Scottish
Disability
Team
NB This is the second page of the online version of the SDT Guidance Note Disability disclosure, confidentiality and evidence in a Higher Education context, published in July 2004.
Disclosure of information by applicants/students has particular significance under the DDA.
The relevant section of the DDA (s.1) defines a disability as "an impairment, mental or physical, which has a substantial and long-term adverse effect on the person's ability to carry out normal day-to-day activities". The DDA places the student/applicant under no obligation to disclose an impairment. On the other hand, if a student/applicant does disclose to any individual employed or contracted by the institution, it is likely that the institution will be deemed to know about the student/applicant's impairment thus immediately giving the student the protection of the DDA.
With respect to disclosure of information related to impairment, the Code of Practice relating to the education sections of the DDA (produced by the Disability Rights Commission) provides that (4.19) "If a disabled person has told someone within the institution or service about his or her disability, then the responsible body may not be able to claim that it did not know." The only exception to this, supported in the Code, is that disclosure made in the context of a counseling or therapeutic relationship would normally be the subject of a duty of confidentiality due to the nature of such a relationship. Wider issues relating to confidentiality are given further consideration in Section Three.
The key reason for disclosure, from an applicant/student's perspective, is to inform the institution of an impairment and to get reasonable adjustments made. In other words, the applicant/student will want not solely to disclose the fact of an impairment but to explore the practical implications in terms of the kinds of activities that students on a particular course are called upon to do. If barriers exist which prevent a student from having full access to the course for reasons related to an impairment, it falls to the institution to devise and implement reasonable adjustments which will mitigate or remove these barriers as far as possible.
Although there are benefits, as outlined above, which may encourage disclosure, other reasons exist which may incline the student against disclosing. Many disabled students may, for example, have experienced stigma and embarrassment as the result of the responses of those to whom they have disclosed an impairment. Others may fear discrimination or believe that disclosing an impairment will not be of benefit to them.
There may also be the (remote) possibility that reasonable adjustment is impossible. There may, for example, be cases where there is such a mismatch between a disabled person's impairment and the demands of the course of study as to make the course inaccessible to the disabled person (see Section 2.3 for more information).
Where it appears that an institution has failed to make reasonable adjustments for an applicant or student with an impairment under the DDA, there are two main issues to consider from a legal point of view: (a) whether the institution can be said to have known about the person's impairment and (b) whether an anticipatory reasonable adjustment should have been made.
As stated earlier, the Code of Practice provides that (4.19) "If a disabled person has told someone within the institution or service about his or her disability, then the responsible body may not be able to claim that it did not know."
There are some related issues regarding confidentiality, which will be dealt with in Section Three. In general, however, it can be assumed that the institution will be taken to know what at least some (or even one) of its employees know.
If the institution did not know, and could not reasonably be expected to have known, then it cannot be said to discriminate by treating a disabled student less favorably or by failing to make reasonable adjustments. However, the circumstances may be such that the institution ought reasonably to have known and failure to find out about a person's impairment will not be an excuse for the institution.
The Code envisages some circumstances where a student does not directly disclose but the institution 'ought reasonably to have known' that a student is disabled through some other means. It is important that institutions have procedures in place to handle these scenarios. Such a situation might result where:
The institution is also under a duty to encourage the student to disclose an impairment (Code Of Practice, para 4.18). Such encouragement may take many forms. The following may be appropriate:
Separate to the link between disclosure and reasonable adjustments, the institution is also under general anticipatory duties to make its courses, services and facilities accessible. Examples include the provision of Learning Support to assist students with writing skills, making adjustments to the physical environment to improve accessibility to buildings and reviewing the accessibility and inclusivity of courses offered by the institution in terms of course content, delivery and assessment methods.
Recommendation for practice (1): Encouragements to disclose can be embedded in the institution's information systems: Questions can be put on application forms, reminders of the institution's policies and encouragements to disclose can be circulated to students at key times in the academic year. The existence of specialist resources in the institution, such as disability and technology advisers and learning support specialists, can be publicised.
Recommendation for practice (2): Good practices by the institution can minimise the need to disclose. The natural effect of anticipatory reasonable adjustments embedded in the general design of courses might be to make disclosure unnecessary in many cases.
Recommendation for practice (3): Appropriate training and exhortation to staff can make them easier to disclose to, and help them to handle disclosure in a way that is both useful to the student and meets the institution's legal obligations. Staff development can help staff to deal respectfully with disabled students who disclose and may save staff from making elementary mistakes which can involve the institution incurring liability under the DDA, the DPA and the law of confidentiality. It can also help staff to handle disclosures by ensuring that they know what resources are available, what to advise the student and to whom they should pass relevant information about the student's impairment and support needs.
Recommendation for practice (4): The institution should ensure that it is easy to disclose and easy to decide if a person has disclosed. Efforts should be made to ensure that students know that facilities exist in the institution for them to disclose impairments in a way which is responsive to their sensitivities about disclosing. Establishing such a system and promoting it to students so as to encourage disclosure may well count as an effective anticipatory reasonable adjustment.
The idea that disclosure is always a positive thing, allowing reasonable adjustments to be made and rendering accessible that which was otherwise inaccessible, must be qualified by the recognition that not all courses are compatible with all impairments. Where a student seeks to access a course which, because of its content or how it is delivered at a particular institution, really is incompatible with the impairment, disclosure becomes problematic.
A number of points need to be made here. First of all, one should make a distinction: where an applicant discloses an impairment which is incompatible with a course as delivered at a particular institution, and is turned down by the institution as a result, the only lawful reason for turning the applicant down (i.e. treating them less favorably for a reason relating to their disability) is the incompatibility, not the disclosure. The institution will be acting lawfully only if there is a real incompatibility between the student's impairment and the academic, prescribed or other material and substantial demands made by a particular course. The institution would also need to provide evidence that this incompatibility still exists after all possible reasonable adjustments have been considered. The institution should act fairly and reasonably when making any such decision. Furthermore, calling for evidence from the applicant - whether to establish the existence of an impairment, or to establish any potential mismatch between a student's impairment and the core requirements of a course or the tasks associated with it - could be discriminatory where it is carried out insensitively, or where no genuine issues of accessibility are involved. Matters relating to the gathering and consideration of evidence to make these judgements will be explored further in Section Four.
In summary, if an institution is considering refusing an application on the basis of the applicant's impairment, advice should be sought from various sources within the institution and as many options as possible explored to enable the student to participate in the course before a final decision is reached. The institution's deliberations and investigations before reaching a decision should also be evidenced in writing.
Recommendation for practice (5): Assurances relating to the removal of barriers should be realistic. It is not in the interests of the institution to give the impression that adjustments can always be made. It might find itself having to compensate a disabled person who, in reliance upon unwise and over-optimistic assurances about possible adjustments, has perhaps given up a job or incurred other expense to enrol for a course which is in fact wholly inaccessible to him. Assurances regarding removal of barriers must be realistic and provided to a disabled person at the earliest opportunity.
Recommendation for practice (6): Course descriptions should provide students with fair, accurate and appropriate information on which to make informed choices. Course descriptions should fairly and accurately reflect the demands made by a course. This will often help clarify the issues raised by a particular applicant's impairment. Course descriptions are, in this sense, a valuable aid to disabled applicants in deciding what to disclose. They should also be cast in a mode which encourages applicants to discuss with institution staff the extent to which a given course is accessible or can be made accessible to them.
Recommendation for practice (7): Disclosure itself should only be regarded as preliminary and should lead naturally to discussion of study implications. Disclosure that one falls into an impairment category, or that one carries a medical diagnosis, contributes little if at all to the task of identifying what are the barriers to study in a particular case. One person who is blind may need considerable adjustment to study materials and arrangements, while another may need almost no adjustment to be made; that depends on the nature of the subject and the course, as well as on the precise extent or degree of the impairment - matters which require to be discussed with the disabled person.
Next page - 3: Confidentiality, privacy and data protection.