The Disability Discrimination Act 1995 (Amendment) (Further and Higher Education) Regulations 2006
| Jurisdiction | UK Non-devolved |
| Citation | SI 2006/1721 |
2006 No. 1721
DISABLED PERSONS
The Disability Discrimination Act 1995 (Amendment) (Further and Higher Education) Regulations 2006
Made 29th June 2006
Laid before Parliament 10th July 2006
Coming into force 1st September 2006
Whereas the Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 19721in relation to discrimination2.
The Secretary of State for Education and Skills, in exercise of the powers conferred by section 2(2) of that Act makes the following Regulations:—
PART 1
INTRODUCTORY
Citation, commencement, extent and interpretation
1.—(1) These Regulations may be cited as the Disability Discrimination Act 1995 (Amendment) (Further and Higher Education) Regulations 2006.
(2) These Regulations shall come into force on the day after that on which they are made so far as enabling anything to be done for the purposes of preparing and bringing into force on or after 1st September 2006 a code of practice under section 53A of the 1995 Act3concerning any provision of that Act as it will have effect on or after that date by virtue of these Regulations.
(3) Except as provided for by paragraph (2) and regulation 23, these Regulations shall come into force on 1st September 2006.
(4) These Regulations shall not extend to Northern Ireland.
2. In these Regulations “the 1995 Act” means the Disability Discrimination Act 19954.
Transitional provisions
3. Subsection (1A) of section 28V of the 1995 Act (inserted by regulation 15) applies in relation to a claim presented to a county court (or sheriff court, in Scotland) before the commencement date as well as one presented on or after that date; but it does not affect any claim which was determined by a county court (or sheriff court) before 1st September 2006.
Amendments to the 1995 Act and to the Equality Act 2006
Amendments to the 1995 Act and to the Equality Act 20065
4.—(1) The 1995 Act is amended as provided in Parts 2 to 6 of these Regulations, and the Equality Act is amended as provided in Part 7 of these Regulations.
(2) Part 8 of these Regulations makes transitory modifications to the 1995 Act.
PART 2
AMENDMENTS TO CHAPTER 2 OF PART 4 OF THE 1995 ACT
Discrimination against disabled students and prospective students, and harassment
5. The following subsections are inserted after subsection (3) of section 28R (discrimination against disabled students and prospective students)—
“3A It is unlawful for the body responsible for an educational institution to discriminate against a disabled person—
(a) in the arrangements which it makes for the purpose of determining upon whom to confer a qualification;
(b) in the terms on which it is prepared to confer a qualification on him;
(c) by refusing or deliberately omitting to grant any application by him for a qualification; or
(d) by withdrawing a qualification from him or varying the terms on which he holds it.
3B It is unlawful for the body responsible for an educational institution to subject to harassment a disabled person who—
(a) holds or applies for a qualification conferred by the institution;
(b) is a student at the institution; or
(c) seeks admission as a student to the institution.”.
Meaning of “discrimination” and “harassment”
6.—(1) In subsection (1) of section 28S (meaning of “discrimination”), for “section 28R” there is substituted “this Chapter”.
(2) For subsection (2) of section 28S there is substituted—
“2 For the purposes of this Chapter, a responsible body also discriminates against a disabled person if it fails to comply with a duty imposed on it by section 28T or 28UA(5) in relation to the disabled person.”.
(3) Subsection (4) of section 28S shall be omitted.
(4) For subsections (5) to (9) of section 28S there are substituted—
“5 Treatment, other than the application of a competence standard, is (subject to subsections (7) to (9)), justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.
6 The application by a responsible body of a competence standard to a disabled person is (subject to subsections (8) and (9)) justified for the purposes of subsection (1)(b) if, but only if, the body can show that—
(a) the standard is, or would be, applied equally to persons who do not have his particular disability, and
(b) its application is a proportionate means of achieving a legitimate aim.
7 If in a case falling within subsection (1), other than a case where the treatment is the application of a competence standard, a responsible body is under a duty under section 28T or 28UA(5) in relation to the disabled person, but fails to comply with that duty, its treatment of that person cannot be justified under subsection (5) unless that treatment would have been justified even if it had complied with that duty.
8 Subject to subsection (9), regulations may make provision, for purposes of this section, as to circumstances in which treatment is, or as to circumstances in which treatment is not, to be taken to be justified.
9 Treatment of a disabled person by a responsible body cannot be justified under subsection (5), (6) or (8) if it amounts to direct discrimination falling within subsection (10).
10 A responsible body directly discriminates against a disabled person if, on the ground of the disabled person’s disability, it treats the disabled person less favourably than it treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.
11 In this section and section 28T, “competence standard” means an academic, medical or other standard applied by or on behalf of a responsible body for the purpose of determining whether or not a person has a particular level of competence or ability.”.
7. The following section is inserted after section 28S (and before section 28T)—
“Meaning of “harassment“
28SA.—(1) For the purposes of this Chapter, a responsible body subjects a disabled person to harassment where, for a reason which relates to the disabled person’s disability, that body engages in unwanted conduct which has the purpose or effect of—
(a)
(a) violating the disabled person’s dignity, or
(b)
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
(2) Conduct shall be regarded as having the effect referred to in subsection (1) (a) or (b) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.”.
Duty to make reasonable adjustments
8. The following heading is substituted for that of section 28T and the following subsections are substituted for subsection (1) of that section—
“Responsible bodies' duties to make adjustments
28T.—(1) Where—
(a)
(a) a provision, criterion or practice, other than a competence standard, is applied by or on behalf of a responsible body,
(b)
(b) it is a provision, criterion or practice relating to—
(i) the arrangements it makes for determining admissions to the institution, or
(ii) student services provided for, or offered to, students by the responsible body, and
(c)
(c) that provision, criterion or practice places disabled persons at a substantial disadvantage in comparison with persons who are not disabled,
it is the duty of the responsible body to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the provision, criterion or practice having that effect.
(1A) Where—
(a)
(a) a provision, criterion or practice, other than a competence standard, is applied by or on behalf of a responsible body,
(b)
(b) it is a provision, criterion or practice for determining on whom a qualification is to be conferred,
(c)
(c) a disabled person is, or has notified the body that he may be, an applicant for the conferment of that qualification, and
(d)
(d) the provision, criterion or practice places the disabled person at a substantial disadvantage in comparison with persons who are not disabled,
it is the duty of the responsible body to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the provision, criterion or practice having that effect.
(1B) Where—
(a)
(a) a provision, criterion or practice, other than a competence standard, is applied by or on behalf of a responsible body,
(b)
(b) it is a provision, criterion or practice other than one mentioned in subsection (1)(b) or (1A)(b), and
(c)
(c) it places a disabled person who—
(i) holds a qualification conferred by the responsible body, or
(ii) applies for a qualification which the responsible body confers,
at a substantial disadvantage in comparison with persons who are not disabled,
it is the duty of the responsible body to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the...
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