3.1 The regulatory powers provided by section 96 (7) and (8) of the Equality Act 2010 do not require the regulator to make specifications, but provide the regulator with the power to do so.

3.2 The options for a regulatory approach to section 96 are as follows:

Option 1

3.3 The regulators do not make any specifications about where reasonable adjustments should not be made so that awarding organisations continue to make decisions in the absence of specifications from the regulator.

3.4 This option is not the preferred approach. There is a reasonable expectation that a regulator should exercise its new powers and consider issues raised by stakeholders from awarding organisations and disability groups regarding what should be specified under section 96. Furthermore, under Option 1, awarding organisations would continue to be obliged to consider each individual request for a reasonable adjustment, which may not be the most efficient or consistent approach where there are clear specifications which could be made.

Option 2

3.5 The regulator continues to provide only very high level guidance on the principles behind making and prohibiting reasonable adjustments, for example, by simply reiterating current principles on exemptions.

3.6 This option is similar to Option 1, and is not preferred for similar reasons. There is a reasonable expectation that a regulator should exercise its new powers and consider issues raised by stakeholders from both awarding organisations and disability groups regarding what should be specified under section 96.

Option 3

3.7 The regulator attempts to provide an exhaustive list of all reasonable adjustments that should not be made. This leaves only limited discretion to the awarding organisations.

3.8 This option is not the preferred approach. This option would remove any discretion on the part of awarding organisations that have a legal duty to make reasonable adjustments on the basis of individual requests. Each individual candidate has differing needs which may not be met by ‘blanket’ specifications and this could result in unforeseen outcomes. It may also lead to a mistaken assumption that where the regulator does not make a specification, the awarding organisation would be under an obligation to allow all requests.

Option 4

3.9 The regulator makes specifications where it believes there is evidence and/or justification that reasonable adjustments should not be made in line with the legal powers set out under section 96 (8). The regulator would seek views on the specifications it proposes through a consultation process. The specifications made would be limited to those where a reasonable adjustment should not be made, or where there should be restrictions on reasonable adjustments. Such specifications could not constitute an exhaustive list, thus allowing awarding organisations to consider individuals’ requests for reasonable adjustments in line with their legal duties.

3.10 This is the preferred approach, as it ensures that the regulator is fulfilling its legal powers without the risk of displacing the legal duty for awarding organisations to make reasonable adjustments.

3.11 This approach is less likely to lead to the mistaken assumption that where the regulator does not make a specification, a reasonable adjustment should automatically be made. The regulator would consider and consult on specific issues that have been raised by stakeholders in order to reach a reasoned conclusion. Option 4 also provides a useful tool to promote consistency, as specifications made under this approach would set out where individual decisions on reasonable adjustments would not need to be taken. The approach would minimise the risk of unwittingly disadvantaging individual candidates or fettering the discretion of awarding organisations by allowing the needs of disabled candidates to be considered individually.

3.12 The principles set out below, and the draft specifications set out in Part 4, follow the approach outlined in Option 4.