Posted by: MandyS | December 20, 2011

Activity 34.1 (b) – issues

This was quite a hard read and Seale raises a multitude of issues. These are the ones which are of the most interest to me, although not necessarily related to my own context.

One of the main issues that stands out for me is the fact that there is little or no enforcement of accessibility rules; “most organisations do not yet appear to have a detailed and structured mechanism for auditing compliance with accessibility rules.” (Seale, 2006, p. 145). The suggestion is that enforcement is the carrot for accessibility; “accessibility is presented as being about compliance with legal rules” (Seale, 2006, p. 141). Self- compliance and retaliation do not appear to be sufficient so reliance is being placed on State intervention i.e. the courts.

It may be that I have worked in the law for too long, but to me this suggests too much faith is being placed on the legal system solving issues of accessibility, whereas in reality, the law can create more problems than it solves. Why will a judicial determination of the meaning of ‘reasonable adjustment’ offer any more clarity? From experience, judges err on the side of caution in interpreting the meaning of ‘reasonable,’ which appears in many a statute, and simply interpret it as meaning ‘what is reasonable in the circumstances’. This appears to be very much how educational institutions interpret ‘reasonable adjustment’ at the moment i.e. based on ‘importance, practicality and financial resources’ (Making Your Teaching Inclusive, 2006). The by-product of relying on the circumstances to determine reasonableness is the inconsistencies in meaning it then produces, leaving neither the institutions nor potential litigants any further forward.

There is also a suggestion that the evolution of case law is being hampered by out-of-court settlements, a practice condoned by the courts. In reality, this is simply a trait of the civil law system. It is rare for civil cases, in any field, to reach trial, so this is not something peculiar to ‘disability rights litigation’ (Seale, 2006, p. 150). Judicial review is an option where the decision was illegal, irrational or proceduraly improper.  However, the litigant has to establish the body exercises a public function and it is a public law matter. If successful in this, the sting in the tail is that the court cannot alter the initial decision, it can only order the body to take the decision again, properly.  

Litigation itself is dependent upon the person affected commencing proceedings and there may be many reasons why they choose not to. Seale (2006, p. 156) suggests one reason being because “disabled students are unsure of their rights and do not have the financial or legal support.” This is no doubt true but I also think that it depends on the student. Some students see their disability as enough of a challenge and are less likely to ‘battle the system’ (Managing Disability) whereas others are more proactive in that respect. Also worth considering is what the student wants to achieve, which is undoubtedly ‘reasonable adjustment’. The Equality Act 2010 specifies that the remedies available are those available for Tort (compensation or an injunction) and Judicial Review.  The court can therefore order the institution to take the decision again, but there is still no guarantee that this will result in the reasonable adjustment being achieved.

Policing accessibility is a second issue. One method is ‘naming and shaming’; the idea being to ‘motivate those institutions demonstrating low accessibility into improving’ (Seale, 2006 p. 155) thus maintaining self-regulation as a means of enforcement. This would be fine, but the means of testing appears to produce inconsistencies which has resulted in an emphasis on ‘how accessibility should be assessed rather than on compliance’ (Seale, 2006 p. 152). Likewise, those empowered to advocate and influence appear to be distracted by the effectiveness of guidelines rather than enforcement. A further problem seems to be that the studies invariably fail to name the offending institutions, which rather defeats the object of ‘naming and shaming.’

The first thing that springs to mind about this is that relying on disparate organisations to police accessibility is not an effective means of promoting compliance. Each appear to have their own agendas and enforcement does not appear to be at the top. One rather draconian method would be an independent body charged with the responsibility, but this would undoubtedly have cost and resource implications. Likewise, without the ability to impose sanctions, its effectiveness would also be questionable.

Students not being ‘equal players’ (Seale, 2006 p. 155) is the third issue. Where accessibility is an issue, and reasonable adjustment is not forthcoming, a student can ‘complain, negotiate or litigate’ (Seale, 2006 p. 155). This in effect is easier said than done. Establishing who to complain to in the first place and lack of negotiating power are two main stumbling blocks. One means of bridging the gap is for the students to use ‘evidence’ (Konur, 2002, referred to by Seale, 2006 p. 156) as a tool. This could be achieved individually but would be more effective if students worked together to ‘build a comprehensive evidence base of good and bad practice that can be used to re-write the rules’ (Seale, 2006 p. 156).

This is a commendable solution but I just wonder where it sits with the ‘anticipatory’ nature of reasonable adjustments. In effect, the responsibility for enforcement is being shifted to the student, which is surely not what is envisaged by the legislation.

 These are just a few thoughts which I intend to mull over.

References:

Goode, J. (2007) ‘“Managing” disability: early experiences of university students with disabilities’, Disability & Society, vol. 22, no. 1, p. 35–48; also available online at http://libezproxy.open.ac.uk/ login?url=http://dx.doi.org/ 10.1080/ 09687590601056204 (accessed 8 September 2011)

Making Your Teaching Inclusive (2006) Legal and Professional Context [online], http://www.open.ac.uk/inclusiveteaching/pages/legal-and-professional-requirements/index.php (accessed 19 September 2011)

Seale, J. (2006) E-Learning and Disability in Higher Education: Accessibility Research and Practice, Abingdon, Routledge; also available online at http://learn.open.ac.uk/mod/resourcepage/view.php?id=569013&direct=1 (accessed 15 December 2011)

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