As mentioned in the discussion on models of disability, there has been a shift from an emphasis on charity and care, towards civil rights and social and economic inclusion for disabled people. In the USA the large numbers of disabled Vietnam veterans joined together as a cohesive group with other disability groups, organisations and agencies to fuel civil rights campaigns, resulting in the 1990 Americans with Disabilities Act. In the UK disability rights campaigns have been mounted since the 1970s. A bill to ensure civil rights for disabled people was put forward by Roger Berry MP in 1992. This was rejected by the then Conservative government, who brought in their own measure, the Disability Discrimination Act (DDA) (1995). The DDA went some way towards recognising disability as a social issue, but has been criticised for stopping short of guaranteeing enforceable civil rights. The incoming Labour Government of 1997 described the Act as 'fundamentally flawed' and pledged itself to make improvements. Education did not come under the DDA until the passing of the Special Education Needs and Disability Rights Act in May 2001.
In April 2000 the Disability Rights Commission (DRC) was established. The DRC has a role in the enforcement of the DDA, which up to then relied upon aggrieved individuals bringing cases before tribunals. The DRC also picked up the work of the former Disability Rights Task Force (DRTF) in making recommendations for further anti-discrimination legislation. In their report 'From Exclusion to Inclusion' published in December 1999 the DRTF states:
"Disabled people must have the right to pursue their education without unfair discrimination. What value do we place on education when a disabled person has rights against discrimination under the DDA when going to the cinema, but not whilst at school or college? We have recommended a range of new legal rights against unfair discrimination and duties on education institutions to make reasonable adjustments to allow access for disabled people."
(DRTF, 1999, p.42)
The Government's Special Educational Needs and Disability Rights in Education consultation published in March 2000 demonstrated their commitment to follow these recommendations:
"The provision of many educational services to the public is currently exempted from Part III of the Disability Discrimination Act (DDA) 1995 (access to goods, facilities, services and premises). The Government believes that this exemption is unjust and indefensible. The Government therefore proposes that new duties should be applied to education in schools (including nursery schools), further education, higher education, adult education, youth service provision and, in Scotland, community education. The new legislation is intended to ensure that people in education receive protection from unfair discrimination as disabled people in other areas of society now enjoy."
(DfEE, 2000, p.3)
The resulting Special Education Needs and Disability Act, passed in May 2001, states that:
The responsible body for an educational institution must take such steps as it is reasonable for it to have to take to ensure that -
- in relation to the arrangements it makes for determining admissions to the institution, disabled persons are not placed at a substantial disadvantage in comparison with persons who are not disabled, and
- in relation to student services provided for, or offered to, students by it, disabled students are not placed at a substantial disadvantage in comparison with students who are not disabled.
(HMSO, 2001, p.27)
The provisions of the Act are being phased in:
The Act consists of a series of amendments to the 1995 Disability Discrimination Act and applies to all Further and Higher Educational Institutions in England, Scotland and Wales. This being the case the rest of this section is given over to exploring the implications of the DDA for educational institutions.
The DDA defines a person's disability as "a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities" (Box 14).
Impairment - The definition covers physical and mental impairments. These include:
Substantial - For an effect to be substantial, it must be more than minor.
Long Term - these are effects that:
Long-term effects include those which are likely to recur. For example, an effect will be considered to be long-term if it is likely both to recur, and to do so at least once beyond the 12-month period following the first occurrence.
Day-to-day activities - normal activities carried out by most people on a regular basis, and must involve one of the following broad categories:
mobility - moving from place to place; manual dexterity - for example, use of the hands; physical co-ordination; continence; the ability to lift, carry or move ordinary objects; speech, hearing or eyesight; memory, or ability to concentrate, learn or understand; being able to recognise physical danger.
Source: HMSO (1995)
Question: Casting your mind back to the section on Models of Disability, to what extent do the definitions in Box 14 encompass a social model of disability?
As you may recall, advocates of the social model describe 'disability' as a social condition, the result of a society which does not cater for the diverse needs of people with impairments and which creates barriers to their participation. In contrast, the DDA defines 'disability' as substantial impairment, and does not include the broader area of barriers and discrimination within the definition. However, the content of the Act itself does recognise the disabling effect of environments and organisational arrangements that exclude disabled people.
The DDA definition can be criticised for not taking into account other peoples' reactions to a person. In contrast, the American's Disabilities Act includes being regarded as having an impairment within its definition of disability. In this country someone who has HIV infection, but is not showing symptoms, would not be protected from discrimination under the Act. Terms such as 'substantial' and 'normal day-to-day activities' do not give precise indications of who is disabled and who is not.
The Disability Rights Task Force stated that "the current definition of disability in the DDA has significant flaws" (DRTF, 1999, p.24) and hopes that it will be reviewed by the Disability Rights Commission. The DRTF recommends a number of interim amendments including the following measures:
It is important to note that a person is only covered by the employment conditions of the Disability Discrimination Act, if their employer knows that they are disabled. This is would also be the case within educational institutions. So if a student does not declare their 'disability', and the institution could not reasonably be expected to know that the student is disabled, a discrimination case would not stand up before a tribunal.
To avoid discrimination under the terms of the DDA, you must not treat a disabled person less favourably than someone else, because of the person's disability, unless there is good reason to do so. The Special Education Needs and Disability Act (SENDA) states that less favourable treatment of a person could be justified if it was necessary to maintain academic standards. This leads to consideration of circumstances under which it is justifiable to exclude a disabled person from an activity.
Question: Can you think of any situations under which it might be reasonable to exclude a disabled person from an activity?
If the nature of someone's impairment means that, even with the use of aids and adaptations they would not be able to carry out essential functions, it would be regarded as permissible to exclude them from an activity. If someone could be shown to be likely to jeopardise their own or the safety of others, they could be excluded. However, you must be careful not to exclude anyone on the basis of assumptions; physically disabled people have climbed Everest. Another situation might be where technically it is possible to overcome the effects of someone's functional limitations, but in practice in would be very difficult and expensive. You would need to show that, despite trying to get the necessary resources, it has not been possible to accommodate that person's needs.
The SENDA is being backed up by a Code of Practice. At the time of writing this is in draft form and runs to 67 pages. It can be accessed at the Disability Rights Commission's web-site. Although it is a lengthy document it contains many useful examples of how the Act could relate to higher education. Not many of the examples are specific to field trips (see below for two which are). However, the Code relates to many aspects of planning and running courses, as well as the general provision of services and support within institutions, and it is worth reading at length.
As part of an earth science course, students are required to undertake a field trip involving an overnight stay in a mountain hut. A student who needs regular dialysis cannot go on the residential field trip without missing her dialysis. A reasonable adjustment might be for the tutor to arrange for her to take part during the days but for someone to return with her to a nearby village at night so that she can have dialysis.
A student with a heart condition goes on a field trip as a compulsory part of her geography course. The student has not told the college about her condition although she had been given the opportunity to do so in private on several occasions including when the field trip was announced. Part of the trip involves walking around the town counting shops and residential housing. During the day, it becomes apparent that she cannot complete the assignment although some last minute adjustments are made. Because it could not have known about the disability in advance, the college is unlikely to have been acting unlawfully.
The draft COP has been put out for discussion and feedback and will be followed up by a more permanent document.
Commentaries on SENDA can be found at http://www.skill.org.uk and at http://www.natdisteam.ac.uk/.
Page updated 14 December 2001
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