in the way set out in the Ministerial statement of 7 April, this will almost certainly lead to an increase in, not just the amount of financial and human resource required of HEIs as they make decisions as to whether additional support and services should be made by way of ‘reasonable adjustments’, but also an increase in the number of complaints and referrals to the Office of the Independent Adjudicator (OIA) as disabled students challenge such decisions. All HEIs should be concerned to see the draft regulations and guidance as soon as they become available.

Tracey Eldridge-Hinmers is a senior associate at leading education law firm Veale Wasbrough Vizards. Tracey can be contacted on 020 7665 0802 or at teldridge-hinmers@vwv.co.uk.