Protection of disabled students in higher education under the Data
Protection Act (DPA)(1995)

It was written on this list recently that:
"One of my colleagues has a worry and I wonder if any of you can help on an
issue relating to the Special Educational Needs and
Disability Act 2001. According to the Code of practice for over 16 education
providers, if a student tells a tutor of a particular disability and the
tutor fils to pass that on to a responsible person, the institution may not
be able to claim that it did not know of that person's disability. Bearing
in mind this is sensitive personal data, is merely telling a tutor explicit
enough consent to meet the requirements of the DPA?The SENDA CoP makes
specific reference to the DPA but seems to be particulary fuzzy in the above
example.All help gratefuly received"

"I asked this very question sometime back and sent it to the Disability
Rights Commission. Their response was as follows:
"In this situation the DRC Helpline advises that you have a system in place,
that if a student with a disability discloses the disability to one
department, the person they disclose it to explains that in order to assist
the student further, all the relevant departments would also need to be
informed. If they are not informed then the student could not expect
adjustments to be made in those departments. A form could be drawn up, that
says the student agrees to allow the details of their disability to be
passed onto any department that the student feels should know. This could
also be added to any student handbook. If the student is not happy, explain
that if other department are not informed then they can not make adjustments
for them and you could also provide the DRC's contact details if the student
is still concerned."

____________________________________________________________________

It would be helpful to note as a free outreach and dissemination activity
from a four year-long self-funded research project on disabled students in
higher education:

1. the official guidance from the Department for Education and Skills on the
disclosure of disability and collection of disability information by HEIs:

Department for Education and Skills (2002) Finding about people's
disabilities, DfES/0023/2002, (London, DfES). Freely available from the DfES
publications helpline, [log in to unmask], 0845 602 2260.

2. The recent case law on the Disability Discrimination Act (1995). This has
been gradual rather than based on a single case.

3. First, it is understood from the DfES (2002) that the DfES advises HEIs
to collect information about disabled students' disability from any resource
and anytime irespective of whether the student makes such disability
disclosure in the first place.

4. Second, it is understood that employers have strong defence where
disabled employees disclose disability but not provided medical
documentation certifying the extent to which their disabilities are
'disability' within the meaning of Section 1 of the DDA (1995) regarding the
Section 5(2) 'reasonable adjustment duty'.

5. Third, it is understood that HEIs have strong defence against 'reasonable
adjustment' duty imposed by the SENDA (2001) or DDA (1995) Part IV as
revised if disabled students do not disclose their disability. Furthermore,
the mere disclosure of disability by a disabled student would not be
sufficient to trigger the 'reasonable adjustment duty' for the HEIs under
the revised part IV of the DDA (1995).

6. The courts would certainly follow the case law developed under the Part
II of the DDA (1995) in interpreting the Part IV (revised) following the
'doctrine of precedence'. The substantial case law has been developed by the
Employment Appeal Tribunal (EAT) and the Court of Appeal (CA) since 2
December 1996 interpreting the Part I of the Act dealing with the legal
meaning of disability, disability tests of the DDA (1995), (this is true
also for the discrimination tests which are outside scope of the original
message).

7. Thus it is understood that the protection offered to disabled students in
higher education under the Data Protection Act (DPA) likely become
unenforceable to a large extent, as a possible answer to the original query
upon careful reflections on the original query and the DRC's official
response.
____________________________________________________________________

8. Background information about research project:
Current Public Policy Issues regarding Access to Higher Education by
Disabled Students: Research Project Homepage

Konur, O. (1999) Access to Higher Education by Disabled Students: Current
Public Policy Issues. Research Project Homepage, First created on 22 June
1999, 18 May 2002, 45,000 words (London, City University). [Online]
http://www.student.city.ac.uk/~cx639/index.htm

Abstract
This paper aims to present abstracts of the research output from the
interdisciplinary research project titled as ‘Access to Higher Education by
Disabled Students: Current Public Policy Issues" carried out as a
self-funded project between 1 October 1998 and 30 September 2002. Following
a decade long rule-making process, Special Educational Needs and Disability
Act (SENDA) (2001) extends the provisions of the Disability Discrimination
Act (1995) to
education including higher education in a three stage model starting from
September 2002 with the ‘less favourable treatment duty’. At the absence of
such regulation, a ‘good practice model’ has been adapted where the players
have had no incentives to develop evidence-based policies and practices
regarding access to higher education by disabled students. The main
hypothesis in this model can be summarised in one sentence after Lord
Ashley’s remarkable language; "all is well and lovely". The DDA (1995) and
the SENDA (2001) have been marketed as bringing ‘rights’ for disabled people
at large focusing on the ‘less favourable treatment’ and ‘reasonable
adjustment’ duties for the employers, education providers, service providers
and landlords among others. However, as the research
suggests the jurisdiction tests, disability tests, discrimination tests, and
enforcement tests of these Acts do matter. Furthermore the access to
‘impartial’ and ‘independent’ tribunals, access to legal aid, access to
legal representation and legal expert witness, access to medical expert
witness, access to accounting expert witness, access to occupational expert
witness, access to tribunal decisions do matter besides the four tests of
these Acts. The recent debates in the House of Lords on the ‘Readings’ of
the Disability Discrimination (Amendment) Bill and the recent consultations
on the European Employment Directive (2000) among others provide support for
such contentions besides the real life experiences of disabled people in
their attempt in accessing employment and justice in
tribunals and courts since 2 December 1996.

An interdisciplinary comparative research methodology have been adapted to
ascertain the current public policy issues emerging from the decade long
rule-making processes in access to higher education, professions, and
graduate employment by disabled students in the UK. The experience of
disabled people in accessing employment and justice as well as experiences
of students in accessing higher education and justice have formed the focus
of the research to ascertain the efficiency of the rules made under the
Special Educational Needs and Disability Act (2001) as well as the ‘the good
practice model’ adapted in higher education where it is deemed that ‘all is
well and lovely’. The abstracts are provided in this homepage for the
peer-reviewed journal articles, peer-reviewed conference proceedings,
peer-reviewed conference presentations, conference paper proposals, research
seminars, book chapter proposals, journal proposal, articles in professional
journals, doctoral research proceedings, reports, research briefs, project
proposals, public policy response papers,
conference reviews, outreach papers, JISCMAIL discussion lists, Resources
for the Disability Discrimination (Amendment) Bill (2002), Resources for
Special Educational Needs and Disability Act (2001), biography among others.
The information about the research working papers are also provided without
any abstract for copyright reasons. Where possible full-text links are
provided for educational and disability accessibility purposes. The
underlying research project
has been registered for a Ph.D. project between 1 October 1998 and 30
September 2002. Dr. Mike Floyd has been the Supervisor.


________________________________
Ozcan KONUR
Postal address: Rehabilitation Resource Centre (Walmsley Building Room
W223), City University, Northampton Square, London EC1V 0HB, The United
Kingdom.
E-mail: [log in to unmask]
Research project URL: http://www.student.city.ac.uk/~cx639/index.htm
Phone: 020 7040 0271





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