Disability disclosure, confidentiality and evidence in a Higher Education context: Guidance Notes

Legal Note

This document is intended to give general guidance only. It does not constitute legal advice and is not an authoritative statement of the law. Professional advice should be sought before acting on the material contained in this document, as it may not be appropriate to your circumstances. This document relates only to the general disclosure of disability information and does not cover legal obligations which may apply to an education institution including under the Disability Discrimination Act 1995 or otherwise.

Note On Language

In these Guidance Notes 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 1995 (DDA), however, uses the term “disability” to mean what the social model defines as “impairment”, so it occurs in this way in these Guidance Notes when direct quotations from either the DDA or its associated Codes of Practice are used.

Acknowledgements

The Scottish Disability team would like to thank Gavin Simpson [gsimpson@dendrite.fsnet.co.uk] who devised and wrote this document. We would also like to thank all colleagues for their most helpful comments on draft versions of the document. In particular, we are grateful to Lesley Paterson, Thorntons WS Solicitors, for her legal input [lpaterson@thorntonsws.co.uk].
Contents Page

Legal Note 2
Note on Language 2
Acknowledgements 2
Section 1: Introduction 5
Section 2: Disclosure 7
2.1. Significance of disclosure 7
2.2. Disclosure and Reasonable Adjustments 8
2.3. What about situations where disclosure may result in
an applicant being denied access to a course? 12

Section 3: Confidentiality, privacy and data protection 15
3.1. What are the duties of the institution in the area of confidentiality? 16
3.2. What are the relevant duties of the institution under
the Data Protection Act 1998? 18

Section 4: Evidence 21
4.1. Evidence to justify making a reasonable adjustment 21
4.2. Evidence to justify what would otherwise be
discriminatory 22
4.3. Evidence to justify the use of public money 22
4.4. Evidence collected as to the risk posed to a disabled
student, or to others, for reasons related to Health and Safety 23

Appendix 1: Recommendations for Practice 26

Appendix 2: Useful resources 30


Section One: Introduction

Why should an institution encourage a student to disclose information regarding disability-related requirements? How can an institution ensure that it is satisfying all aspects of the law regarding confidentiality and the handling of personal, sensitive information? What evidence relating to a student’s impairment should an institution be holding, and why?

Questions such as these highlight the complexities involved when dealing with matters of disclosure, confidentiality and evidence as they relate to disabled students. They also highlight the importance of institutions having clear policies and procedures in place to avoid the possibility of the institution finding itself in breach of the Disability Discrimination Act 1995 (DDA), the Data Protection Act 1998 (DPA), and the law of confidentiality.

These notes are an attempt to offer guidance on some of the issues surrounding the gathering and use of information about student and applicant impairments in Higher Education. They have been distilled from a more in-depth document, which is available on the SDT Website (www.sdt.ac.uk). The open-ended nature of the legal obligations and the great variety of institutional arrangements in modern Higher Education make it very difficult to draw out general rules of procedure. These notes are not intended as a substitute for professional advice on an institution’s legal obligations. Their aims are to note the main areas where problems can arise, to explain some difficulties that can occur, to give some examples of good practice and to make some general recommendations for procedure and the development of institutional systems. These notes also assume that the reader has some basic knowledge of the DDA. Further information regarding an institution’s obligations under the DDA, is provided by the Disability Rights Commission (DRC) on www.drc-gb.org. In addition, help, resources and other information will be available within your institution. If you are involved in making any type of decision about a student’s disability-related requirements, you are advised to seek advice from those with expertise in this area.


Section Two: Disclosure

2.1. Significance of disclosure

Disclosure of information by applicants/students has particular significance under the DDA.

The relevant section of the DDA (s.1) defines a disability as “an impairment, mental or physical, which has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities”. The DDA places the student/applicant under no obligation to disclose an impairment. On the other hand, if a student/applicant does disclose to any individual employed or contracted by the institution, it is likely that the institution will be deemed to know about the student/applicant’s impairment thus immediately giving the student the protection of the DDA.

With respect to disclosure of information related to impairment, the Code of Practice relating to the education sections of the DDA (produced by the Disability Rights Commission) provides that (4.19) “If a disabled person has told someone within the institution or service about his or her disability, then the responsible body may not be able to claim that it did not know.” The only exception to this, supported in the Code, is that disclosure made in the context of a counseling or therapeutic relationship would normally be the subject of a duty of confidentiality due to the nature of such a relationship. Wider issues relating to confidentiality are given further consideration in Section Three.

The key reason for disclosure, from an applicant/student’s perspective, is to inform the institution of an impairment and to get reasonable adjustments made. In other words, the applicant/student will want not solely to disclose the fact of an impairment but to explore the practical implications in terms of the kinds of activities that students on a particular course are called upon to do. If barriers exist which prevent a student from having full access to the course for reasons related to an impairment, it falls to the institution to devise and implement reasonable adjustments which will mitigate or remove these barriers as far as possible.

Although there are benefits, as outlined above, which may encourage disclosure, other reasons exist which may incline the student against disclosing. Many disabled students may, for example, have experienced stigma and embarrassment as the result of the responses of those to whom they have disclosed an impairment. Others may fear discrimination or believe that disclosing an impairment will not be of benefit to them.

There may also be the (remote) possibility that reasonable adjustment is impossible. There may, for example, be cases where there is such a mismatch between a disabled person’s impairment and the demands of the course of study as to make the course inaccessible to the disabled person (see Section 2.3 for more information).

2.2. Disclosure and Reasonable Adjustments

Where it appears that an institution has failed to make reasonable adjustments for an applicant or student with an impairment under the DDA, there are two main issues to consider from a legal point of view: (a) whether the institution can be said to have known about the person’s impairment and (b) whether an anticipatory reasonable adjustment should have been made.

(a) Did the Institution Know?

As stated earlier, the Code of Practice provides that (4.19) “If a disabled person has told someone within the institution or service about his or her disability, then the responsible body may not be able to claim that it did not know.”

There are some related issues regarding confidentiality, which will be dealt with in Section Three. In general, however, it can be assumed that the institution will be taken to know what at least some (or even one) of its employees know.

If the institution did not know, and could not reasonably be expected to have known, then it cannot be said to discriminate by treating a disabled student less favorably or by failing to make reasonable adjustments. However, the circumstances may be such that the institution ought reasonably to have known and failure to find out about a person’s impairment will not be an excuse for the institution.

The Code envisages some circumstances where a student does not directly disclose but the institution ‘ought reasonably to have known’ that a student is disabled through some other means. It is important that institutions have procedures in place to handle these scenarios. Such a situation might result where:

(i) the impairment is obvious (e.g. a wheelchair user);
(ii) a disabled applicant applies to the institution in such a way that the institution is put on notice that s/he has an impairment. E.g. If an applicant contacts the institution using Typetalk, a telephone service only used by deaf people;
(iii) Information is gained from third parties, including family members and fellow-students (although an institution should be careful how it acts upon information received from third parties and should where possible try to verify such information with the student);
(iv) a student submits several medical certificates for the same illness to Registry and where the illness is such that it might be classed as a disability under the DDA – see Section 4 for further information regarding medical evidence.

The institution is also under a duty to encourage the student to disclose an impairment (Code Of Practice, para 4.18). Such encouragement may take many forms. The following may be appropriate:

• asking the applicant to declare an impairment or disability-related requirements on the application/matriculation form (or other documentation which may be completed by the student such as an application for accommodation or information about careers);
• providing opportunities for disclosure to staff, such as teaching staff;
• asking students in advance of exam time if they require specific disability-related arrangements;
• explaining the benefits of disclosure and measures taken to handle information about disability in a sensitive way;
• ensuring that the atmosphere and culture of the institution is open and welcoming so that a disabled student feels safe to disclose.


(b) Making Anticipatory Adjustments:

Separate to the link between disclosure and reasonable adjustments, the institution is also under general anticipatory duties to make its courses, services and facilities accessible. Examples include the provision of Learning Support to assist students with writing skills, making adjustments to the physical environment to improve accessibility to buildings and reviewing the accessibility and inclusivity of courses offered by the institution in terms of course content, delivery and assessment methods.

Recommendation for practice (1): Encouragements to disclose can be embedded in the institution’s information systems.

Questions can be put on application forms, reminders of the institution’s policies and encouragements to disclose can be circulated to students at key times in the academic year. The existence of specialist resources in the institution, such as disability and technology advisers and learning support specialists, can be publicised.

Recommendation for practice (2): Good practices by the institution can minimise the need to disclose.

The natural effect of anticipatory reasonable adjustments embedded in the general design of courses might be to make disclosure unnecessary in many cases.

Recommendation for practice (3): Appropriate training and exhortation to staff can make them easier to disclose to, and help them to handle disclosure in a way that is both useful to the student and meets the institution’s legal obligations.

Staff development can help staff to deal respectfully with disabled students who disclose and may save staff from making elementary mistakes which can involve the institution incurring liability under the DDA, the DPA and the law of confidentiality. It can also help staff to handle disclosures by ensuring that they know what resources are available, what to advise the student and to whom they should pass relevant information about the student’s impairment and support needs.

Recommendation for practice (4): The institution should ensure that it is easy to disclose and easy to decide if a person has disclosed.

Efforts should be made to ensure that students know that facilities exist in the institution for them to disclose impairments in a way which is responsive to their sensitivities about disclosing. Establishing such a system and promoting it to students so as to encourage disclosure may well count as an effective anticipatory reasonable adjustment.

2.3. What about situations where disclosure may result in an applicant being denied access to a course?

The idea that disclosure is always a positive thing, allowing reasonable adjustments to be made and rendering accessible that which was otherwise inaccessible, must be qualified by the recognition that not all courses are compatible with all impairments. Where a student seeks to access a course which, because of its content or how it is delivered at a particular institution, really is incompatible with the impairment, disclosure becomes problematic.

A number of points need to be made here. First of all, one should make a distinction: where an applicant discloses an impairment which is incompatible with a course as delivered at a particular institution, and is turned down by the institution as a result, the only lawful reason for turning the applicant down (i.e. treating them less favorably for a reason relating to their disability) is the incompatibility, not the disclosure. The institution will be acting lawfully only if there is a real incompatibility between the student’s impairment and the academic, prescribed or other material and substantial demands made by a particular course. The institution would also need to provide evidence that this incompatibility still exists after all possible reasonable adjustments have been considered. The institution should act fairly and reasonably when making any such decision. Furthermore, calling for evidence from the applicant — whether to establish the existence of an impairment, or to establish any potential mismatch between a student’s impairment and the core requirements of a course or the tasks associated with it — could be discriminatory where it is carried out insensitively, or where no genuine issues of accessibility are involved. Matters relating to the gathering and consideration of evidence to make these judgements will be explored further in Section Four.

In summary, if an institution is considering refusing an application on the basis of the applicant’s impairment, advice should be sought from various sources within the institution and as many options as possible explored to enable the student to participate in the course before a final decision is reached. The institution’s deliberations and investigations before reaching a decision should also be evidenced in writing.

Recommendation for practice (5): Assurances relating to the removal of barriers should be realistic.

It is not in the interests of the institution to give the impression that adjustments can always be made. It might find itself having to compensate a disabled person who, in reliance upon unwise and over-optimistic assurances about possible adjustments, has perhaps given up a job or incurred other expense to enrol for a course which is in fact wholly inaccessible to him. Assurances regarding removal of barriers must be realistic and provided to a disabled person at the earliest opportunity.

Recommendation for practice (6): Course descriptions should provide students with fair, accurate and appropriate information on which to make informed choices.

Course descriptions should fairly and accurately reflect the demands made by a course. This will often help clarify the issues raised by a particular applicant’s impairment. Course descriptions are, in this sense, a valuable aid to disabled applicants in deciding what to disclose. They should also be cast in a mode which encourages applicants to discuss with institution staff the extent to which a given course is accessible or can be made accessible to them.

Recommendation for practice (7): Disclosure itself should only be regarded as preliminary and should lead naturally to discussion of study implications.

Disclosure that one falls into an impairment category, or that one carries a medical diagnosis, contributes little if at all to the task of identifying what are the barriers to study in a particular case. One person who is blind may need considerable adjustment to study materials and arrangements, while another may need almost no adjustment to be made; that depends on the nature of the subject and the course, as well as on the precise extent or degree of the impairment – matters which require to be discussed with the disabled person.


Section Three: Confidentiality, privacy and data protection

In broad outline, there are three aspects of the law which need to be considered where a student discloses to an institution that s/he has an impairment:

The Disability Discrimination Act 1995 (DDA) provides that, where a student discloses to an institution that s/he has an impairment the institution will be deemed to have knowledge of this and will have a duty not to discriminate against the student. Where the student requests that the nature or extent of an impairment or of their disability-related requirements be kept confidential, this can have consequences for both the institution and the student.

The Data Protection Act 1998 (DPA) is concerned with “personal data”. This is defined as any information about an identifiable, living individual. The DPA also identifies “sensitive personal data” as a sub-set of “personal data”. The DPA lists the types of information that are considered “sensitive personal data” which includes information about “physical and mental health”. Information regarding disability is therefore likely to be regarded as sensitive personal data.

The law of confidentiality protects confidential information against disclosure and misuse. Traditionally, the law of confidentiality protected information disclosed within a relationship of trust and confidence such as that between doctor and patient. By contrast, recent developments in the law have laid more emphasis on the nature of the information concerned and rather less upon the pre-existence of a relationship of trust or confidence.


3.1. What are the duties of the institution in the area of confidentiality?

Disability-related information is likely to be by its nature confidential information in the sense that it ought not to be freely divulged without cause. Collected by staff in the course of interactions with the student, such information may be protected by the unspoken expectation that the information will be confidential.

In addition, if a member of staff agrees to a student’s request to keep disability-related information confidential, and subsequently discloses such information then, in some circumstances, s/he, or his/her employer, may have to pay damages to the person whose confidence has been broken. It is recommended that, rather than agreeing to keep disability-related information strictly confidential, staff members should make it clear at the beginning of the conversation with an applicant/student that, while they will do their best to hold the information as confidential and deal with it sensitively, they may, in certain circumstances, require to discuss the matter with the head of department or other members of staff. This does not prevent the tutor from agreeing to keep something confidential in a more limited sense. Thus it would be perfectly in order for a student to request, and for the tutor to agree, that some arrangement be made so that fellow-students or other staff are not made unnecessarily aware of the nature of the student’s impairment or of specific elements of his or her requirements.

The DDA mentions that confidentiality requests by applicants and students will be taken into account in determining reasonable adjustments. This implies that complying with such a request for confidentiality may sometimes involve making an adjustment which is less satisfactory in some sense than would otherwise be possible. Prudence dictates that the institution should record that discussions took place and perhaps get a confirmation from the student that the adjustment made, if any, was acceptable.

Recommendation for practice (8): Institutional policies should be clear on the confidentiality of student disclosure.

The institution ought to have a well-thought out policy on the confidentiality of disclosures of a sensitive nature made by students to staff, and staff who are likely to discuss such sensitive matters with students ought to be well-versed in their obligations. Such a policy is likely to stress the following points:

1. Sensitive disclosures should be treated as confidential in the sense that they are not to be discussed or disclosed to anyone without good reason;
2. If a student makes a disclosure of sensitive information to a member of staff and requests that the member of staff keeps this information confidential, the member of staff should only agree to keep the information confidential to the extent that s/he will not tell anyone else unless s/he has a good reason to do so;
3. Requests for a strict degree of confidentiality, such that the member of staff is not allowed to discuss the matter with a superior, should be declined. Should a student seek one-sidedly to impose such a requirement on a member of staff, by first making a disclosure and then declaring that she regards what she has disclosed as confidential, the member of staff should point out that s/he will not tell anyone else without good reason but that does not mean that consultation with a superior and further disclosure if necessary is ruled out;
4. It should be explained to the student that, if information regarding their disability-related requirements is only known by one or a few members of staff as a result of the student’s request for confidentiality, certain adjustments which would otherwise be available may not be able to be made;
5. In any case, all verbal discussions in which a student discloses that s/he has an impairment as well as requests for confidentiality should be noted in writing by staff members and, if at all possible, signed by the student so that a written record exists that the disclosure was made, that the student requested that the disclosure remain confidential and a discussion took place regarding reasonable adjustments - see Section 4 for further information regarding evidence.

3.2. What are the relevant duties of an institution under the Data Protection Act 1998?

The DPA applies only to dealings with recorded personal data (i.e. personal data which is written down). It forbids the improper recording, storage and use of personal data and in particular of sensitive personal data which is at issue in the context of disability. Infringements of the DPA can give rise to civil actions for compensation, in cases where the student has suffered damage.

An institution is expected to take additional precautions when dealing with sensitive personal data because of the nature of such information.

The DPA requires institutions to process personal data and sensitive personal data “fairly and lawfully”. In order to process data fairly, the individual must be aware of what information the institution holds about them, what the institution intends to do with such information, and to whom the institution will disclose it to. Therefore, it is essential that, when information about disability is disclosed, the disabled person is told at the time that the information is collected what will be done with this information and to whom it will be passed. If this is not possible at the time of collection, it should be done as soon as is reasonably practicable after receiving the information.

In order to process information about disability fairly and lawfully, certain conditions set out in the DPA require to be met. The most straightforward ground which allows the processing of sensitive personal data is to get the explicit and informed consent of the student. If it is not possible to obtain the explicit and informed consent of the student, there may be other grounds for processing sensitive personal data. These include:-

1. that the institution is processing such information necessary for the exercise of any functions conferred on it under any enactment – i.e. the DDA;
2. that it is being processed for the purposes of, or in connection with, any legal proceedings (including prospective legal proceedings). This will only be valid where there is a strong possibility of a claim against the institution under the DDA.
Explicit and informed consent is the most straightforward way for an institution to process disability information fairly and lawfully and therefore is the route that institutions should take. If this is not possible and a member of staff feels that they may be processing disability information under one of the other grounds under the DPA, specialist advice should be sought.

Recommendation for practice (9): Institutions should check that their institutions existing DPA Notification is sufficient to cover processing activities.

As a requirement of the DPA, an institution has to supply a general description of the nature of the data it holds, the processing taking place and details of the technical and organisational measures taken against (among other things) unlawful processing of personal data to a government office known as the Office of the Information Commissioner. This is known as “Notification”. If an institution is processing data which is not covered by its Notification, such processing is likely to contravene the DPA. In most institutions, the systems for meeting the DPA obligations and reporting requirements are administered by specialist staff, and a good deal of thought will already have gone into the matter of how staff should be instructed to deal with sensitive personal information. For present purposes, it is worth checking that academic staff and other staff who work with disabled students are aware of what types of processing are covered in the Notification of their institution.

Recommendation for practice (10): Institutions should review documentation on which the personal information of students is collected.

Staff should be aware that sensitive personal data, including data concerning students’ impairments, should normally be gathered, stored and used only in such a way as the student has explicitly consented to; such consent needs to be well-informed and should, wherever possible, be secured in writing. Staff should be aware that processing of such data without explicit consent may incur liability for the institution. Therefore, all documentation in which the personal information of a student is collected, such as matriculation forms, applications for accommodation services etc, should be reviewed to ensure they contain a data protection statement explaining what data is being collected, why it is being collected, what it will be used for and whether it will be disclosed to any third parties. Ideally, the documentation should be signed and dated by the student to show his or her consent to such processing.


Section Four: Evidence

Evidence — information which documents a fact, or entitles or justifies a decision — gets scant mention in the DDA and the associated Code of Practice which applies to Higher Education. Yet it is clear that the practice of institutions is heavily influenced by the need to seek evidence and to document steps taken.

It is important that staff know when it is appropriate, or even necessary, to seek evidence prior to making any adjustments, and when such a request for evidence may in itself be discriminatory.

4.1. Evidence to justify making a reasonable adjustment

In practice, in most instances where evidence is collected, it is collected in the interest of supporting the disabled student and to justify adjustments being made. Evidence that plays this role will often be information about aspects of the student’s impairment(s) and abilities which might affect engagement with the central concerns of the course or fulfilment of core requirements. For example, this would include dyslexia assessments which establish that the student has a specific learning difficulty, reports from a doctor that certify impaired stamina, liability to infections, or dietary requirements, or specialist occupational health assessments that identify susceptibility to particular stressors in the study or work environment.

In some cases, it may be appropriate also to hold evidence that the particular support or adjustment put in place will be effective in removing any substantial disadvantage which the student might otherwise face, while allowing the student to meet the same fundamental learning objectives as other students.

4.2. Evidence to justify what would otherwise be discriminatory

The second reason is, in a way, the opposite of the first. The Code makes the point that ‘a responsible body should not be looking for reasons or excuses to discriminate against disabled people or students…’ but sometimes, unfortunately, the institution will find it necessary to take actions which, in the absence of justification (such as maintaining academic standards or protecting the interests of other students), would be discriminatory. Where such justification is required, it will be prudent to hold appropriate evidence in case of a subsequent claim. An example of such action contemplated in the Code is the exclusion of a student whose illness is likely to make him violent or disruptive.

4.3. Evidence to justify the use of public money

Much day-to-day generation of evidence is to provide assurance that public money is properly spent. If disabled students are entitled to particular financial help, the institution which dispenses this money or authorises its dispensation must be sure that the student meets the condition under which s/he is allowed to benefit, namely being disabled.

In many cases, such as when a student applies for a Disabled Students’ Allowance, the institution will seek evidence from the student on behalf of a grant awarding authority. This may consist of medical certificates and technology assessments.


4.4. Evidence collected as to the risk posed to a disabled student, or to others, for reasons related to Health & Safety

Cases may arise where the institution is under an obligation to consider the likelihood and seriousness of harm that may occur to a student or to third parties as a result of the student’s health condition. This obligation arises not under the DDA but under the law of negligence. Since the student is likely to be in control of most of the information that will be useful in forming a view, the institution will naturally seek information from the student regarding the nature of this risk. This may take the form of communication from medical experts or occupational health advisers.

In extreme circumstances, where existing information suggests the likelihood of serious harm, e.g. that a student is liable to serious injury or capable of serious violence when ill and that his or her illness develops rapidly and unpredictably, then this would strengthen the institution’s position for requiring that the student produces expert evidence about the likely effects of study on the well-being of the student before s/he is allowed to commence/continue/ return.

On the other hand, as we do not ask all students for a certificate of fitness to study, it is important to ensure that any requirement to produce such evidence is supported by having a proportionate reason for requiring it. Asking a disabled student to provide this evidence, in the absence of clear reasons which are both material and substantial, is likely to be discriminatory.

Recommendation for practice (11): Ensure that staff are aware of valid reasons for seeking evidence and refrain from requesting evidence when this is inappropriate.

In all cases evidence has to be interpreted and a decision made by staff who are in a position to make judgements about the demands of study, the core requirements of the course and the permissible modifications that can be made to study and assessment arrangements. Normally, academic staff responsible for the course will be best placed to make the required decisions about what adjustments are possible and what are not. The institution’s Disability Service (or equivalent) will be able to take a view on the student’s health history and on the specialist evidence to hand from psychiatric or medical advisers. It will also be alive to the possibilities of IT equipment and other ways, both human and technological, of supporting the student. The student has obviously a central role in any decision to commence/ continue/resume study, and his or her decision in the matter should normally carry weight, provided that s/he is in a fit condition to take it (a matter on which medical evidence may be desirable). Here, as elsewhere, it is desirable that the disabled student, the academic department and the Disability Service collaborate in a three-way partnership to identify possible barriers to study and to remove or mitigate them.

Recommendation for practice (12): Ensure that mechanisms are in place to enable a balanced judgement of a student’s requirements to be made.

Decisions which call for evidence often require evaluation of a student’s requirements and entitlements in the context of wider issues. Such evaluation should be done explicitly and in a collaborative manner between the disabled student, the institution’s Disability Service and the relevant academic department, with a Disability Adviser normally assuming a lead role.

Recommendation for practice (13): Ensure that some form of evidence of the discussion is established where a student discloses verbally that s/he has an impairment or disability-related requirements.
As outlined further in Section 3, where a student discloses to a member of staff that s/he has an impairment or disability-related requirements, including where the student requests that such disclosure be kept confidential, the member of staff should take a written note of the discussion which took place to ensure that the institution has written evidence which it can call upon should such discussion ever come into question in the future.


Appendix 1: Recommendations for Practice

Recommendation for practice (1): Encouragements to disclose can be embedded in the institution’s information systems.
Questions can be put on application forms, reminders of the institution’s policies and encouragements to disclose can be circulated to students at key times in the academic year. The existence of specialist resources in the institution can be publicised.

Recommendation for practice (2): Good practices by the institution can minimise the need to disclose.
The natural effect of anticipatory reasonable adjustments embedded in the general design of courses might be to make disclosure unnecessary in many cases.

Recommendation for practice (3): Appropriate training and exhortation to staff can make them easier to disclose to and help them to handle disclosure in a way that is both useful to the student and meets the institution’s legal obligations.
Staff development can help staff to deal respectfully with disabled students who disclose and may save staff from making elementary mistakes which can involve the institution incurring liability.

Recommendation for practice (4): The institution should ensure that it is easy to disclose and easy to decide if a person has disclosed.
Efforts should be made to ensure that students know that facilities exist in the institution for them to disclose impairments in a way which is responsive to their sensitivities about disclosing. Establishing such a system and promoting it to students so as to encourage disclosure may well count as an effective anticipatory reasonable adjustment.

Recommendation for practice (5): Assurances relating to the removal of barriers should be realistic.
If an institution gives false assurances regarding adjustments, it might find itself having to compensate a disabled person who, in reliance upon unwise and over-optimistic assurances about possible adjustments, has perhaps given up a job or incurred other expense to enrol for a course which is, in fact, wholly inaccessible to him/her.

Recommendation for practice (6): Course descriptions should provide students with fair, accurate and appropriate information on which to make informed choices.
Course descriptions should fairly and accurately reflect the demands made by a course. This will often help clarify the issues raised by a particular applicant’s impairment. They should also be cast in a mode which encourages applicants to discuss with institution staff the extent to which a given course is accessible or can be made accessible to them.

Recommendation for practice (7): Disclosure itself should only be regarded as preliminary and should lead naturally to discussion of study implications.
Disclosure that one falls into an impairment category, or carries medical diagnosis, contributes little if at all to the task of identifying what are the barriers to study in a particular case. That depends on the nature of the subject and the course, as well as on the precise extent or degree of the impairment – matters which require to be discussed with the disabled person.

Recommendation for practice (8): Institutional policies should be clear on the confidentiality of student disclosure.
The institution ought to have a well-thought out policy on the confidentiality of disclosures of a sensitive nature made by students to staff, and staff who are likely to discuss such sensitive matters with students ought to be well-versed in their obligations.

Recommendation for practice (9): Institutions should check that their existing DPA Notification is sufficient to cover processing activities.
If an institution is processing data which is not covered by its Notification, such processing is likely to contravene the DPA. It is worth checking that academic staff and other staff who work with disabled students are aware of what types of processing are covered in the Notification of their institution.
Recommendation for practice (10): Institutions should review documentation on which the personal information of students is collected.
Staff who work with disabled students should be aware that sensitive personal data, including data concerning students’ impairments, should normally be gathered, stored and used only in such a way as the student has explicitly consented to. Staff should also be aware that a disclosure of such data which is inconsistent with the DPA may incur liability for the institution. All documentation on which the information on students is collected should contain an appropriate data protection statement outlining what types of processing will take place.

Recommendation for practice (11): Ensure that staff are aware of valid reasons for seeking evidence and refrain from requesting evidence when this is inappropriate.

It is important to ensure that any requirement to produce such evidence is supported by having a proportionate reason for requiring it. Asking a disabled student to provide this evidence, in the absence of clear reasons which are both material and substantial, is likely to be discriminatory.

Recommendation for practice (12): Ensure that mechanisms are in place to enable a balanced judgement of a student’s requirements to be made.
Decisions which call for evidence often require evaluation of a student’s requirements and entitlements in the context of wider issues. Such evaluation should be done explicitly and in a collaborative manner between the disabled student, the institution’s Disability Service and the relevant academic department, with a Disability Adviser normally assuming a lead role.

Recommendation for practice (13): Ensure that some form of evidence of the discussion is collected where a student discloses verbally that s/he has an impairment or disability-related requirements.

Members of staff should make written notes of their discussions with a student where s/he disclosed that s/he has an impairment or disability-related requirements so that the institution has written evidence of the same.


Appendix 2: Useful Resources

• Disability Discrimination Act 1995 (as amended) Code of Practice for providers of Post-16 Education and Related Services

Produced by the Disability Rights Commission
www.drc-gb.org

This site also contains a link to the Disability Discrimination Act 1995 and a useful series of booklets on particular aspects of disability law in Higher Education.

• Teachability: Creating an Accessible Curriculum for Students with Disabilities

Published in 2000 by the Scottish Higher Education Funding Council, this document aims to be a source of information and a structure to assist institutions to review their provision for disabled students. It is available from the University of Strathclyde Special Needs Service: www.teachability.strath.ac.uk

• Access All Areas: disability, technology and learning, eds Phipps, Sutherland, and Seale

This publication contains useful information on the choice of IT solutions for access problems experienced by disabled students. It was published in 2002 by Techdis, www.techdis.ac.uk

• Skill: National Bureau for Students with Disabilities - a generally indispensable source of information on good practice for disabled students. www.skill.org.uk

• Code of Practice for the Assurance of Academic Quality Standards in Higher Education. Section 3: Students with Disabilities. Published in 1999 by the Quality Assurance Agency for Higher Education. www.qaa.ac.uk

• The Data Protection Act 1998

www.hmso.gov.uk/acts/acts1998/19980029.htm

• The Human Rights Act 1998

www.hmso.gov.uk/acts/acts1998/19980042.htm

• Finding Out About People’s Disabilities

A document produced by the Department for Education and Skills. www.lifelonglearning.co.uk/findingout/index.htm

• Providing Work Placements for Disabled Students

A document produced by the Department for Education and Skills.

www.lifelonglearning.co.uk/placements/index.htm