Callum Kenny .v. Brighton & Sussex Medical School (University failed to follow through with the adjustments set out in the Support Plan)

The Facts

Callum has Attention Deficit Hyperactivity Disorder (ADHD). The University was made aware of this and undertook an assessment of his needs which noted that,

“Once Callum is distracted it is extremely difficult for him to get back on track. In order for him not to be disadvantaged by his disability he is entitled to reasonable adjustments to me made. This is particularly important in exam settings. It is vital that Callum should be able to sit exams away from the main group in a quiet environment free of distractions.”

Callum undertook an exam on 14 August 2019. Whilst he was given a separate room in which to take his exam,  the corridor outside the room was noisy. Staff were talking and laughing loudly outside the room, boiling kettles and clinking spoons. The Invigilator that was present attempted to address the staff on a number of occasions but his requests for quiet were ignored.

Callum subsequently complained about non-compliance with the recommendations set out in his learning support plan. The Student Welfare Adviser confirmed that he should submit an application for mitigating circumstances.

Callum subsequently submitted an application, supported by a statement from the Learner Support Co-Ordinator, regarding his exam performance on the basis that the recommendations of his support plan were not in place. On 2 September 2019 he received a response stating that he had failed the exam and was required to leave the programme.

On 9th September 2019 Callum submitted his appeal and on 1st October 2019 it was upheld. They required him to pay for another Year of course fees and applied a cap on his marks for the next year.

The Law

Callum is a disabled person. He has Attention Deficit Hyperactivity Disorder (ADHD) and is disabled within the meaning of section 6 of the Equality Act 2010.

Section 91 of the Equality Act 2010 makes it unlawful for the University to discriminate against students in the way it provides education or affords access to facilities. It is also unlawful to subject the student to any other detriment.

We argued that the University failed to make reasonable adjustments (section 20/21) and discriminated  (s.15).

Reasonable adjustments

There is a legal duty on the University to make reasonable adjustments. Section 20 provides that such adjustments apply to any provision, criterion or practice of the defendant that places disabled students at a substantial disadvantage. It is notable that the duty in respect of education is an anticipatory one, and thus consideration should have been given in advance to the needs of disabled students in our client’s position. In this case, disabled students with specific learning disabilities like Callum are placed at a substantial disadvantage by the defendant’s practice of ignoring its assessment plans.

A failure to make a reasonable adjustment amounts to unlawful discrimination. The University has recognised that the adjustments reflected in the Learning & Support Plan are reasonable.

Furthermore, in addition to the duty to make reasonable adjustments, section 15 of the Equality Act 2010 makes it unlawful for the University to discriminate by treating a disabled student unfavourably because of something arising in consequence of his disability, unless the defendant can show that such treatment is a proportionate means of achieving a legitimate aim. In failing Callum, he has been discriminated against because of something arising as a consequence of his disability.

Outcome

A negotiated settlement provided the following outcome:

  • The University agreed to waive its tuition fee in the sum of £9,250 for the Claimant resitting Year 2 of his degree course in academic year 2019-2020
  • The University agreed to pay the Claimant £7,003 by way of damages.
  • The University agreed to pay the Claimant’s legal costs.

Case Handled by Carrie Clewes

Photo of Carrie Clewes with Fry Law Logo in the background

 

…… and a Testimonial…..

“My case was assigned to Carrie around a year ago – she has been so supportive and helpful throughout, made time for me to discuss things via telephone and explain things I didn’t understand, and most importantly she listened and cared. She really takes the time to make her clients feel valued and well supported, and has kept me in the loop at all stages of the claim. After my experience which led to the claim, it meant the world to have someone who cared, listened and took me seriously, especially considering nobody had done prior to me contacting Fry Law. This is a law firm full of compassionate people, who genuinely care about their clients and want to help people wherever possible. I could not have achieved the outcome I did without the advice and support from Carrie, and all of her hard work. Thank you so much Carrie for everything you’ve done – I can’t put into words how grateful I am! I’m also aware there will have been others involved in the case and helping out, who I did not have any direct contact with – many thanks to everyone who’s helped over the past year! Would also like to say a big thanks to Rachael Gaffney, who was a big help back in the early stages before I was assigned to Carrie. I’m sure I probably hassled with a lot of daft questions on what to do, and she was always willing to take some time to explain things to me on the phone! Cannot recommend Fry Law enough – hopefully I won’t encounter any difficulties with my disability in the future that would require legal action, however if I did I would not hesitate to return to Fry Law – an incredible team of people who have worked their absolute hardest to get the best possible outcome for me!”

Thanks Callum!

 

About the Author

Chris Fry

Chris is the founder of Fry Law.