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I requested deferral of examinations and my university refused. Is this discrimination?

Gatsby81Gatsby81 Posts: 3Member Listener
Around 18 months ago I started to go through what has been diagnosed as a 'severe depressive episode.' I was suicidal and this has happened previously in my life. Over the last 2 months or so I have become considerably better, but for that period of my life I was really struggling and couldn't focus on much. I spent most of my free time crying and would avoid being in public as I could not control when or where I would start being emotional. I wasn't in a fit state to be able to study at all. Because of this I don't think I could have demonstrated anywhere near my level of ability in an exam. I argued to my university that there was no way I could have completed the exam on a level playing field compared to people who have not had to experience my condition over the last year. I was 'offered' (I'd say 'told about' rather than 'offered') adjustments like extra time, a scribe or a separate room - but I don't see how any of these adjustments can compensate for a lost year of study. 

The same course runs in the next academic year to a new cohort of leaner's so I asked to simply be moved to the next year to give myself time to recover and sit the exam at the next opportunity. I say 'simply' - I understand there may be some admin/small costs for this but its not like they are putting on an entire course/exam just for me. The exam will be going ahead in the next window with or without me sitting it. This was refused. The only reasoning I was given is that there is a rule that people have to complete their courses within a prescribed time frame.

I submitted a formal complaint to the university in an attempt to resolve this. They should have replied within 10 days but that was 2 months ago and despite numerous attempts by myself to get a response, I am being ignored.

I would like to know whether people feel that asking to sit the exam in another exam window is a reasonable adjustment or not?

Replies

  • MarkmywordsMarkmywords Posts: 393Member Chatterbox
    You should try to get some independent advice regarding what is and is not possible first. Then you can know if it was within their power to agree to it.
    No-one in the public or charitable education sectors accepts criticism as they "don't make mistakes." Your complaint will have gone in the bin.
    Even if you could make a good argument that you were temporarily disabled and discriminated against, there are no mechanisms to enforce it at court. The best you could do would be to sue them in civil court.
  • LiamO_DellLiamO_Dell Posts: 1,114Member, Administrator Scope community team
    Hi @Gatsby81,

    I'm sorry to hear about the problems you have been having with your university, and that you are still waiting on a response.

    Is there a disability centre or Student Support department who may be able to help you? Is there a representative at your university's Students' Union who may be able to offer you some advice and support?
    Liam
  • mikehughescqmikehughescq Posts: 3,163Member Brian Blessed
    There are very clear rules on repeating but equally there is discretion. On the other hand I’m not yet clear what happened. It sounds like you sat exams for which your health prevented you studying but I’m not clear. It sounds like, having been unable to study, you asked to be excused the exams but were offered reasonable adjustments instead. Could you clarify please? 

    Outside of clarifying the facts I think there are a couple of other things to clear up. Firstly, there is quite a considerable cost in having you redo a year. Do not underestimate that. Secondly, it’s not hard to see why the institution might be reluctant to go down that road given the cost etc. The key factor may be the nature of your illness. A student struck down with say an acute illness for 6 months from which they recover and will not have a recurrence is a good bet for a repeat year and course completion. A student who has had a severe depressive episode does not offer the same guarantees, especially if the root cause of the episode is not being addressed or has only just started to be addressed. 

    Educating is about profit, reputation and success rates. 

    Now, whilst I can see the RAs offered were of little use, I’m not sure what they could offer as an alternative. A repeat year is clearly the option but you’re not a good bet from their perspective and it’s equally easy to see why they might be waiting to see how your health progresses in the interim. It’s also fair to say that if the study wasn’t done most universities would expect you to take steps to do the study as soon as you were well enough and may want to see evidence if that rather than just throw you into another year of lectures etc.

    As to whether in this constitutes discrimination under EA 10? I think it’s by no means clear cut but making a claim on that basis may sadly be the only way you get their attention in a timely manner. 
  • Chloe_ScopeChloe_Scope Posts: 1,368Member Chatterbox
    Hi @Gatsby81, I would contact your student union as well. If your exam was at the start of the academic year then reasonable adjustment would suggest it to be moved to another slot. However, if it goes well into the summer- and past the 'resubmission' phase then the uni cannot move it. This is because you will need to pass modules to get funding for the next year of university. Without, it would unfortunately be deemed that you cannot progress. The only alternative I can suggest is resitting the whole year. Also, do you have a support plan with the uni? It is possible for them to offer reasonable adjustment in the form of something else (so swapping an exam for an assignment). If you have any other questions then please do not hesitate to be in touch!
  • Sam_ScopeSam_Scope Posts: 7,290Administrator Scope community team
    @melaniethorley can you help at all?
    Scope
    Senior online community officer
  • melaniethorleymelaniethorley Posts: 65Member, Community advisor Talkative

    Hi Gatsby. I cannot add much to this thread as my suggestions have already been provided by other colleagues. Definitely student centre and student union. You might also want to contact Disability Rights UK. It is likely that your university does not accept existing conditions for extenuating circumstances - most universities have this policy.

     https://www.disabilityrightsuk.org/

    My university is in the process of changing this policy as it is discriminatory for those of us who have fluctuating conditions, including myself

  • Gatsby81Gatsby81 Posts: 3Member Listener

    Hi,


    Thank you for the responses and sorry for not replying in a timely manner. I’ll reply to these posts in chronological order.


    I will enquire about a disability centre but all my discussions so far have been with student support. Every time I contact them I am told I will hear back within 2-3 days and then I end up phoning them again a week later. I should have had a reply in early July and have been chasing it roughly every week since to no avail. I agree, I am looking in to hiring a solicitor to take the case forward. I know that specific performance is unlikely, but damages that I could use at another university would be an option.


    To provide some context, the university in question is the Open University which specialises in part time education. Because of this, you don’t study ‘years’ but rather individual modules instead. To provide a clear timeline of events:


    Sep 2016 - I enroll on the 2 modules in question and complete coursework. I am fine at this stage.

    Feb 2017 - The event that sparks the depression occurs

    June 2017 - I postpone my exams for these two modules. I mention the issues but there is a rule whereby any learner can postpone exams for one year anyway, so it is not an issue. Exams are rescheduled for June 2018.

    Sep 2017 - Dec 2017 Issues become more severe

    January 2018 - I finally see my doctor who diagnosed me with depression and puts me on a high dose of anti depressants. 

    February 2018 - I tell my university and ask what possibilities are there for my exams. I am essentially rebuffed but don’t feel capable of challenging this. They were the first people aside from my doctor that I told and the response hurt.

    May 2018 - I speak to my university and submit and complaint regarding the first response. I am told that the exams will not be altered. I was offered arrangements mentioned, none of which I think are reasonable adjustments (why would a separate room help me?).

    June 2018 - My exams are scheduled, I do not sit them.

    June 2018 - I submit an appeal to the first complaint that I am still yet to have a response to.


    A couple of points from this.. I have been an OU student for some time and have deferred modules for multiple years (usually due to employment reasons) previously and so I do not think there is a ‘considerable cost’ for this to them. They are not a conventional university and deferring a year simply means being enrolled on a different noodle course (there are no additional lectures or classes available to you if you postpone). Secondly, I don’t think ‘prospects of completion’ are a relevant consideration when making a decision under the equality act. I myself work in education, and we make judgements regarding ‘reasonable adjustments’ based on the health information and not whether or not we think they will pass an exam.


    The exam was placed in the summer but again I will reiterate that I have deferred and postponed beforehand at this university for different reasons. It seems arbitrary to me to allow it once or twice only. There is also a resit period the following April (2019 here) for people who sit the exam and fail. In fact, if I had sat the exam and got between 15 and 40% I would have automatically been scheduled for a resit in that period or June 2019 - albeit the final result would have been capped at 40% even if I did well on the second exam. I can’t see a justification as to why someone who scores say 20% deserves another attempt at the exam (albeit capped, but costing exactly the same as one that is not) but I am not? Also regarding funding, I assume the OU has a different funding model compared to a conventional university; but if funding is an issue that could have been mentioned. I am willing to cover additional costs if they are reasonable. In my second complaint I specifically asked them to justify why they thought a resit was not a reasonable adjustment and to provide costings to support their argument. 


    Lastly, just to point out that as per the timeline, this was not an issue when I registered on the module. My doctor has said that from what we have discussed it sounds as if I have gone through similar issues previously even though undiagnosed but the last occurrence of this prior to Feb 2017 was 2012.


    I hope that makes some things clearer. I am starting to get tired of phoning and being told that the person I need to speak to isn’t in or is in a meeting. I’m arguing my case in this message and hope I don’t come across as aggressive but I am really angry with them and feel that looking at court action is they only possibility of a resolution here.


    Thank you for all the replies.

  • mikehughescqmikehughescq Posts: 3,163Member Brian Blessed
    Thanks for the detail. I won’t get into a long discussion on costs but I can say that I am aware there are a number of additional costs related to additional students with the OU having once had a case involving similar arguments. 

    I suspect you’ve missed my point re: reasonable adjustments as you mix up prospects of completion and passing exams. In order for a reasonable adjustment to be reasonable it has to be a means of achieving an end which puts you on a level playing field with others. It’s very hard, and bear in mind I deal with RAs in a daily basis, to see how what you suggest achieves that goal. It’s not about whether you pass exams as such. More that no matter what they offer there is literally no guarantee you will study or complete the modules as that’s essentially influenced by outside factors. You might not think prospects of completion are relevant but in the context of the RA requested they unavoidably have to be. It reads less that you’re asking for RAs and more for an act of generosity. I think the explicit reason they’ve not raised funding though is that it isn’t why they’ve refused. The reason it’s been refused is because it simply wouldn’t achieve the end you suggest. Asking for another opportunity is not an RA.

    Given everything else you’ve described I think it’s also entirely foreseeable they will argue that they’ve already done more than enough. I’m not saying that’s right but most reasonable people would see that counter argument from a mile off. I would guess that absolutely filters into the lack of response from student welfare. At this time of year you are not going to be top of any list for a return call and im a little concerned that you think they would in any event offer a solution. 

    At this point nothing bar a solicitor who specialises in EA 10 is going to help you and I suspect that whilst you may have a claim for damages for procedural breaches there’s nothing doing on the RA front at all. It seems unlikely to pass the threshold for reasonable prospects. 

    Forgive the bluntness. Nothing personal. I am just going on the facts as presented. I fully appreciate the difficulties your health has posed and I hope that improves but, at least in part, you may have to let this go. However, get the legal advice and someone in a better position than myself with access to the documents will be better able to advise.
  • Gatsby81Gatsby81 Posts: 3Member Listener
    edited August 2018
    Can you please link me or give me the case name of previous OU cases? That would be good to read.

    Regarding the second paragraph, it is very difficult to understand your point. I am well aware of the definition of a RA and in my complaint phrased my argument as:

    "My condition has been severe and has been going on for over 12 months. Menial tasks were difficult; and we are discussing studying for 3rd year undergraduate exams. A student who has had a mental illness for the last 12 months is not, can not be, at the same level as a student who is operating 'normally.' However, historically these episodes have lasted 12-18 months and I now feel better, which should enable me to complete an exam on a level playing field at the next earliest opportunity." I have over the last two months come across anecdotal evidence that two students (from UCL and MMU) were allowed to take exams at a later date for similar reasons.

    The argument that there is 'literally no guarantee' could be applied to any RA request - Why offer people extra time in an exam if there is 'literally no guarantee' that they will use it? It makes no sense to me and I don't think completion is an element of the EA. The RA is designed to put the candidate on a level playing field in order to be assessed; its to do with the process of assessment and not the outcome. Its perfectly reasonable to fail a candidate who has had extra time, but it isn't reasonable to refuse extra time on the basis that you don't believe a candidate would use it IF they have medical evidence that suggests they have processing disorders and would need extra time to be on a level playing field.

    Of course I can see that; however, I would also assume that almost all institutions would claim that regardless of the facts of a case anyway. I submitted the complaint at the end of June and, whilst I accept that right now a complaint from a former student may not be a priority, they have had the slowest two months of the year for HE institutions to deal with this. Additionally, the university has a written policy of replying to complaints within 10 working days. I think that such things could form the basis of a contract and as such they are in breach of that contract. Whilst they may not offer a solution - I did offer to agree to independent arbitration of some kind and had hoped they may take this. When solicitors get involved its going to cost them a lot of money. Of course, it could cost me a lot too; but that is somewhat mitigated given that I would presumably only be progressing with a case if it is assessed to be a strong one. I had hoped it would go to someone with some common sense who would see that is not a good option for either party, however it seems nowadays that large institutions play a game of chicken in the hope that most people don't follow up on their claims...
  • mikehughescqmikehughescq Posts: 3,163Member Brian Blessed
    I am unaware of any caselaw. I merely said I’d had a case.

    Reading your posts you’re very keen to compare your case to others. Whilst I understand the impulse I think it’s unhelpful on this instance and if you look at the circumstances you describe in isolation most people would conclude that the response from the OU was potentially within the range of reasonsble responses. 

    My point re: RAs is very simple. There has to be a substantial disadvantage and it has to be one which would be mitigated by the RA. “I now feel better” is not an especially strong argument in this context and “which should enable” also falls short of making a strong case. It is arguably within the range of reasonable responses for them to say that there’s not really much evidence to support the argument that were they to give you your RA you would then complete a module, take an exam etc. not least given your previous history. Your RA may not in fact enable you to do anything. Your analogies are many but they constantly miss the fundamental point that most people get RAs which can be evidenced as enabling them to do something. It’s highly arguable that your suggested RA may not do that at all. Ultimately it’s for a court to decide and so we come back to needing a solicitor and getting that advice quickly as not mitigating your own losses will potentially count against you just as it would for them.

    As regards the complaints process I can only say that there isn’t a hope of that being deemed a contract but, as per my previous post, you may have a case for damages on the basis of procedural breaches. Those damages would be at the low end of the scale and it isn’t going to cost them much to settle so let’s not kid ourselves you currently have any kind of upper hand here. You need to look at a damages claim under EA 10 and get advice on submitting an EA 10 RA claim on an ET1. They put together a response and only if you make a strong case via rebuttal would they move to settle. 
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