Disability & extenuating circumstances

From the latest OIA annual report, it seems that the Higher Education Advisory Panel (HEAP) was asked to comment on some particularly thorny issues last year, including one relating to disability discrimination which sounded very similar to cases that have crossed my desk in the same period.
This is the question of whether Examination Boards should be routinely told that a student has a disability even though reasonable adjustments for that disability may already have been made. From my experience, many institutions take the view that once adjustments have been made for a disability, it cannot form the basis of a claim for extenuating circumstances. Therefore, Examination Boards are not routinely told which students have disabilities.
Is such a position defensible in law?
The institution’s duty is to make such adjustments as are reasonable where the way that institution does things puts a student with a disability at a substantial disadvantage compared to those who do not have that disability. The duty is both an anticipatory and a continuing one. It is also expressed as a duty on the institution to make the necessary adjustments, rather than as a right on the part of the student with disabilities to seek adjustments. Finally, disclosure of a disability to any part of the institution will, within reason, be treated as disclosure to the institution as a whole, so that the continuing duty to make adjustments will fall to be discharged by every part of the institution that interacts with the student, irrespective of whether or not the individual members of staff involved know about the disability.  
In most cases, the necessary adjustments can be identified and implemented ahead of and during any assessments, such that there is no need for any further consideration to be given to them by the Examination Board. But say a medical student who suffers from anxiety disorder finds herself unable to perform properly in an OSCE because of equipment failure. She submits an extenuating-circumstance claim based on the failure of the equipment, which she contends is a procedural irregularity in the conduct of an assessment, but does not mention her disability or suggest that the effects of her disability in anyway compromised her performance. The claim for extenuation is rejected because the Examination Board concludes that the ability to use the equipment was not what was being tested and that equipment failure fell within the range of unexpected difficulties that medical students were expected to be able to deal with in practice. If the Examination Board had known of the disability, might they have concluded that this student was likely to have been affected more than others by equipment failure and would that have altered their decision on the appeal? At this point, can the student argue that there was a residual substantial disadvantage (i.e. that the failure of the equipment affected her more than other students because of her anxiety disorder), not addressed by any previously agreed reasonable adjustments?  Remember: the law may in effect impute knowledge of the disability to the Examination Board in any event. In this case, it is at least arguable that OSCEs also test the ability to deal with stress in a clinical environment. Consequently, manifesting an ability to deal with the unpredictable is a competence standard and the duty to make adjustments does not apply in the circumstances.
On the other hand, the problem with ensuring that an Examination Board is expressly told of every disability affecting students is that it may suggest that the Board is obliged to take it into account, even if those students have not put their condition forward for consideration and have instead advanced some wholly different and unconnected explanation affecting their performance. This seems to be going much further than the duties summarised above require, and risks suggestions that the institution is unable to see beyond a student’s disability. In extreme cases, students with disabilities may find such an approach patronising and intrusive, and itself a cause for complaint.
The solution is probably to ensure that students are very clear on when information about their disabilities will automatically be shared within the University and when the onus is on them to advise that they require any further specific consideration of it. I wonder if members of the HEAP would come to the same conclusion.

Smita Jamdar
Partner and Head of Education
For and on behalf of SGH Martineau LLP
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