1.1 As recognised by the House of Commons Work and Pensions Select Committee, achieving disability equality often requires that disabled people are treated differently to non-disabled people. This is clearly reflected in the Equality Act 2010 (the Act), which sets out a duty for employers and service providers to make reasonable adjustments for disabled people. This duty applies only in the context of disability; it does not apply to discrimination on the grounds of other protected characteristics, such as gender, race or age.

1.2 The difference between the educational attainment of disabled and non-disabled school learners has been recognised by Government. In 2009/10, Department for Education (DfE) figures show that 46 per cent of learners with special educational needs achieved 5 or more A*-C grades at GCSE or equivalent, compared to 85 per cent of learners without identified special educational needs ⁷.

1.3 The Act places the following duties on awarding organisations in respect of disability:

1. the duty to make reasonable adjustments for disabled candidates
2. the duty not to discriminate against, harass or victimise disabled people in the arrangements for conferring qualifications.

1.4 These are not new duties; they were originally set out in the 2005 Disability Discrimination Act. For a number of years awarding organisations have made reasonable adjustments for disabled candidates taking certain general qualifications. Such reasonable adjustments can be broadly categorised as:

• presentational adjustments - e.g. provision of modified or Braille papers
• scheduling adjustments - e.g. provision of additional time
• response adjustments - e.g. allowing candidates to speak or sign answers.

1.5 The reasonable adjustment of qualifications for disabled candidates is part of what is commonly known within the education sector as 'access arrangements'.

Access arrangements, however, include a broader range of measures taken for reasons including, but not limited to, a candidate’s disability. Examples include the use of bilingual dictionaries for candidates who use English as an additional language, or post-examination special consideration for candidates who may have been affected by a recent family bereavement.

1.6 Both the 2005 Disability Discrimination Act and the Equality Act 2010 have recognised the principle that reasonable adjustments may not always be appropriate in relation to qualifications. This is due to the fact that qualifications are designed to assess what a candidate can and cannot do. A qualification may only be adjusted up to a certain point before the meaning and value of the qualification may be undermined. Intrinsic to this is the distinction between the skills that are being assessed (e.g. the ability to analyse historical data) and the skills required to access the assessment (e.g. the ability to turn the pages of the History examination paper). While it should be appropriate for the skills required to access the examination to be subject to reasonable adjustment, it is important that assessment objectives – i.e. the skills, knowledge and understanding being assessed by the qualification – should not be compromised by a reasonable adjustment.

1.7 There are different approaches to the reasonable adjustment of vocational and general qualifications as set out in the Act. Section 53 of the Act places a duty on awarding organisations to make reasonable adjustments in relation to vocational qualifications. However where an awarding organisation applies a competence standard to a vocational qualification, application of that standard is not disability discrimination unless it is indirect discrimination under section 19 of the Act. Under previous legislation,8 competence standards also applied to general qualifications but this is no longer the case under the 2010 Equality Act. The approach to the reasonable adjustment of general qualifications is dealt with in section 96 of the Act.

1.8 The Disability Rights Commission now part of the Equalities and Human Rights Commission (EHRC) provided a revised Code of Practice for trade organisations and qualifications bodies in relation to the 2005 Disability Discrimination Act. However, this Code of Practice has not yet been revised to reflect the changes made by the 2010 Equality Act. A link to this document is provided in Appendix 3.

7. Statistical First Release, GCSE and Equivalent Attainment by Pupil Characteristics in England, 2009/10, Department for Education www.education.gov.uk/rsgateway/DB/SFR/s000977/SFR37_2010.pdf