Scottish
Disability
Team
NB This is the third page of the online version of the SDT Guidance Note Guidance On International Courses and Disability Issues, published in April 2007.
Where a university either:
that university shall have certain obligations under the DDA to those students which it places on international courses.
Arrangements for providing international courses for students studying abroad will also be covered in Part 4 of the DDA. Therefore, the provision of less favourable treatment in education services must be avoided, and reasonable adjustments must be made where required.
Notwithstanding the provisions of Part 4 of the DDA, it is worth bearing in mind that a university has a duty of care to its students. In order for there to be liability, there must have been a breach of that duty of care. In assessing whether a breach has occurred, the test to be applied is whether a reasonable man would have been able to reasonably have foreseen that an individual would come to harm as a result of the fault or negligence attributable for that person.
The case of Erin McLean v University of St. Andrews gives an illustration of how liability may arise. The case involved a young woman who was a student at the University of St. Andrews. As part of her Russian language course, she was required to spend 6 months in full time education at Odessa University in the Ukraine. The University of St. Andrews were responsible for ensuring that Odessa University provided a safe and adequate hostel accommodation for any exchange students. When walking back to her hostel one night with her boyfriend, the student alleged that they were assaulted, and she was raped, by a group of Russian seamen. On her return to Scotland, the student raised an action against the University of St. Andrews.
The University of St. Andrews admitted that it owed a duty of care towards its student to ensure that she was adequately and safely accommodated at the foreign placement. Given that the alleged crime had happened outwith the campus area controlled by the Odessa University Authorities, the university could not be held liable to the student under the circumstances - for instance, the student had been advised not to walk back to her hostel at night by way of the area where the alleged incident took place. The decision in this case made it clear, however, that had the alleged crime happened within the campus area which had been controlled by the Odessa University Authorities, the university may well have been liable to the student.
As we can see, the above case dealt specifically with student participation in a foreign exchange programme. The same principles of duty of care will apply to any situation where a university arranges a student placement outwith the home institution.
Where a student is studying at an educational institution outside of the UK, legal responsibilities for ensuring that discrimination does not take place during the period of the international course will still lie with the "home" university. While the university may arrange for the educational institution outside of the UK to provide education services for students, the university will still have a responsibility to ensure that any disabled students are not discriminated against.
Also, were the university to become aware that a discriminatory act has taken place in relation to one of its students during a placement on an international course, the university may also be responsible under the DDA for preventing discrimination continuing or recurring. While these considerations will usually concern students studying abroad, it is also possible that such considerations will be applicable in relation to students who are studying in their home country.
For example, if the student comes from the country where the university has set up a campus outwith the UK, but the campus is still run by (and the student is matriculated with) the "home" university.
What will constitute a "reasonable adjustment" in this context will be influenced by a number of factors. The radical alternative of substituting some other activity for a study abroad may in some cases be judged by the university as inconsistent with core academic standards, and in other cases the matter may be subject to the requirements of an external professional body. Within these parameters, however, the university has the duty to seek adjustments which have the effect of alleviating what would otherwise amount to a "substantial disadvantage" for a disabled student.
Universities will also have an obligation placed upon them not to treat any disabled students less favourably for reasons relating to their disability. Where a university is seeking to give an equal opportunity to all of its students in relation to offering placements on international courses, this may often prove problematic.
Refusing to admit a disabled student on the grounds of their disability, for example, would be considered direct discrimination and cannot be justified by a university. In addition, refusing to admit a student on grounds "relating to a disability" could be considered less favourable treatment on the grounds of this being disability- related discrimination, and might also be considered unlawful under the DDA.
If the university offers students the opportunity to study abroad, it would be unlawful for the university to directly discriminate against any of its students on the grounds of their impairment, for example, by excluding a wheelchair user from studying abroad if this was only on the basis that it would be more difficult for staff to accommodate the specific needs of that student.
Next page - 4: Management of risks involved.