Scottish
Disability
Team
NB This is the fourth page of the online version of the SDT Guidance Note Disability disclosure, confidentiality and evidence in a Higher Education context, published in July 2004.
Evidence - information which documents a fact, or entitles or justifies a decision - gets scant mention in the DDA and the associated Code of Practice which applies to Higher Education. Yet it is clear that the practice of institutions is heavily influenced by the need to seek evidence and to document steps taken.
It is important that staff know when it is appropriate, or even necessary, to seek evidence prior to making any adjustments, and when such a request for evidence may in itself be discriminatory.
In practice, in most instances where evidence is collected, it is collected in the interest of supporting the disabled student and to justify adjustments being made. Evidence that plays this role will often be information about aspects of the student's impairment(s) and abilities which might affect engagement with the central concerns of the course or fulfilment of core requirements. For example, this would include dyslexia assessments which establish that the student has a specific learning difficulty, reports from a doctor that certify impaired stamina, liability to infections, or dietary requirements, or specialist occupational health assessments that identify susceptibility to particular stressors in the study or work environment.
In some cases, it may be appropriate also to hold evidence that the particular support or adjustment put in place will be effective in removing any substantial disadvantage which the student might otherwise face, while allowing the student to meet the same fundamental learning objectives as other students.
The second reason is, in a way, the opposite of the first. The Code makes the point that 'a responsible body should not be looking for reasons or excuses to discriminate against disabled people or students...' but sometimes, unfortunately, the institution will find it necessary to take actions which, in the absence of justification (such as maintaining academic standards or protecting the interests of other students), would be discriminatory. Where such justification is required, it will be prudent to hold appropriate evidence in case of a subsequent claim. An example of such action contemplated in the Code is the exclusion of a student whose illness is likely to make him violent or disruptive.
Much day-to-day generation of evidence is to provide assurance that public money is properly spent. If disabled students are entitled to particular financial help, the institution which dispenses this money or authorises its dispensation must be sure that the student meets the condition under which s/he is allowed to benefit, namely being disabled.
In many cases, such as when a student applies for a Disabled Students' Allowance, the institution will seek evidence from the student on behalf of a grant awarding authority. This may consist of medical certificates and technology assessments.
Cases may arise where the institution is under an obligation to consider the likelihood and seriousness of harm that may occur to a student or to third parties as a result of the student's health condition. This obligation arises not under the DDA but under the law of negligence. Since the student is likely to be in control of most of the information that will be useful in forming a view, the institution will naturally seek information from the student regarding the nature of this risk. This may take the form of communication from medical experts or occupational health advisers.
In extreme circumstances, where existing information suggests the likelihood of serious harm, e.g. that a student is liable to serious injury or capable of serious violence when ill and that his or her illness develops rapidly and unpredictably, then this would strengthen the institution's position for requiring that the student produces expert evidence about the likely effects of study on the well-being of the student before s/he is allowed to commence/continue/ return.
On the other hand, as we do not ask all students for a certificate of fitness to study, it is important to ensure that any requirement to produce such evidence is supported by having a proportionate reason for requiring it. Asking a disabled student to provide this evidence, in the absence of clear reasons which are both material and substantial, is likely to be discriminatory.
Recommendation for practice (11): Ensure that staff are aware of valid reasons for seeking evidence and refrain from requesting evidence when this is inappropriate. In all cases evidence has to be interpreted and a decision made by staff who are in a position to make judgements about the demands of study, the core requirements of the course and the permissible modifications that can be made to study and assessment arrangements. Normally, academic staff responsible for the course will be best placed to make the required decisions about what adjustments are possible and what are not. The institution's Disability Service (or equivalent) will be able to take a view on the student's health history and on the specialist evidence to hand from psychiatric or medical advisers. It will also be alive to the possibilities of IT equipment and other ways, both human and technological, of supporting the student. The student has obviously a central role in any decision to commence/ continue/resume study, and his or her decision in the matter should normally carry weight, provided that s/he is in a fit condition to take it (a matter on which medical evidence may be desirable). Here, as elsewhere, it is desirable that the disabled student, the academic department and the Disability Service collaborate in a three-way partnership to identify possible barriers to study and to remove or mitigate them.
Recommendation for practice (12): Ensure that mechanisms are in place to enable a balanced judgement of a student's requirements to be made. Decisions which call for evidence often require evaluation of a student's requirements and entitlements in the context of wider issues. Such evaluation should be done explicitly and in a collaborative manner between the disabled student, the institution's Disability Service and the relevant academic department, with a Disability Adviser normally assuming a lead role.
Recommendation for practice (13): Ensure that some form of evidence of the discussion is established where a student discloses verbally that s/he has an impairment or disability-related requirements. As outlined further in Section 3, where a student discloses to a member of staff that s/he has an impairment or disability-related requirements, including where the student requests that such disclosure be kept confidential, the member of staff should take a written note of the discussion which took place to ensure that the institution has written evidence which it can call upon should such discussion ever come into question in the future.
Next page - 5: Recommendations for Practice.
Previous page - 3: Confidentiality, privacy and data protection.