Changes to Disabled Students’ Allowances – what will they mean for higher education?

I’ve been thinking about the various ways that the changes to the Disabled Students’ Allowances recently announced by David Willetts will impact on how HEIs approach their obligations, particularly the duty to make reasonable adjustments, under the Equality Act.  Clearly, once the changes take effect there will be less support via the DSA and there are obvious risks to participation levels among students with disabilities, but it is also likely that HEIs will be asked to fund a greater amount and diversity of adjustments once this support stops.  Is the sector ready for the additional focus on disability issues that may be required from 2015 onwards?

There are two particularly significant aspects to the proposed changes from my point of view.

Firstly, the comparatively short ministerial statement makes three specific references to the need for HEIs to consider whether reliance on DSA and the need for individual support for students with disabilities might be diminished by reviewing and revising methods of course delivery more generally.  In other words, HEIs are expected not to think reactively about how a particular student’s needs can be accommodated in a particular course, but rather proactively about how their entire portfolio of courses might be made accessible to students with a wide range of disabilities thus obviating or substantially reducing the need for further specific support. This is likely to require a very different, more proactive and more elemental approach towards the duty to make reasonable adjustments than has, if our experience is anything to go by, been the norm in the sector to date. There are also question marks over how practical an approach this is.

Arguably pulling in the opposite direction to this suggested expansive and inclusive approach to the duty to make reasonable adjustments is a proposed tightening of the definition of disability used in DSA assessments.  Currently, the assessment looks only for basic medical or other expert evidence that students have needs that will affect their studies.  From 2015 it is intended to instead adopt the Equality Act definition of “a physical or mental impairment that has a substantial and long term adverse effect on a person’s ability to carry out normal day to day activities”.  HEIs may find themselves in debate more often with students as to whether or not their condition meets the definition of a disability, if only to give students support to apply for DSA.

It is clear that the government and campaign groups alike expect that the changed definition will mean that fewer students can claim DSA.  It is also the case that HEIs’ legal duties extend only to those who satisfy the Equality Act definition. Therefore, there are likely to be students who have needs that are currently being addressed through DSA who will in future not get DSA, and who are not entitled to the benefit of the duty to make reasonable adjustments, save to
whatever extent they can avail of the greater “anticipatory” adjustments referred to above. Any residual unmet learning and support needs are not just simply going to go away, and may present practical on-the-ground challenges in terms of engagement with the programme of study or the wider campus experience.

Disability discrimination and the duty to make reasonable adjustments in particular forms by far the greatest number of student discrimination claims we see. It is an area that has been challenging for the sector to date, and the changes to DSA are likely to increase the pressure from students and campaign groups alike for greater focus on this area from HEIs.

Smita Jamdar
Partner and Head of Education
For and on behalf of SGH Martineau LLP
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M:  07909 925946
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E: smita.jamdar@sghmartineau.com
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