Access to justice by students in general or by disabled students in higher
education
It was written that:
"It's not a decision I'd like to defend in Court! There isn't a definition
of disability in the Student Support Regs and there is no guidance which
ever suggests that we should refer to a Benefits Agency definition. The
notes do say that LEAs should consider all cases where extra costs are
incurred in studying because of a physical disability or specific learning
difficulty. If you feel this is the case and you have the LEA's decision in
writing, it may be worth asking DfES for their opinion - the Student Suport
team in Darlington can be contacted on 01325 392822. They can't give you a
definite answer but may be able to advise on how they feel the case should
be treated. This may give weight to the discussion with the LEA."
The Research Project on 'Access to higher education by disabled students'
has looked into the experiences of disabled people in accessing employment
(regarding the Part II of the Disability Discirmination Act (1995) and in
accessing school (regarding various education acts lastly revised by the
Part I of the Special Educational Needs and Disability Act, SENDA (2001).
The second series of epxeriences mostly relate to Local Education Auhorities
(LEAs). The project has also looked into the experiences of students in
higher education and professionals in accessing justice based on the case
law.
DDA (1995) has been in operation since 2 December 1995 and there are now
over 300 appellate cases decided by the Employment Appeal Tribunal and Court
of Appeal (or Court of Session Inner House in Scotland). Similar amount of
appellate cases emerged regarding LEAs in the appellate courts (High Court,
Court of Appeal, House of Lords, and European Court of Human Rights); the
most notable case of Phelps was taken against a number of LEAs.
Without going into the technical details and but with taking the potential
'misinformation claims' put forward occasionally in this list and in another
place (a series of research papers are currently going through the editoral
process), it would be helpful to make four notes on regarding the original
message and the message cited as above for information purposes for
preventing the provision of wrong advice to the related students, in part
response to the public claims funded by tax payers' money that SENDA or the
revised part IV of the DDA would make it possible for disabled students to
bring their claims to the courts freely and widely (indeed the lookers for
'misinformation' in this list should visit these public claims, rather than
this message):
First, it has been common to cite and use as evidence the findings of the
disability tests carried by Benefits Agency under the DDA (1995), as
recognised by the appellate courts.
Second, Local Education Authorities (LEAs) have had substantial amount of
discretion in making grant decisions, recognised even the highest court,
House of Lords or ECHR.
Additionally there has been substantial body of case law on student support
in recent years. Again here, the grant making agencies have had substantial
degree of discretion in their decision making processes, as recognised by
the courts.
Finally, the substantial body of case law on access to justice by students
in higher education in recent years suggests that this access has been
problematic and many cases have been thrown out due to procedural errors or
time limits without the case being tried in its substance. In short it
appears that as the courts noted students had been ill-advised in bringing
their cases to courts.
________________________________
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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