Guidance on International Students with Personal Care Support Needs

A Scottish Disability Team Guidance Note, published August 2006.

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Legal Note

These Guidance Notes are intended to provide general advice only, and are not an authoritative treatment of the law. Professional advice should be sought before acting on any of the material contained in these Guidance Notes as it may not be appropriate to your circumstances. These Guidance Notes are intended to relate primarily to the law as it applies to Scotland, however colleagues from other countries and elsewhere in the UK may find it useful to refer to the information contained herein.

There are legislative changes currently proposed to the DDA and these Guidance Notes can only be considered as an accurate reflection of the law as at date of print (31 July 2006).

Acknowledgments

The Scottish Disability Team would like to thank Lesley Paterson, Partner, Thorntons Solicitors, who devised and wrote this document.

A note on Language: In this document we use the language of "impairment" and "disability" as defined by the social model of disability. It is also the preferred language of the disabled peoples' movement. Whilst people have impairments, e.g. deafness, blindness, muscular dystrophy etc, disability is the outcome of the interaction between a person with an impairment and the environmental and attitudinal barriers s/he may face. The Disability Discrimination Act 2005 (DDA), however, uses the term "disability" to mean what the social model defines as "impairment", so it occurs in this way in this Guide when direct quotations from either the DDA or its associated Codes of Practice are used.

About these Guidance Notes

These Guidance Notes relate only to the specific obligations placed upon Universities and Colleges under the Disability Discrimination Act 1995 as amended (DDA) in relation to the provision of personal care support to international students. They do not cover any other obligations which a University or College may have under the DDA or other statutory enactments or the common law.

These Guidance Notes are aimed at providing assistance for Disability Advisers and Co-ordinators, International Student Advisers, Heads of Student Services and University/College managers who have strategic and/or budgetary responsibilities. The Guidance Notes assume that the reader has a prior knowledge of the DDA. More detailed information is available from the Disability Rights Commission (DRC) Web site, the current Code of Practice for providers of Post-16 Education and Related Services, the Consultation draft of the revised Code of Practice, as well as previous Guidance Notes issued by the Scottish Disability Team.

NB Copies of the draft Code of Practice are available from the Disability Rights Commission Helpline.

The rest of this Guidance Note is structured as follows.

   

1. Introduction

The purpose of these Guidance Notes is to provide information on the responsibilities that a University or College may have to provide personal care support to an international disabled student. In addition, guidance is contained on whether an international disabled student will be entitled to look to central or local government for assistance for such personal care. These Guidance Notes cover the following issues:-

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2. General requirements of the Disability Discrimination Act

2.1 - Under Part 4 of the DDA, a University or College must not discriminate against disabled students/prospective students. Discrimination will arise where a University or College treats disabled students less favourably than non-disabled students, or fails to make reasonable adjustments for a disabled student, where they are placed at a substantial disadvantage in comparison with someone who is not disabled.

(It should be noted that the way in which discrimination occurs under Part 4 of the DDA will be changed by the Disability Discrimination Act 1995 (Amendment) (Further and Higher Education) Regulations 2006, which implement the European Employment Framework Directive (2000/78/EC). The Regulations introduce the concept of "direct" and "indirect" discrimination, as well as an amended duty to make reasonable adjustments. There are also new provisions relating to discrimination which arises through harassment).

2.2 - Paragraph 2.6 of the current Code of Practice states that:

"The Act applies to any disabled people (including those overseas) who are enquiring about or applying to a course, and any disabled students (including those overseas) attending, undertaking or enrolling in a course."

2.3 - It is clear that the duty not to treat a disabled student less favourably and the duty to make reasonable adjustments apply to both domestic and international students. As these Guidance Notes deal primarily with personal care issues which are most likely to fall under the duty to make reasonable adjustments, it is this element of the DDA that the remainder of these Guidance Notes concentrate on.

2.4 - The DDA contains three elements to the duty of "reasonable adjustment":

2.5 - As the DDA does not define what will constitute a "reasonable adjustment", it is left to the Code of Practice to outline the factors which should be considered in determining what type of adjustment would be "reasonable". These factors include:

2.6 - The provisions of the Disability Discrimination Act 1995 (Amendment) (Further and Higher Education) Regulations 2006, relating to the provision of Post-16 Education, shall come into effect in September 2006. A new revised Code of Practice on the provision of Post-16 Education will also come into effect at this time.

2.7 - Currently, a University or College can "justify" failing to make a reasonable adjustment, if it can show that the reason for failing to make a reasonable adjustment is substantial (that is to say, not just minor or trivial); and is also material to the individual circumstances of the particular case. However, one of the significant changes that will come from the new provisions is the removal of the "justification defence" currently available to a University or College for failure to make a reasonable adjustment.

Example: A student with speech impairment is enrolled on a travel and tourism course. As part of the assessed course work, each student on the course is individually assessed on customer services. The University/College would be expected to make a reasonable adjustment (if necessary) when assessing a student with speech impairment, to take account of any difficulty that the student may have, for example in demonstrating verbal fluency as part of his conversation skills. It will not be a justifiable defence for the University/College to refuse to make a reasonable adjustment on the grounds that it is not prepared to change its assessment standards for that student.

The only exception to this may be if the assessment criteria has been set by a third party e.g. an awarding body and the awarding body will not consider amending the criteria.

Under the new rules, there will no longer be a justification defence for treating a student less favourably than someone else, or failing to make a reasonable adjustment in such circumstances.

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3. "Reasonable Adjustments" - Considerations for International Students

3.1 - The current Code of Practice contains various examples of what may constitute a reasonable adjustment under the DDA. However, determining what a reasonable adjustment is will depend on the facts and circumstances of every case. Determining what may constitute a reasonable adjustment for an international disabled student is potentially more complex than determining what constitutes a reasonable adjustment for a domestic student with a similar impairment.

3.2 - As well as duties under the DDA, a University or College owes the duty of care to all of its students, staff and those that it comes into contact with. Arguably, a University or College will have to do more to meet its duty of care in relation to an international student who perhaps faces language, cultural or other difficulties as a result of studying in another country compared to a domestic student.

3.3 - Similarly, what may be considered a reasonable adjustment under the DDA in respect of an international disabled student may differ to what would be considered a reasonable adjustment in respect of a domestic student with a similar impairment.

3.4 - As outlined above, determining reasonableness depends on the facts and circumstances of every individual situation. However, given that an international disabled student may face additional difficulties as a result of studying away from home, it is possible that a "higher" level of adjustment would be considered "reasonable" under the DDA compared to the level of adjustment that would be required in respect of a domestic student with a similar impairment. It is worth noting that international students will usually pay higher tuition fees to study in Scotland than domestic students and this may be considered a relevant factor by courts in determining what would constitute a reasonable adjustment for a University or College to make in respect of an international student.

3.5 - The provision of personal care is likely to fall under the provisions of the DDA relating to reasonable adjustments involving auxiliary aids and services.

3.6 - Specifically in relation to personal care, international disabled students are likely to be in a very different position to domestic students. In particular, recourse to funds for personal care is likely to be far more limited for international students than for domestic students. This is likely to be an important factor in determining reasonable adjustments for an international disabled student. Access to funds for personal care is dealt with in detail in the following sections of these Guidance Notes.

Example: A visually impaired student from China comes to a Scottish University to study a business management course. As a condition of her international visa, she has 'no recourse to public funds' stamped on her passport. As a reasonable adjustment for this student, the University may need to be prepared to fund the cost of certain equipment, such as tape recorders or specialist PCs. The University may also need to fund personal support for the student - a note-taker may be necessary at seminars and lectures if the student is unable to see sufficiently well to take her own notes, or a personal assistant may be needed to provide her with initial or continual support (for example, adjusting to any language problems) .

3.7 - As with all forms of reasonable adjustment, as well as recourse that a disabled student may have to funding, there are a number of other factors which require to be considered. The financial resources that a University or College has available to dedicate to the personal care of students will be relevant, as will the extent to which the disabled student has access to personal care from any third party sources and any health and safety requirements.

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4. Is an International Student entitled to receive any benefits from UK central or local government to provide personal care?

A. Welfare Benefits - Non EU Students

4.1 - Where a person enters the UK as an international student, and that person is not a national of a European Economic Area country or Switzerland then it will be made a condition of the student's stay that they must be able to accommodate and support themselves (and any dependants) without recourse to public funds. A condition of "no recourse to public funds" will be stamped in the student's passport. It is therefore unlikely that such international students will be successful in claiming any welfare benefits.

NB The European Economic Area (EEA) consists of the European Union (EU) countries (Austria, Belgium, Czech Republic, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and the United Kingdom), plus Iceland, Liechtenstein and Norway. Switzerland is not a member of the EEA and Swiss Nationals are not citizens of the EU. However since 1 June 2002, under the terms of a Bilateral Agreement, Swiss Nationals have had certain rights, which are similar to those of national of EEA countries.

4.2 - There may be limited provision for claiming welfare benefits if the student's funds from abroad are temporarily disrupted. Under such circumstances, the student may be able to claim short-term benefits in an emergency (urgent case payments of income support) for up to 6 weeks. A student can also claim housing benefit and council tax benefit under the same qualifying conditions, and it may also be possible to claim working and child tax credits during the period of disruption. This applies in emergency situations only and is an exception to the normal rules.

NB International Students will usually be exempt from Council Tax in the same way as home Students, if they live in an "exempt dwelling". However, where the student either lives in the dwelling with a spouse or adult dependent who is a British Citizen, EEA National or has "certain status", or otherwise lives with other adults who are not students, there will be a Council Tax bill for that dwelling. During a period of temporary disruption of funds from abroad, an International Student is entitled to claim Council Tax benefit (if liable for Council Tax payments) for a maximum of 42 days.

4.3 - An international student may come from a country that has a reciprocal agreement with the UK, which allows nationals from those countries to receive certain benefits. The main example of this for welfare benefits is Child Benefit. An international student who is subject to immigration control will not be entitled to Child Benefit, with the exception of those students from countries covered by reciprocal agreements (including Australia, Canada, Guernsey, Jersey, Isle of Man, Mauritius, New Zealand, Switzerland and those countries (other than EU countries) comprising the former Yugoslavia). Access to benefits under such reciprocal agreements requires to be investigated on a case by case basis. More information on reciprocal agreements with the UK, which may affect the benefits entitlement of international students, may be obtained from UKCOSA - the UK Council for International Education.

B. Welfare Benefits - EU Students

4.4 - On 30 April 2006, the new Residence Directive (Directive 2004/38) came into force, repealing all existing EU residence directives. The Residence Directive gives EU nationals a right of entry to the UK and allows a right of residence for the first three months of arriving in the UK. This means that EU nationals are not subject to UK immigration control for this period. Please note that the Residence Directive is applicable to all EU nationals, and not just EU students.

NB The new Residence Directive is significant in that one of the previous residence directives it has repealed is Directive 93/96, which specifically related to right to residence for students.

4.5 - In addition, if the EU national is a student and has been accepted on a course of study by a University or College based in the UK, the student will be entitled to enter the UK freely and have the right of residence for the duration of that course.

4.6 - However, in order to study in a Member State for longer than the initial three-month period, the right of residence will be subject to certain conditions. Firstly, the student must be enrolled at an approved educational establishment. Secondly, the student must be covered by adequate health insurance. Finally, the student must have sufficient means at the start of their studies to prevent them from becoming "an unreasonable burden on the social security system of the host Member State" (welfare benefits system, in the case of the UK) .

4.7 - Provided that an EU student can satisfy the above conditions, the authorities of the host Member State (in this instance the UK) will confirm the student's right to residence by issuing an EU residence permit.

4.8 - An EU student who has obtained a right to residence will thereafter have the right to equality of treatment in respect of any matter covered by relevant EU Treaties, including welfare benefits. However, full time students are not normally eligible for certain welfare benefits, regardless of their nationality. An EU student will not be entitled to claim any benefits that cannot be claimed by a UK student.

4.9 - As mentioned above, it is also a condition of obtaining the right of residency that an EU student does not become an unreasonable burden on the welfare state, which potentially excludes the claiming of benefits in any event. This is designed to safeguard the welfare system from students and others who are economically inactive. Furthermore, some benefits can only be claimed if a certain proportion of National Insurance contributions have been made.

Disability Living Allowance

4.10 - Disability Living Allowance (DLA) is part of the system of welfare benefits given by the UK Government to help certain people with low income or to meet certain needs. DLA is paid to people who are disabled and who, as a result, need help with either personal care or mobility or both. Entitlement is based on how much help is needed with care/mobility.

4.11 - All EU nationals can apply for DLA if they have been living in the UK for at least 3 months and have had the relevant care/mobility needs for at least 3 months.

4.12 - Given that UK students are entitled to claim for DLA, an EU student with right of residence in the UK will also have an entitlement to claim DLA in accordance with their right to equal treatment.

Summary: Non EU international students will not be entitled to claim DLA, or indeed any other state benefits (except in certain emergency circumstances). However, an EU student with a right of residence in the UK may be entitled to apply for DLA. The EU student must have been resident in the UK for the qualifying period, and have the relevant care/mobility needs.

C. Disabled Students' Allowance

4.13 - Disabled Students' Allowance (DSA) is an allowance available for disabled students. The allowance is intended to subsidise disability related costs while studying, and is available in Scotland from the Student Awards Agency for Scotland (SAAS) .

4.14 - The three components that make up the DSA cover: - a basic allowance; an allowance for large items of equipment and; an allowance for non-medical personal help.

4.15 - An international student must be eligible to apply to SAAS for support before a DSA application will be considered. Should the SAAS eligibility criteria be met, the student may also be able to apply for other student support, such as assistance with maintenance costs. The student must meet the residence requirements as set out in the Student Allowances (Scotland) Regulations 1999 (as amended).

4.16 - To meet the residence conditions, the student must:

4.17 - An international student is unlikely be treated as being ordinarily resident in Scotland if his/her main purpose in coming to Scotland has been to receive full-time education and that person would have otherwise been living elsewhere.

4.18 - "Settled status" is defined within the Immigration Act 1971 as being ordinary residence in the UK without being subject, under the immigration laws, to any restriction on the period for which the person may stay. For EU nationals, however, the decision of the European Court of Justice in the English case of Bidar should be noted. In this case, the requirement of "settled status" for EU nationals was found to be unlawful, having been held as discriminatory on the grounds of nationality.

D. The Bidar Case

4.19 - The case of R (Bidar) v Ealing London Borough Council on 15 March 2005 concerned a French national who at the age of 15 entered into the UK with his mother in August 1998 to live with his grandmother. In September 2001 he attended University College London. While he received assistance with his tuition fees, his application for financial assistance to cover his maintenance costs (in the form of a student loan) was refused on the grounds that he did not satisfy the conditions laid down in the Student Support Regulations 2001 (the equivalent English regulations) .

4.20 - These Regulations required students to have been resident in the UK for three years prior to starting their course (which Bidar had satisfied). The Regulations further specified that the student must also have "settled status" in the UK before he would be entitled to assistance with maintenance. Although Bidar had spent three years in the UK, since he was in full time education he was not considered to be "settled" -in practice, it was impossible for a full time student from another Member State to attain "settled status" under UK immigration law.

4.21 - The European Court of Justice decided that because Bidar was ordinarily resident in the UK he was entitled to equal treatment under Article 12 of the EC Treaty, which prohibits discrimination on the grounds of nationality. Bidar was entitled to apply for and receive support to cover his maintenance costs.

4.22 - Prior to the Bidar case, EU students had been entitled to apply for and receive tuition fees like any other UK students, but this did not apply to maintenance or living support. The significance of the decision in Bidar was that EU students could now be entitled to also receive maintenance and living support, just like any other UK student, so long as they satisfy certain criteria. However, notwithstanding this, the court decided that it was still permissible for the UK government to require that nationals of Member States must live for a period of three or more years in the UK before being entitled to such grants or loans and that such a condition was not discriminatory.

4.23 - The Bidar case has confirmed that, as with UK nationals, EU students do not have to meet the condition of having "settled status" in the UK to be successful in applying for maintenance support, such as DSA. However, a student must still be ordinarily resident in Scotland on the day that their course begins, and must have been ordinarily resident in the UK for the previous three years to gain entitlement to DSA. It is therefore unlikely that the majority of EU students will meet the necessary residence conditions for eligibility to apply for DSA.

Example: A French national with personal care needs has successfully applied to study a European Law course with a Scottish University. His course begins on 1st September 2006, however he has been resident in Scotland for the previous three and a half years (having moved to Scotland with his family in January 2003). As an EU national he is not required to prove that he has "settled status" in the UK, therefore he will meet the residence requirements of the Student Allowances (Scotland) Regulations 1999 (as amended) and is entitled to apply to the SAAS for maintenance support, including Disabled Students' Allowance.

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5. Does a Social Work Department have legal responsibility to provide personal care support for an international student who is disabled?

5.1 - The parameters of social work practice are largely defined in the duties and powers conferred upon local authorities. The Social Work (Scotland) Act 1968 places an over-arching duty on local authorities to "promote social welfare". This duty underpins social work services in Scotland, and places responsibilities on local authorities for, amongst other things, people with physical impairments, mental health issues and learning difficulties.

5.2 - Local authorities have a duty to provide social work services for people who are "ordinarily resident" in their areas, in accordance with Section 86(1) of the Social Work (Scotland) Act 1968. There is no definition of "ordinarily resident" given in this 1968 Act. However, courts have defined "ordinary residence" as habitual and normal residence in one place, which that person has adopted voluntarily and for a settled purpose". When a person has arrived in Scotland totally or mainly for the purpose of receiving full time education, this is unlikely to be considered as being ordinarily resident.

5.3 - Local authorities also have a duty to undertake a care assessment where it appears that any person for whom they may provide a range of community care services may be in need of services. In emergency cases, local authorities "of the moment", namely the local authority where the person is physically located, require to undertake a care needs assessment and arrange for provision of services for a person living in their area.

5.4 - The obligations of a local authority mentioned above usually involve situations where an individual is still ordinarily resident in the UK, but is ordinarily resident in a different local authority to the one in which emergency treatment is required.

5.5 - It should be noted, however, that any international student who is on a course of study (of any duration) with a University or College in Scotland will automatically qualify for free medical treatment with the NHS from the beginning of his or her stay, on the same basis as anyone who is ordinarily resident in the UK.

Summary: If an international student cannot prove that he/she is ordinarily resident in the UK, it is unlikely that a local authority will owe any duty to provide social work services, with the possible exception of emergency social work services. Local authorities may, however, choose to provide social work services in emergency situations to international students. There is no certainty as to the consistency in approach by local authorities in this regard. .

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6. Provision by Universities and Colleges of personal care funding for international disabled students

6.1 - Under the DDA, a University or College has a duty to make reasonable adjustments where students/prospective students are placed at substantial disadvantage compared to a non disabled student. As outlined above, this applies to both domestic students and international students. Based on the particular difficulties that an international disabled student may face, a University or College may have to do more to meet its reasonable adjustment duty under the DDA in respect of an international student. Whether the University or College will actually require to fund personal care for an international student, and to what extent, will depend on the facts and circumstances of each case. For most international students, no funding will be available for personal care from the sources that would generally be available to a domestic student in a similar situation.

6.2 - If the lack of funding for personal care is a barrier to an international student being able to study at a University or College and is placing the student at a substantial disadvantage, it may be reasonable for a University or College to fund such care. It may even be reasonable for a University or College to fund such care at weekends and evenings. Although this will be outwith the teaching time of a University or College, the funding of personal care may still be relevant to study and the provision of student services by a University or College. Of course, further considerations regarding the availability of University or College funds and any health and safety issues etc will be relevant in determining what is reasonable.

Example: A Dutch student, enrolled at a Scottish College, has brittle bone disease and requires the use of a wheelchair. The student will require the help of a personal assistant to help her with her personal care needs. Although she has some money to pay towards employing an assistant, she cannot afford to pay this entirely by herself. She has also been unsuccessful so far in obtaining any other funding, such as welfare benefits. The College come to an arrangement with the student, whereby the College will provide her with the additional funding necessary to employ a personal assistant, covering the duration of her time spent at the College.

6.3 - University or College funding for personal care in respect of international disabled students is unlikely to breach the terms of an international student's visa. Any student who has "no recourse to public funds" included in their passport stamp or who has as a condition of their EU residence permit that they will not be "an unreasonable burden on the welfare state", would not be in breach of their immigration conditions or residence permits, so long as they are not receiving "public funds". "Public funds" is a defined term within the Immigration Rules, and the benefits and services listed do not include education services or any education funding.

6.4 - The only proviso to the above is that some of the funding identified by a University or College for international students with disabilities may have originally come from a source of "public funds". Universities and Colleges should take this into consideration when locating suitable funding streams for international students with disabilities. However, in a guidance note issued by UKCOSA, entitled "Tuition fees: will I pay the home or overseas rate?", it states that:

"...someone who has 'no recourse to public funds' included in their passport stamp is not in breach of their immigration condition if they have access to education in the UK. 'Public funds' are defined in the Immigration Rules, and the benefits and services listed do not include education or any education funding."

6.5 - In the event that a University or College decides that in order to meet its duty to make reasonable adjustments under the DDA, it will provide funding to an international student in respect of personal care, it must consider carefully how this assistance will be structured. There are essentially two main options for a University or College in such a situation to consider:-

6.6 - Where the University or College employs personnel to deal with personal care issues, a contract of employment should be issued to such personnel in accordance with the relevant HR procedures. The University or College will need to consider carefully how such personnel are to be supervised and managed (particularly if the University or College is not in the habit of employing personal care workers). Insurance provisions should also be checked in order to ascertain whether the employment of personal care workers will be covered under its terms.

6.7 - Where the University or College is providing funding directly to the student to allow him/her to employ their own personal care workers, the University or College must make it absolutely clear that the personal care workers will not be employed by, line-managed, supervised or disclosure checked by the University or College. It will be for the student to satisfy themselves that the personal care worker is suitable. A failure to make this clear could lead to the University or College having liability in the event the personal care worker was injured during their duties or in the event the personal care worker was negligent in their duties towards the student.

6.8 - That said, where the student is employing his/her own personal care worker (whether with or without University or College funding) or is bringing voluntary personal carers to the University or College, the University or College should still satisfy itself that the arrangements being put in place are adequate. This may involve a risk assessment being undertaken and an investigation being made into the care which is being put in place. Given that the University or College owes a duty of care to its students to prevent reasonably foreseeable harm from occurring, it must satisfy itself that personal care arrangements for students are adequate. This is likely to be a difficult balancing act for a University or College. If, however, the University or College believes that a disabled student may be at risk of harm as a result of personal care arrangements being unsuitable, it may have to make the decision not to allow such arrangements to proceed.

Example: A College agrees to allow one of its students to bring a personal carer with him, obtained through a voluntary organisation, in order to assist him on campus with additional support needs. The student has agreed to use a voluntary organisation that the College has had previous dealings with. The College also put suitable monitoring arrangements in place, in order to regularly review the personal care arrangements of the student. The College has also insisted that the voluntary organisation will only provide personal carers who have completed a Disclosure Scotland check, before they will be allowed to enter the College premises and provide assistance to the student.

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7. Conclusion

A University or College should always bear in mind that it owes a duty of care to all of its students, staff and those that it comes into contact with. A University or College will potentially require to do more to meet its duty of care to an international student who may face language, cultural and other difficulties as a result of choosing to study in Scotland, compared to a domestic student. Similarly, under the DDA, what may be considered reasonable in respect of a domestic disabled student may differ to what would be considered reasonable in respect of an international student with a similar impairment. The significant sums paid by international students to attend courses at Scottish Universities and Colleges may also be a factor in determining what would be considered a reasonable adjustment.

Determining reasonableness will depend on the facts and circumstances of each individual situation. A key factor in determining what form a reasonable adjustment will take in relation to personal care for an international disabled student is likely to include the student's lack of recourse to other funds for such care.

Where lack of funding for personal care for an international disabled student is the main barrier to the student undertaking a course of study, a University or College is likely to require becoming involved in providing some assistance in relation to personal care in order to meet its duty to make reasonable adjustments under the DDA. However, in the absence of any case law and any specific examples in the DRC Code of Practice which are in point, this is an interpretation of the DDA as opposed to an established legal principal.

Although these Guidance Notes concentrate on international students, there may also be situations where a University or College must become more involved in the personal care arrangements for domestic students. This has not been dealt with in these Guidance Notes.

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