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Equality law obligations in higher education: reasonable adjustments under the Equality Act 2010 in assessment of students with unseen disabilities

Published online by Cambridge University Press:  21 March 2019

Harriet Cameron ,
Bryan Coleman ,
Tamara Hervey Open the ORCID record for Tamara Hervey [Opens in a new window] ,
Sabrina Rahman  and
Philip Rostant
Harriet Cameron
Affiliation:
School of Childhood, Youth and Education Studies, Manchester Metropolitan University, Manchester, UKand School of Education, University of Sheffield, Sheffield, UK
Bryan Coleman
Affiliation:
Disability and Dyslexia Support Service, University of Sheffield, Sheffield, UK
Tamara Hervey*
Affiliation:
School of Law, University of Sheffield, Sheffield, UK
Sabrina Rahman
Affiliation:
School of Law, University of Sheffield, Sheffield, UK
Philip Rostant
Affiliation:
Employment Judge
*
*Corresponding author. Email: T.Hervey@sheffield.ac.uk
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Abstract

8% of UK students have an ‘unseen disability’: a specific learning difficulty, autistic spectrum condition, or mental ill health. A department with 1000 students has, on average, 80 students with such unseen disabilities. These students have a variety of potential sources of legal redress if they consider a university has failed properly to accommodate their disability. The most plausible is a claim under the Equality Act 2010. We have experienced a lack of clarity in understanding the nature and extent of those Equality Act entitlements, and the corresponding obligations that fall upon universities, and their staff. These confusions occur in many contexts, but the one that is most important to students is their entitlements where assessments are concerned. We set out to explain the relevant law, and to consider how it applies to some, perhaps typical, unseen disabilities in the context of a range of approaches taken by universities in assessing their students. Our principal and important conclusion is that there is no ‘quick fix’ approach according to which someone may say that they are Equality Act compliant. However, there are several considerations which will increase (or decrease) the likelihood of compliance. In brief, these constitute: effective communication; procedures that secure individual decisions, rather than blanket policies or approaches; and what amounts to no more than good inclusive educational practice for all students.

Keywords

education lawdiscrimination lawlegal education
Type
Research Article
Information
Legal Studies , Volume 39 , Issue 2 , June 2019 , pp. 204 - 229
Copyright
Copyright © The Society of Legal Scholars 2019 

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References

1 An admittedly small-scale study, reported here, suggests that the majority of academics are indeed so supportive: Kendall, L ‘Supporting students with disabilities within a UK university: lecturer perspectives’ (2018) 55(6) Innovations in Education and Teaching International 694Google Scholar; as does the larger scale study reported by Smith, M ‘Participants’ attitudes to inclusive teaching practice at a UK university: will staff “resistance” hinder implementation?’ (2010) 16 Tertiary Education and Management 211CrossRefGoogle Scholar.

2 Similar concerns are reported on in Smith, above n 1.

3 Although the government has gone some way to redressing this (see ‘Inclusive teaching and learning in higher education as a route to excellence’ (Disabled Students Leadership Group, DoE, January 2017), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/587221/Inclusive_Teaching_and_Learning_in_Higher_Education_as_a_route_to-excellence.pdf), this lack of understanding is compounded by the available literature. For instance, some discussions of adjustments under the EqA 2010 in this context (such as Konur, O ‘Teaching disabled students in higher education’ (2006) 11 Teaching in Higher Education 351CrossRefGoogle Scholar; Smith, above n 1), although discussing general concerns about implications of EqA 2010 compliance for academic standards, fail to even mention ‘competence standards’ (see below), a key element of the EqA 2010 obligations.

4 While this experience is obviously not exhaustive, it is both wide-ranging in perspective and over a long period of time.

5 This project was cleared by the University of Sheffield Research Ethics Process, Application 009619, June 2016. We are grateful for the support of the University of Sheffield's SURE programme: https://www.sheffield.ac.uk/sure.

6 The fictional scenarios were the basis of Rahman's final year undergraduate dissertation, entitled ‘Does the Equality Act 2010 and the UK legal system sufficiently accommodate the needs of students with unseen disabilities in higher education?’. We draw on Rahman's scenarios indirectly to inform our analysis in this paper.

7 Kendall, above n 1, found academic staff ‘feeling overwhelmed, under pressure and fearful of being accused of discrimination’ and that ‘the issue of reasonable adjustments was an emotive area for the participants [academic staff in a northern English university], associated with doubt and fear regarding what they needed to do and how they could do it’, at p 9. See also Riddell, S and Weedon, E ‘Disabled students in higher education: discourses of disability and the negotiation of identity’ (2014) 63 International Journal of Educational Research 38CrossRefGoogle Scholar.

8 For a detailed discussion see Harris, N ‘Students, mental health and citizenship’ (2004) 24 Legal Studies 349CrossRefGoogle Scholar.

9 See eg Collini, S What are Universities For? (Harmondsworth: Penguin, 2012)Google Scholar; Back, L Academic Diary (London: Goldsmiths Press, 2016)Google Scholar; Collini, S Speaking of Universities (Verso, 2017)Google Scholar; Furedi, F What's Happened to the University? (Abingdon: Routledge, 2017)Google Scholar.

10 While in employment contexts, the preferred term is ‘person with a disability’, certainly in the UK, in the context of higher education, ‘disabled students’ is preferred.

11 See the HESA data available at https://www.hesa.ac.uk/data-and-analysis/students/overviews?keyword=All&breakdown%5B%5D=581&year=620 (last accessed 17 January 2019). HEFCE data from 2013/14 shows that 10% of all students in the UK have disclosed a disability, although in many HE providers these disclosure rates sometimes are close to 20%: see ‘Inclusive teaching and learning in higher education as a route to excellence’, above n 4.

12 American Psychiatric Association (APA) Diagnostic and Statistical Manual of Mental Disorders (Arlington, VA: American Psychiatric Publishing, 5th edn, 2013).

13 See Table C – Percentage of UK domiciled students in receipt of Disabled Students’ Allowance by location of HE provider and academic year 2000/01 – 2016/17, available at https://www.hesa.ac.uk/news/01-02-2018/widening-participation-summary, which shows 6.6% of full time first degree students in receipt of DSA 16/17, compared to 1.5% in 2000/01.

14 For a discussion of the complexities in over and under-representation of women and girls, and particular ethnic groups in particular subcategories of Special Educational Need see eg G Lindsay, S Pather and S Starand Special Educational Needs and Ethnicity: Issues of Over- and Under-Representation Research Report No 757 (DfES, 2006), available at https://www.naldic.org.uk/Resources/NALDIC/Research%20and%20Information/Documents/RR757.pdf.

15 Mortimore, T and Crozier, WR ‘Dyslexia and difficulties with study skills in higher education’ (2006) 31 Studies in Higher Education 235CrossRefGoogle Scholar; Hees, V, Moyson, T and Roeyers, H ‘Higher education experiences of students with autism spectrum disorder: challenges, benefits and support needs’ (2015) 45 Journal of Autism and Developmental Disorders 1673CrossRefGoogle ScholarPubMed.

16 Jansen, D et al. ‘Functioning and participation problems of students with ASD in higher education: which reasonable accommodations are effective?’ (2017) 32 European Journal of Special Needs Education 35CrossRefGoogle Scholar; Murphy, E ‘Responding to the needs of students with mental health difficulties in higher education: an Irish perspective’ (2017) 32 European Journal of Special Needs Education 110CrossRefGoogle Scholar; Madriaga, M and Goodley, D ‘Moving beyond the minimum: socially just pedagogies and Asperger syndrome in UK higher education’ (2009) 14 International Journal of Inclusive Education 115CrossRefGoogle Scholar; Hartrey, L, Denieffe, S and Wells, JSG ‘A systematic review of barriers and supports to the participation of students with mental health difficulties in higher education’ (2017) 6 Mental Health and Prevention 26CrossRefGoogle Scholar; Mortimore and Crozier, above n 15.

17 D Jansen et al, above n 16

18 Cameron, HE ‘Beyond cognitive deficit: the everyday lived experience of dyslexic students at university’ (2016) 31 Disability & Society 322Google Scholar; Collinson, C and Penketh, C ‘“Sit in the Corner and Don't Eat All the Crayons”, Postgraduates with Dyslexia and the Dominant “Lexic” Discourse’ (2010) 25 Disability & Society 7CrossRefGoogle Scholar.

19 Nicolson, RI and Fawcett, AJ Dyslexia, Learning, and the Brain (Massachusetts: Massachusetts Institute of Technology Press, 2008)CrossRefGoogle Scholar.

20 Knott, F and Taylor, A ‘Life at university with Asperger syndrome: a comparison of student and staff perspectives’ (2014) 18 International Journal of Inclusive Education 411CrossRefGoogle Scholar; Madriaga, M ‘Enduring disablism: students with dyslexia and their pathways into UK higher education and beyond’ (2007) 22 Disability & Society 399CrossRefGoogle Scholar; Carroll, JM and Iles, JE ‘An assessment of anxiety levels in dyslexic students in higher education’ (2006) 76 British Journal of Educational Psychology 651CrossRefGoogle ScholarPubMed; Glennon, T ‘The stress of the university experience for students with Asperger syndrome’ (2001) 17 Work: A Journal of Prevention, Assessment and Rehabilitation 183Google ScholarPubMed.

21 Cameron, H and Billington, T ‘“Just deal with it”: neoliberalism in dyslexic students’ talk about dyslexia and learning at university’ (2017) 42 Studies in Higher Education 1358CrossRefGoogle Scholar; Cameron, H and Billington, T ‘The discursive construction of dyslexia by students in higher education as a moral and intellectual good’ (2015) 30 Disability & Society 1225CrossRefGoogle Scholar.

22 The concept that the location of disability is the environment, and not the person, is well-known in disability studies. It has entered into the law through the UN Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entry into force 3 May 2008) 2515 UNTS 3, which adopts a ‘social model’ of disability. The ‘social model’ points to the interaction between impairment and barriers erected by society which create the disability. For instance, a person with a mobility impairment is disabled by some aspect of society (say, the built environment) which makes it difficult or impossible to mobilise without the ability to walk. An early use of the term ‘social model’ is found in Hunt, P Stigma: The Experience of Disability (London: Geoffrey Chapman, 1966)Google Scholar. For further discussion see Quinn, G, McDonagh, M and Kimber, C (eds) Disability Discrimination Law in the US, Australia and Canada (Dublin: Oak Tree Press, 1993)Google Scholar; Oliver, M Understanding Disability: From Theory to Practice (Basingstoke: Palgrave Macmillan, 1996 and 2009)CrossRefGoogle Scholar; Stein, MA ‘Disability human rights’ (2007) 95 California Law Review 75Google Scholar; Roberts, JL ‘Healthism and the law of employment discrimination’ (2014) 99 Iowa Law Review 571Google Scholar at 584–587; Solanke, I ‘Stigma: a limiting principle allowing multiple-consciousness in anti-discrimination law’ in Schiek, D and Chege, V (eds) European Union Non-Discrimination Law (Abingdon: Routledge, 2009)Google Scholar; Heißl, C and Boot, G ‘The application of the EU Framework for Disability Discrimination in 18 European countries’ (2013) 4 European Labour Law Journal 119CrossRefGoogle Scholar; Waddington, L ‘“Not disabled enough”: how European courts filter non-discrimination claims through a narrow view of disability’ (2015) European Journal of Human Rights 11Google Scholar; O'Brien, C ‘Union citizenship and disability: restricted access to equality rights and the attitudinal model of disability’ in Kochenov, D (ed) Citizenship and Federalism in Europe: The Role of Rights (Cambridge: Cambridge University Press, 2016)Google Scholar.

23 For SpLDs see for example Elliott, JG and Grigorenko, E ‘The end of dyslexia?’ (2014) 27 The Psychologist 576Google Scholar; for autism spectrum conditions see for example Schopler, E ‘Are autism and Asperger syndrome (AS) different labels or different disabilities?’ (1996) 26 Journal of Autism and Developmental Disorders 109CrossRefGoogle ScholarPubMed; and for mental health conditions see for example Horwitz, AV and Wakefield, JC The Loss of Sadness: How Psychiatry Transformed Normal Sorrow into Depressive Disorder (New York: Oxford University Press, 2007)Google Scholar.

24 See Beardon, L Autism and Asperger Syndrome in Adults (Sheldon Press, 2017)Google Scholar.

25 For example, a recent review of the literature on students with ADHD concluded that effective support for such students takes into account characteristics of the individual student, and not only of the environment: see Jansen et al, above n 16.

26 For examples see Cameron, H and Nunkoosing, K ‘Lecturer perspectives on dyslexia and dyslexic students within one faculty at one university in England’ (2012) 17 Teaching in Higher Education 341CrossRefGoogle Scholar; Murphy, above n 16; Kendall, above n 1; Hall, W ‘Supporting students with disabilities in higher education’ in Campbell, A and Norton, L (eds) Learning, Teaching and Assessing in Higher Education: Developing Reflective Practice (Exeter: Learning Matters, 2007) pp 130–139Google Scholar.

27 See https://dsa-qag.org.uk/students/faqs (last accessed 17 January 2019).

28 Disabled Students’ Allowances: Written statement HCWS347, 2 December 2015, available at http://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2015-12-02/HCWS347/ (last accessed 17 January 2019); Department for Business Innovation and Skills Government Response: Consultation on Targeting Funding for Disabled Students in Higher Education from 2016/17 onwards, December 2015, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/481399/bis-15-657-targeting-funding-for-disabled_students-in-higher-education-government-response.pdf (last accessed 17 January 2019). For discussion of the effects of funding reductions see Riddell and Weedon, above n 7.

29 The changes to DSA are explicitly recognised as a driver for improvements in the approach to the duty to make reasonable adjustments by the Department of Education in its guidance document ‘Inclusive teaching and learning in higher education as a route to excellence’, above n 4.

30 There is some evidence, albeit anecdotal at present, of a growing willingness by students to litigate against universities. See for example https://www.buzzfeed.com/rosebuchanan/heres-why-more-and-more-students-are-suing-their?utm_term=.wcQ721NVP#.htlGmvN0b and http://www.telegraph.co.uk/education/2017/08/07/students-sue-oxford-discrimination-amid-surge-mental-health/ (both last accessed 17 January 2019).

31 For further discussion of managing litigation risk by universities see Harris, above n 8.

32 See Smith, above n 1.

33 As Mummery LJ put it in Maxwell [2011] EWCA Civ 1236, para 7, ‘Litigation in the courts against Higher Education Institutions … is not, except in very special circumstances, a course that anyone fortunate enough to be accepted for a course of higher education should be encouraged to take up. Most people would agree it is not in the interests of students … to engage in a stressful and expensive activity like litigation …’.

34 Indeed under the EqA 2010, s 118(2), the time limit for bringing a claim to the County Court is extended from 6 to 9 months if a complaint is referred to the OIA within 6 months of the act that is the subject of the complaint. Time can also be extended to 8 weeks after the conclusion of Alternative Dispute Resolution proceedings (EqA 2010, s 140AA).

35 Under The Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015, SI 2015/576.

36 HRA 1998, s 6.

37 HRA 1998, s 3.

38 Salomon v Commissioners of Customs and Excise [1967] 2 QB 116 (CA); Ghaidan v Mendoza [2004] 3 WLR 113 (HL); R v Gul [2013] UKSC 64; see Waibel, M ‘Principles of treaty interpretation: developed for and applied by national courts’ in Aust, H and Nolte, G (eds) The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence (Oxford: Oxford University Press, 2016)Google Scholar.

39 The Universal Declaration of Human Rights, Art 26; International Covenant for Economic, Social and Cultural Rights, Art 13; Convention to Eliminate Discrimination Against Women, Art 10; Convention on the Rights of the Child, Arts 28–30 (though only for those few students under the age of 18); Convention on Rights of Persons with Disabilities, Art 24; European Social Charter, Art 17; EU Charter of Fundamental Rights (CFR), Art 14. The UK must also comply with the EU CFR when implementing EU law, see Case C-167/10 Fransson ECLI:EU:C:2013:280. For discussion of the EU CFR's right to education see eg G Gori ‘Article 14’ in Peers, S et al. (eds) The EU Charter of Fundamental Rights: A Commentary (Oxford: Hart, 2014)CrossRefGoogle Scholar; Wallace, C and Shaw, J ‘Education, multiculturalism and the Charter’ in Hervey, T and Kenner, J (eds) Economic and Social Rights Under the EU Charter of Fundamental Rights: A Legal Perspective (Oxford: Hart, 2003)Google Scholar.

40 R (Douglas) v North Tyneside Metropolitan Borough Council [2003] All ER (D) 375.

41 HRA 1998, Pt II, Article 2 of Protocol 1.

42 Article 14.

43 HRA 1998, s 8.

44 Simpson v United Kingdom [1989] 64 DR 188; Ali v Head Teacher and Governors of Lord Grey School [2006] UKHL 14, [2006] 2 AC 363 and A v Essex County Council [2010] UKSC 33, [2010] WLR (D) 184.

45 Clark v University of Lincolnshire and Humberside [2000] 3 All ER 752.

46 For example, Buckingham et al v Ryecotewood College, Warwick Crown Court, 28 February 2003 (unreported) cited in Harris, above n 8.

47 Phelps v London Borough of Hillingdon [2000] 3 WLR 776, as recently applied in Siddiqui v Chancellor, Masters & Scholars of the University of Oxford [2018] EWHC 184 (QB).

48 Harris, above n 8.

49 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 as applied in Liennerd v Slough Borough Council [2002] All ER (D) 239.

50 Defined in s 6 (see below).

51 EqA 2010, s 91(3)(a) and (10).

52 EqA 2010, s 114. There is also scope for an EqA 2010 claim to form part of a judicial review of a decision of a university.

53 UNCRPD (adopted 13 December 2006, entry into force 3 May 2008) 2515 UNTS 3. The UNCRPD is not itself directly enforceable in UK law, see R (on the application of SG and others (previously JS and others)) v Secretary of State for Work and Pensions [2015] UKSC 16, although note the dissenting opinions of Hale and Kerr (in the minority).

54 On the history of the DDA see B Doyle ‘Enabling legislation or dissembling law? The Disability Discrimination Act 1995’ (1997) 60 Modern Law Review 64.

55 An early use of the term ‘social model’ is found in Hunt, above n 22. For further discussion see the sources referred set out above, n 22, and Lawson, A and Schiek, D (eds) European Union Non-Discrimination Law and Intersectionality (Ashgate, 2011)Google Scholar; Oliver, M ‘Defining impairment and disability: issues at stake’ in Emens, E and Stein, M (eds) Disability and Equality Law (Ashgate, 2013)Google Scholar; Waddington, L ‘Saying all the right things and still getting it wrong: the Court of Justice's definiton of disability and non-discrimination law’ (2015) 22 Maastricht Journal of European and Comparative Law 576CrossRefGoogle Scholar.

56 Art 1 of the UNCRD defines disability thus: ‘Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others’.

57 Council Decision 2010/48/EC concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ L 23/35.

58 [2000] OJ L 303/16.

59 See for example Cases C-335/11 and 337/11 HK Danmark, acting on behalf of Ring v Dansk Almennyttigt Boligselskab; HK Damark, acting on behalf of Werege v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S ECLI:EU:C:2013:222.

60 In fact we doubt even this is required. For a fuller exploration of this point see Hervey, T and Rostant, P ‘“All about that bass”? Is non-ideal-weight discrimination unlawful in the UK?’ (2016) 79 Modern Law Review 248CrossRefGoogle Scholar.

61 COM(2008) 426 final, 2008/0140 (CNS).

62 See n 53 above.

63 See n 38 above.

64 There are some exceptions to this broad rule. For examples, conditions which fluctuate or recur are also covered, as are certain conditions such as cancer where disability is ‘deemed’ from the point of diagnosis and even after cure.

65 [2006] IRLR 112.

66 [2010] ICR 1052.

67 Available at https://www.equalityhumanrights.com/sites/default/files/equalityact2010-technicalguidance-feandhe-2015.pdf (last accessed 17 January 2019).

68 Available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/570382/Equality_Act_2010-disability_definition.pdf (last accessed 17 January 2019).

69 [2010] ICR 1052.

70 EqA 2010, s 212(1).

71 DDA 1995, Sch 1, Art 4.

72 The Guidance, B2.

73 The Guidance, B3.

74 The Guidance, B4 and B5.

75 The Guidance, B6.

76 Goodwin v The Patent Office [1999] IRLR 2 (EAT); Aderemi v London and South Eastern Railway Ltd [2013] ICR 591.

77 EqA 2010, Sch 1, Art 2.

78 The Guidance, C3.

79 ‘Substantial disadvantage’ means a disadvantage that is more than merely trivial, see EqA 2010, s 212(1).

80 Indeed, one of the few decisions of the OIA to reach the courts in judicial review proceedings, Maxwell [2011] EWCA Civ 1236, concerns whether the OIA was reasonable to fail to make a ‘finding’ on the question of whether disability discrimination had taken place. It was held both at first instance (Case No CO/2778/2009, Foskett J) and at appeal that it is not irrational for the OIA to refuse to do so in resolving a student complaint.

81 Technical Guidance, above n 67, para 7.35.

82 Kendall, above n 1, reports examples of students challenging their mark, on the basis that the fact that the students had ‘learning support plans’ in place entitled them to higher marks in their assessments.

83 See Technical Guidance, above n 67, para 7.21.

84 EqA 2010, Sch 8, para 20.

85 See also Smith, above n 1.

86 Technical Guidance, above n 67, paras 7.19–7.25.

87 See Disability Rights Commission, ‘Finding Out About People's Disabilities – A good practice guide for further and higher education institutions’ (DfES, 2002), available at http://dera.ioe.ac.uk/7937/1/Understanding%20the%20DDA.doc (last accessed 17 January 2019).

88 There is (obviously) a significant body of literature on effective assessment in higher education contexts. For some examples see Bloxam, S and Boyd, P Assessment in Higher Education: A Practical Guide (Milton Keynes: Open University Press, 2007)Google Scholar.

89 The Equality Challenge Unit, a HEFCE funded charity has produced a very useful guidance paper, ‘Understanding the interaction of competence standards and reasonable adjustments’ (ECU, July 2015), available at https://www.ecu.ac.uk/publications/understanding-the-interaction-of-competence-standards-and-reasonable-adjustments/ (last accessed 17 January 2019). The authors recommend it as further reading on this issue.

90 Technical Guidance, above n 67, para 7.36.

91 For a detailed discussion of the implications of choices of different higher education assessment approaches, in the Irish context, see Hanafin, J et al. ‘Including young people with disabilities: assessment challenges in higher education’ (2007) 54 Higher Education 435CrossRefGoogle Scholar.

92 The OIA publishes some of its decisions in the form of summary ‘case studies’ on its website: see http://www.oiahe.org.uk/news-and-publications/recent-decisions-of-the-oia/case-studies.aspx (last accessed 17 January 2019). From these, we can learn that the OIA has taken the view that universities are sometimes obliged to adjust degree classifications where they have failed to take into account a disability (see eg Case Studies 79, 78); but sometimes there is no obligation to adjust marks (see eg Case Study 60). A rule to the effect that a disability must be disclosed within three months of the date of the assessment may sometimes have to be adjusted for a student with unseen disabilities (see eg Case Study 31). Failure on the part of a university to consider retrospectively the effects of an unseen disability in the light of further information that emerged about the effectiveness of various adjustments was unreasonable (Case Study 14). But any reasoning behind these decisions is not published and they lack the specificity of judicial proceedings.

93 Smith v Churchill's Stairlifts plc [2006] ICR 524.

94 The Code, para 6.28.

95 The Technical Guidance, para 7.61.

96 Noor v Foreign and Commonwealth Office [2001] ICR 695.

97 The importance of communication between all parties when reasonable adjustments in this context are discussed has been stressed in the literature, see eg Elcock, K ‘Supporting students with disabilities: good progress, but must try harder’ (2014) 23(13) British Journal of Nursing 758CrossRefGoogle Scholar.

98 [2007] IRLR 579.

99 Qualification bodies are defined in the EqA 2010, s 54, and the definition excludes institutions in higher Education (s 54(4)(d)).

100 [2007] IRLR 579 at 582, para 27.

101 [2006] ICR 280.

102 For the 2017/18 academic year, full time eligible students under the Disabled Students’ Allowance scheme may receive a specialist equipment allowance of up to £5238 for the whole course, see https://www.gov.uk/disabled-students-allowances-dsas/what-youll-get (last accessed 17 January 2019).

103 See, on the effects of increased managerial pressures on academic staff on equality agendas for students with disabilities, Kendall, above n 1; Smith, above n 1; Hanafin et al, above n 91; Tinklin, T, Riddell, S and Wilson, A ‘Policy and provision for disabled students in higher education in Scotland and England: the current state of play’ (2004) 29 Studies in Higher Education 637CrossRefGoogle Scholar.

104 It is common for universities to require, for instance, that disability or other mitigating circumstances be disclosed within two or three months of the date of an assessment.

105 EqA 2010, Sch 13, para 8.

106 EqA 2010, Sch 13, para 8(2).

107 For a discussion of the benefits of disclosure see Kendall, above n 1; Cunnah, W ‘Disabled students: identity, inclusion and work-based placements’ (2015) 30 Disability & Society 213CrossRefGoogle Scholar. Reasons a student may choose not to disclose include perceptions of stigma and not identifying as disabled see eg Riddell and Weedon, above n 7; Mortimore, T and Crozier, WR ‘Dyslexia and difficulties with study skills in higher education’ (2006) 31 Studies in Higher Education 235CrossRefGoogle Scholar, either of which may be associated with class or nationality-based cultures.

108 See for example Jelic v Chief Constable of South Yorkshire Police [2010] IRLR 744.

109 Incidentally, such an activity would go some way to meeting the duty to ‘foster good relations between persons who share a relevant protected characteristic and persons who do not …’, EqA 2010, s 149(1)(c).

110 L Wing The Autistic Spectrum (Oxford: Pergamon, 1997).

111 Environment Agency v Rowan [2008] ICR 218.

112 Smith, above n 1, reported that ‘Teaching staff preferred a “quick fix” to solve current problems rather than more general or background information that might feed into their practice’.

113 The phenomenon of ‘bargaining in the shadow of the law’ is well-known in (socio)legal studies: see Mnookin, R and Kornhauser, L ‘Bargaining in the shadow of the law: the case of divorce’ (1979) 88(5) Yale Law Journal 950CrossRefGoogle Scholar.

114 In its January 2017 guidance paper (fn 23) the Disabled Students Sector Leadership Group recommends the adoption of a strategic approach to the duty to make reasonable adjustments. In general terms, the guidance emphasises the importance of inclusive teaching practices (in order to meet the anticipatory duty) and recommends a corporate policy which ensures that all the relevant considerations contribute to a decision to make (or not to make) an adjustment. One specific suggestion is that of a named, senior, individual with responsibility for ensuring compliance with the duty to make adjustments (para 35).

115 ‘Rights talk buys ten minutes of their attention. I use it like a magic wand’: J Osborn, Human Rights Program Harvard Law School and Francois Xavier, Bagnoud Centre for Health and Human Rights Workshop Economic and Social Rights and the Right to Health (September 1993), which appears to be unpublished and no longer available on the internet, cited in Hervey, T ‘The “right to health” in EU law’ in Hervey, T and Kenner, J Economic and Social Rights Under the EU Charter of Fundamental Rights (Oxford: Hart, 2003)Google Scholar.

116 Beetham, D ‘What future for economic and social rights?’ in McCorquodale, R Human Rights (Taylor & Francis, 2017)Google Scholar; Young, K ‘The minimum core of economic and social rights: a concept in search of content’ (2008) 33 Yale Law Journal 113Google Scholar; Cavallaro, JL and Schaffer, E ‘Less as more: rethinking supranational litigation of economic and social rights in the Americas’ (2004–05) 56 Hastings Law Journal 217Google Scholar; Eide, A, Krause, C and Rosas, A (eds) Economic, Cultural and Social Rights (The Hague: Kluwer, 2001)Google Scholar; Craven, M ‘A view from elsewhere: social rights, international covenant and the EU Charter of Fundamental Rights’ in Costello, C (ed) Fundamental Social Rights (Dublin: Irish Centre for European Law, 2001)Google Scholar; Steiner, H and Alston, P International Human Rights Law in Context (Oxford: Oxford University Press, 2000)Google Scholar; Beetham, D ‘What future for economic and social rights?’ (1995) 43 Political Studies 41CrossRefGoogle Scholar.