THE HIGH COURT OF JUSTICE CLAIM NO: ADMINISTRATIVE COURT

IN THE MATTER OF A PROPOSED APPLICATION FOR JUDICIAL REVIEW

BETWEEN:THE QUEEN

on the application of

ZANNA MESSENGER-JONESFirst Claimant

-and-

JOSEPH BELLSecond Claimant

-v-

SECRETARY OF STATE FOR BUSINESS, INNOVATION AND SKILLS

Defendant

_______________________________________________________________

WITNESS STATEMENT OF IAN NOON_______________________________________________________________

I, Ian Noon, Head of Policy and Campaigns at The National Deaf Children’s Society, Ground Floor

South, Castle House, 37- 45 Paul Street, London, EC2A 4LS, will say as follows:

1. I make this statement on behalf of The National Deaf Children’s Society (NDCS) in support of the

claimants’ application for judicial review in relation to the changes to Disabled Students Allowance

contained in the Draft Guidance for 2015/16 and the Education (Student Support) (Amendment)

Regulations 2014 (the “2014 Regulations”). The National Deaf Children’s Society has significant

concerns about these changes and the process by which they were adopted, which are set out

below.

2. The main purpose of my role at NDCS is to effect change in external policy, practice and public

opinion for the benefit of deaf children and young people across the UK in a range of ways

including: provision of policy advice within NDCS, to parents and professionals; commissioning

and carrying out research; and supporting NDCS’s campaign activity. I have worked in this role

for approximately three years and have worked in the disability sector for the past seven. I am

also profoundly deaf myself and, as a graduate, have personal experience of some of the

challenges faced by deaf students at university.

3. Unless otherwise stated, the facts and matters referred to in the statement are within my own

knowledge derived from my professional experience and are true to the best of my knowledge,

information and belief. Where they are not within my knowledge, the source of my information is

identified.1

The National Deaf Children’s Society (“NDCS”)

4. NDCS is the UK’s leading charity dedicated to creating a world without barriers for every deaf

child and young person. We support deaf children from birth until they reach independence. Our

support for deaf young people into independence, and the professionals working with them, gives

us an insight into the processes and challenges encountered during the transition into, and

continued study in Higher Education.

NDCS’ concerns about the proposed changes to DSA

5. DSA is a non-repayable grant which is used to provide a personalised support package for

disabled students in Higher Education Institutions. It is intended to pay for the extra costs incurred

as a result of the disability. It cannot be used for disability-related costs which would exist even if

the young person was not a student. NDCS estimates that there are at least 1,500 deaf young

people claiming DSA at any one time.

6. Deafness is not a learning disability. We believe that most deaf young people, providing they

receive the right support, should be able to achieve the same outcomes as other young people.

We have high expectations for deaf young people and believe they should have the opportunity to

realise the same aspirations as other young people.

7. DSA helps deaf young people who wish to go to higher education realise those aspirations. It

serves to widen participation and reduce the number of barriers to higher education faced by

young people with a disability; it provides the reassurance and a powerful message that higher

education is an accessible and achievable pathway for disabled young people, and thereby

significantly improves their future prospects.

8. Research by University of Edinburgh (commissioned by NDCS) in October 20131 found that

disabled students, including those who are deaf, report encountering a range of barriers within

higher education, including (but not restricted to) restricted social networks and academic

pressure due to inaccessible learning materials. Those students who do not receive DSA have

higher drop-out rates than disabled students in receipt of DSA and their non-disabled peers.

9. This research also demonstrated that the employment status of disabled people is strongly

associated with their level of education. The employment rates of university graduates who are

deaf are similar to those of non-disabled graduates. This shows that, with proper access to higher

education, deaf graduates are able to achieve the same employment outcomes as non-disabled

people.

10. NDCS does not have exact details regarding the number of deaf students currently in receipt of

DSA, and therefore how many are likely to be affected. We have seen a written answer from Mr

1 The University of Edinburgh (October 2013) “Post-school transitions of people who are deaf or hard of hearing”: www.docs.hss.ed.ac.uk/education/creid/Reports/30iii_NDCS_PostSchTransit_FinalRpt.pdf

2

Willetts MP dated 12 June 2014 stating that 530 new deaf/partial hearing applicants were

assessed as eligible for DSA in the academic year 2012/13. However, it is difficult to ascertain

more accurate figures as the government either does not monitor or publish data. The information

available from the Student Loans Company only reflects the point of application, does not

necessarily reflect the number of applications and does not necessarily correspond to the number

of students who were actually awarded and paid DSA. This lack of data suggests that the

Defendant is unable to quantify the impact of changes to DSA on deaf students.

11. An Equality Challenge Unit report2 reveals that disabled students in receipt of DSA support are

more likely to achieve a first or upper second class degree, as compared to disabled students not

in receipt of DSA. This comparison shows just how important DSA is in empowering disabled

students to reach their full potential. A survey undertaken by Randstad (a provider of support to

disabled students) in December 2014 demonstrated that more than a quarter of disabled students

questioned would not have attended university without DSA, and over 40% said they would be

more likely to drop-out without it. A copy of this report is exhibited at IN1.

12. NDCS is therefore concerned that any proposed changes to DSA should be done in a way that

will not restrict access to higher education for deaf young people, nor thereby restrict their access

to social opportunity, development of independence skills, and future career prospects. NDCS

believes that the Defendant’s failure to adequately consult on these changes has meant that their

practical implications, and their consequences for deaf young people, have not been considered.

In particular, it is not known whether and to what extent Higher Education Institutions (“HEIs”) can

provide the same support as DSA to disabled students via their duty to make reasonable

adjustments under the Equality Act 2010.

The consultation process

13. A call for evidence took place in March 2013 entitled “A Review of Targeted Support for in Higher

Education Students”. We responded to that call for evidence to put forward our views. However,

there were only 3 questions included within this call for evidence on DSA. Those questions had a

narrow focus on IT equipment. There was no indication that BIS intended to make the wider

changes to DSA, including to how this additional technological support would in future be

provided, that were later announced on 7 April 2014.

14. When the first Written Ministerial Statement (“WMS”) was published on 7 April 2014, we were

quite shocked that such massive changes were being proposed.

2 Equality Challenge Unit (January 2012), “Evidencing equality: approaches to increasing disclosure and take-up of disabled students’ allowance”: www.ecu.ac.uk/publications/evidencing-equality-approaches-to-increasing-disclosure-and-take-up-of-disabled-students-allowance/

3

The WMS said the changes would apply to students commencing a programme of study on or

after 1 September 2015. It said nothing about how to provide comments in response to the

proposals, nor was NDCS contacted by the Defendant about opportunities to give our views.

15. We wrote to BIS on 15 April 2014 to express our concern about the proposals and stating that we

would like to meet with BIS to discuss our concerns. A copy of this letter is exhibited to this

statement at IN2. In a reply from Mr Willets MP dated 6 May 2014, it was stated that “Action on

Hearing Loss is being invited to these meetings and you may wish to raise these issues with

them.” A copy of this letter is exhibited to this statement at IN3. The implication was that only

selected organisations would have the direct opportunity to respond to the proposals.

16. We are not aware of any published information on how BIS decided which organisations to invite

directly to give views, but it is clear that only a narrow group of organisations were invited to

participate in the process. We understand a list was created in May 2014 and that more

organisations could be added. We understand there were 26 “routine stakeholders” and a further

22 “additional stakeholders”, 11 of which (including the NDCS) had to ask the Defendant to be

consulted. We believe that there is a good chance that we may never have had the opportunity to

participate in the process had we not written to Mr Willets on 6 May 2014.

17. We heard nothing more until we received by email on 15 May 2014 an invitation to attend a

meeting with BIS on 28 May 2014. The scope of this meeting was limited to discussing “the

guidance which will support the changes set out in David Willets’ WMS”. Besides an agenda, no

papers were circulated in advance. The email invitation and agenda are exhibited to this

statement at IN4. Limited information was provided during the meeting and civil servants were

unable to answer a number of key questions. From the civil servant’s perspective, it seemed that

the purpose of the meeting was for organisations to advise BIS what “reasonable adjustments”

universities should be making rather than for stakeholders to give a view on the proposals

themselves and the central question of whether they should be adopted.

18. We were not provided with any clear information about exactly what the proposals were beyond

the information set out in the WMS. In particular, we were not provided with information on how

the new scheme would work, what support would remain available to disabled students and how

they would access that support, when the changes would be implemented, and what the reasons

were for the changes. We did not feel we were being asked our views on the merits of the

proposed changes and were not presented with any alternatives. Without this information, we

could not give our view even if we had been provided with the opportunity. In fact, the proposals

were discussed as though the decision had already been taken. The only matters under

discussion were how to implement the changes, rather than to discuss our views on whether the

changes should be made at all.

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19. The meeting was intended to last for 2 hours. We did not feel this was an adequate amount of

time. In the event, the meeting was cut short to about 1 hour and 30 minutes due to a double

booking of rooms. There were about 8 other stakeholders there and, in the limited time available,

we did not feel NDCS had adequate time to give views. The minutes by BIS of this meeting

(which are only just over 2 pages long) were provided by email on 18 June 2014 and are

exhibited to this statement at IN5.

20. Over the course of the summer, we were not invited to any other meetings with the Defendant’s

officials on these changes. As a result, we felt unsure about how to provide our views. We were

also uncertain whether submitting views would have any impact. This was because it was unclear

if a decision on the changes had already been made or not. The deadlines by which views were

sought were not communicated to NDCS or, as far as we aware, to the public. An email from a

BIS civil servant of 29 May 2014 informed us that we had an opportunity to “provide relevant

evidence” for an equality impact assessment and asked that we did this “as soon as possible”. An

assessment of the impact of the proposed changes was not provided at this time which meant

that NDCS did not have anything to respond to. A copy of this email is exhibited to this statement

at IN6. At this point it was still not clear to us what the exact proposals were, let alone what

evidence was being sought by BIS for the impact assessment.

21. On 1 July 2014, the Special Educational Consortium (“SEC”) released a statement on behalf of its

members (including NDCS) condemning the changes, criticising the absence of any formal

consultation, and the lack of an adequate impact assessment. SEC called for a clear set of

proposals to be put forward and a full public consultation by conducted. A copy of this public

statement is exhibited at IN7.

22. We responded to BIS’ call for evidence in relation to an impact assessment by email on 2 June

2014, voicing our 6 most pressing concerns and calling for a public consultation and full impact

assessment by conducted. We asked what BIS’ plans were in terms of a consultation, what

deadline is set for responses and if we could share the request for views with third parties. The

response by BIS explained that Regulations would be laid and that Guidance would be shared

before being “fully issued”. We replied, reiterating the need for the Guidance to deal with

problems in persuading a HEI to make a reasonable adjustment and holding them to that

promise. BIS responded, saying that “The intention is for the guidance to be clear on where DSA

will be relevant.” No response was provided to our question on the deadline for giving views or if

we could share the request for views with third parties. A copy of this email chain is exhibited to

this statement at IN8.

23. A further BIS update was circulated on 26 June 2014, attaching a letter from Director of Higher

Education at BIS, Matthew Hilton. A copy of this email and letter is exhibited to this statement at

IN9. In this letter Mr Hilton refers again to the “consultation” and explains that Guidance was

being developed. Again, it appeared to us that only implementation was being considered, and 5

that stakeholders were not actually being invited to respond to the merits of the proposals

themselves before a decision is taken. Again, without a clear idea of what the proposals were, we

could not have adequately responded at this point in any event.

24. Then a debate took place at Westminster Hall on the DSA changes on 2 July 2014. Given our

concerns about the changes, we prepared a briefing for the debate, which is exhibited to this

statement at IN10. During the debate Mr Willetts MP made several comments that led NDCS to

believe that a fair consultation would take place before any final decision is made. He said “We

are consulting, and we will produce guidance that will help make the crucial distinction between

what institutions can legitimately expected to do and where individual funding is required” and

“Once we conclude our consultation meetings, we will be in a position to draft guidance” and

“Stakeholders will have chance to review it and ensure that it is sufficiently clear and

understandable before it goes live” (all quotes on p 17) and “We will, of course, continue to

consult…” (p18). These comments led us to believe that there would be an opportunity for NDCS,

along with other stakeholder organisations and of course current and prospective disabled

students, to receive details about the proposals and to provide intelligent and informed responses

to the proposals before any decision would be taken. It appeared to us that the consultation would

conclude before the Guidance was issued.

25. We also closely followed the written answers to Parliamentary Questions (“PQ”) put to the

Ministers, Mr Willets MP and then Mr Clark MP, throughout the summer of 2014. On a number of

occasions, the Ministers said they were or were going to conduct a consultation. On 12 June

2014, when asked “if he will carry out a public consultation” by Robert Buckland MP, the Minister

stated that “we are currently consulting with a wide range of stakeholders”. A copy of this written

answer is exhibited to this statement at IN11. In a separate written answer in September 2014,

the Minister again stated that “the Government is consulting stakeholders about the proposed

changes.” In these responses, the Minister referred to on-going discussions and consultation,

which led us to believe that the open and public consultation was yet to come. Though MPs asked

about a ‘public’ consultation, there was no statement provided in the response that it was the

Defendant’s intention not to carry out a public consultation. We waited for an announcement

about how and when the public consultation would take place so that we could participate in it.

26. On 10 July 2014, we received a further BIS update providing a document entitled “Policy updates

to DSA for 2015/16 entry”. In this the changes are very briefly summarised, including the changes

in relation to NMH, computers, travel costs, specialist accommodation, etc. Again, it appeared

that a decision had already been taken and that only implementation was being considered in the

Guidance: “The Government has been engaging with HE sector specialists, student organisations

and disability charities and listening to their views before developing the details of how these

changes will be implemented.” A copy of this email and letter is exhibited to this statement at

IN12.

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27. We understand that a meeting took place between Mr Willets MP and other groups on 14 July

2014. We were disappointed not to be invited given that we had clearly indicated our interest and

concerns in this area. This again suggested to us that not all interested parties were being

provided with the same opportunity to provide their views. Afterwards we received an update from

SEC suggesting that the changes would be delayed to enable a consultation to take place. This

was good news to us because nothing done so far amounted to a proper consultation as far we

were concerned. There were a series of emails exchanged between us and our charity contacts

where we agreed there was now a cause for optimism.

28. On 12 September 2014, the second Written Ministerial Statement was published. On reading this,

it was clear to us that a decision had been taken to press ahead with the changes without further

consultation. However, the statement did not make it clear exactly what had been decided. It

appeared to us that a decision had been made in relation to NMH.

29. The WMS said the changes would apply to students commencing a programme of study on or

after 1 September 2015 – except in relation to NMH. It said nothing about any further opportunity

to comment on these changes.

30. On the same day as the second WMS was released, SEC made a further public statement. A

copy of this statement is exhibited at IN13. This statement shows just how confused all the

stakeholders were about the decision making process by the defendant. SEC clearly believed that

the defendant had stated it “no longer intends to make significant changes to DSA in this

academic year” and that a decision had been made “to delay reforms to DSA and its commitment

to fully consult on any changes which may be made in future.” We remained extremely confused

about whether a decision had been taken or not and in relation to which proposals, and whether

there would be a full public consultation.

31. Following this, the 2014 Regulations were laid before Parliament on 16 October 2014. We

understood that these Regulations implemented the decision about students meeting the first

£200 of the cost of a standard computer. We did not realise there were other changes made by

the Regulations, such as the introduction of a discretionary power.

32. On 17 October 2014, we received a BIS update which provided a link to the Regulations and the

Draft Guidance for 2015/16. In no way did we understand at this time that this was intended to be

a consultation on the Draft Guidance. The email said “To ensure that the guidance is as helpful to

institutions as possible, we would welcome any suggestions you may have on clarity, or specific

case studies you think it would be useful to include.” This email did not invite comments on the

substance of the Draft Guidance. A copy of this email is exhibited at IN14. NDCS had not been

provided with a copy of the Draft Guidance before it was published online, and so this was the

first time we had access to it.

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33. The Draft Guidance was published on 17 October 2014 on the Student Finance England website

(http://www.practitioners.slc.co.uk/about-us/practitioners-news/bis-1516-dsa-draft-guidance.aspx).

This web page said that changes are being made to DSA for 2015/16 and provided a link to the

Guidance. It also said “Stakeholders who wish to provide case studies for inclusion in the

document or who wish to indicate areas where further clarification is needed should respond to

disabledstudentsallowances@bis.gsi.gov.uk”. A print out of this web page is exhibited at IN15.

Again, we did not understand this to mean that there was a proper consultation in relation to the

Draft Guidance. It is clear from this sentence that the Defendant was not seeking our views on the

substance of the Draft Guidance, and in particular it was not clear that the contents of the Draft

Guidance were still only proposals and a final decision had not yet been made. No deadline was

given for responses and no other instructions provided. We understand that the Defendant says it

amended this web page on 12 December 2014 to provide for a deadline for responses by 9

January 2015 – but this page was not brought to our attention and we did not have sight of it.

34. The Draft Guidance was also published the same day on the Student Loans Company website

(http://www.slc.co.uk/stakeholders-partners/latest-news/student-finance-england-draft-dsa-

guidance.aspx). This web page provided a link to the Draft Guidance and stated that the

Guidance explains the background and scope for DSA funding for 2015/16. Again, it did not say

anything at all about a consultation. A print out of this web page is exhibited at IN16.

35. It is our experience that government consultations are clearly labelled as such and included on

the gov.uk website in the relevant consultations section for the Department that has issued the

consultation. We can find no reference to a further consultation on DSA on this website. In

addition, on the Student Finance England website, we can find no specific section where

consultation documents are stored.

36. We remained extremely confused about what changes were being made, what decisions had

been taken, what consultation, if any, had occurred or would be conducted in the future, and

when the changes would come into effect.

37. For example, we only learned in early December 2014 during the course of the pre-action

correspondence between the Claimants’ legal advisers and the Defendant that no decision has

actually been made in relation to NMH. This contradicted our understanding and we would not

have understood the correct position had we not been shown letters from the Defendant to the

Claimants’ solicitors. It appeared clear to us that a decision had been made to reduce DSA for

NMH except where students’ support needs are considered “complex”. While we are glad to hear

that no decision has been taken, this information has not been made public by the defendant.

There is also a lot of information still out there that seems to suggest a decision has been made,

which is very misleading. For example, in an update on the Student Loans Company website

dated 13 November 2014, it states that changes to NMH “are scheduled for implementation from

academic year 2016/17”, which implies that a final decision has in fact been made 8

(http://www.slc.co.uk/stakeholders-partners/latest-news/proposed-changes-to-dsas-in-england-

ay-201516-and-ay-201617.aspx). Directly beneath this is a subtitle “Other ideas being

considered” which refers to bulk buying and streamlining as under consideration. If no decision

has been made on changes to NMH, it should have been referred to as an “idea being

considered”. No doubt, other stakeholders and disabled students remain very unclear as to what

is now being proposed. A print out of this web page is exhibited at IN17. Also, on 19 November

2014 the Minister provided a written answer put to him by Kate Green MP, stating that

“Discussions continue on the implementation of the changes announced on 12 September” (my

emphasis). This clearly suggests that only the implementation of the decision is being consulted

on and not the substance of the proposals. A copy of this written answer is exhibited at IN18. All

this confusion is exacerbated by the failure to have a proper consultation document setting out

precisely what is intended to change and when in relation to DSA.

38. On 19 December 2014, the NDCS received another BIS email update (dated 18 December 2014).

A copy of this email is exhibited at IN19. This summarised 4 main changes for 2015/16:

a. That disabled students are to meet the first £200 of the cost of a standard computer;

b. DSA for higher specification / higher cost computers will only be made available where

the need arises solely as a result of the student’s disability;

c. Peripheral computer equipment, books and consumables will no longer be routinely

funded by DSA; and

d. DSA will only be available for the cost of specialist accommodation if not provided by

the HEI (e.g. halls of residence).

39. In that same email update, a link was provided the Draft Guidance and it says “We would

welcome your comments by Friday 9th January. The intention is to publish the final guidance

early in the New Year.” The email stated that “some aspects of DSA funding will be changing”.

There was no reference in the email to any of these changes being subject to consultation or any

comments on the Draft Guidance. This again created uncertainty over the scope of any

consultation.

40. More detailed instructions were not published about the consultation on the Draft Guidance until

the Student Finance England website was updated on Christmas Eve, 24 December 2014

(http://www.practitioners.slc.co.uk/products/disabled-students'-allowances/dsas-updates-for-

practitioners.aspx). The updated page then provides brief instructions to provide comments,

suggestions, and case studies on the contents of the Guidance and says responses are due by

14 January 2015. But still, there is no consultation document setting out what the proposals are,

what is and what is not proposed to change, let alone providing an explanation as to why the

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changes are being proposed and what the other available options are. A print out of this web

page is exhibited at IN20.

41. We were not aware that this page had changed until we received a BIS email update on 5

January 2015. This explained “We have made some amends to the website, including to provide

further clarity as to the aspects of the draft guidance on which feedback is being sought” and that

the deadline had been extended to 14 January 2015. A copy of this email is exhibited at IN21.

42. Therefore, we first had sight of instructions as to how to respond to the consultation on 5 January

2015, which is only 8 working days before the consultation closed on 14 January 2015. This is

simply not enough time to provide a proper response to the proposals contained in the Draft

Guidance, which is 78 pages long. Nor does it leave adequate time for us to seek views from our

members, deaf students or practitioners on the Draft Guidance. Although the Draft Guidance was

available online from 17 October 2014, it was in no way clear that the contents were the subject of

consultation. Also, this period falls over the Christmas holidays and so many stakeholders will not

have been able to provide a response.

43. It remains unclear to us about what in the Draft Guidance we are supposed to respond to – for

example, it includes information about all the changes to be made to DSA for NMH in 2016/17 in

a way that suggests that decisions on this have already been made. This is even though the Draft

Guidance is actually for 2015/16. This is contradictory and added to our confusion about the

subject of the consultation. It wasn’t clear to us whether we were supposed to comment on the

proposals to change NMH or whether there will be a separate consultation on this in the future.

Also, there is not sufficient detail contained in the Draft Guidance. Many of our questions are

unanswered, such as: what will prevent a student falling between the cracks if an HEI refuses to

make a reasonable adjustment, but DSA is not available? What if the HEI initially refuses, and the

student then has to challenge that decision – what support will be put in place in the interim so

that the student does not fall behind in his/her studies?

44. On detailed scrutiny of the Draft Guidance, we also found that section 9, which outlines how

appeals will be handled is not yet complete. For example, page 65, in relation to cases where it is

unclear if DSA can be funded, it states that “These cases are known as exceptions and a formal

process for dealing with them will be put in place [details to be confirmed in due course and

flowchart]”. Page 68 also states that “Disputes between institutions and SFE on the provision of

reasonable adjustments vs DSAs to be confirmed.” NDCS is therefore still unable to give an

informed view on this key aspect of the changes.

45. Critically, we note that the only way a person or organisation would know about the consultation

on the Draft Guidance would be if they were on BIS’ list of recipients for its email updates. It

appears that no effort has been made by the defendant to publicise the consultation more widely

and it is not, as far as we can see, listed as a consultation on gov.uk website. Indeed, the

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consultation is not described as such on the website and the word ‘consultation’ is not used. We

believe that it is unlikely that a member of the public or disabled students in particular would ever

know about it.

46. Despite all of these flaws to the process, we responded to this consultation to the best of our

ability on 13 January 2015. A copy is exhibited to this statement at IN22.

NDCS’ concerns about the reasonable adjustments argument

47. NDCS has no objection to the principle that HEIs have to fulfil their duties to make reasonable

adjustments providing that there are sufficient safeguards in place. Our concerns relate to the

hurried nature of these changes, the lack of consultation, the consequent lack of understanding

regarding the likely implications, and the absence of sufficient safeguards to ensure that disabled

students will not face new barriers to higher education. Below we set out the primary areas of our

concern.

Uncertainty:

48. We understand that under the Equality Act 2010 HEIs are only required to make “reasonable”

adjustments, reasonableness being subject to consideration of “the cost, and your organisation’s

resources and size”.3 This means that any reliance on the duty to make reasonable adjustments

will introduce inconsistency between HEIs. The position in relation to support for disabled

students will move from one where they will receive the support they need if they are eligible for

DSA, to one where DSA is restricted for non-specialist, non-medical help and the student will

have to rely on the conditional duties of HEIs to make reasonable adjustments. A student cannot

be certain at the time he/she is making an application what support will be in place at that HEI,

and some HEIs may be better-placed to fulfil needs compared with others. We consider it unfair

and discriminatory that a deaf young person’s university choice will be determined by an HEI’s

ability to provide the necessary support, rather than by the student’s choice and his/her academic

accomplishment. Any inconsistency in support between HEIs represents a barrier to the

opportunity to succeed and fulfil potential.

49. We also feel the onus on establishing what reasonable adjustments a HEI will make rests

unreasonably with the disabled student. The Draft Guidance establishes no new duty on HEIs to

be transparent about what support they will provide. This uncertainty is likely to cause anxiety

among some disabled students about which HEI they should apply to at a time where they may

need to focus on completing their A Level exams.

50. Separately, the process by which it is agreed between Student Finance England, the disabled

student and the HEI what support will be provided and by whom remains unclear. It is not clear to

3 Further and Higher Education Providers’ Guidance published by the Equality and Human Rights Commission: www.equalityhumanrights.com/advice-and-guidance/further-and-higher-education-providers-guidance

11

us that the HEI is required at any point to confirm what support it will provide.

Funding:

51. Universities have not been given any extra funding to discharge their increased responsibility to

make reasonable adjustments. We understand that the funding currently available to HEIs is not

ring-fenced for the purpose of supporting disabled students.

Means of redress:

52. In the situations where HEIs do not consider it ‘reasonable’ to provide support, or if the support

provided is of an inadequate standard, it is not clear what means of redress would be available to

the student or if those means of redress will be adequate. NDCS is concerned that existing

processes, such as complaining to the HEI, referring the complaint to the Office of the

Independent Adjudicator, or issuing County Court proceedings, will not provide sufficient or timely

remedies. We note that, in response to written question by Kate Green MP in October 2014 about

the number of appeals heard by the Office, Mr Clark stated that “The Office of the Independent

Adjudicator for Higher Education does not publish this data.” It is unclear if this is because the

Office does not collate this data. In any event, we feel this raises serious questions about the

capacity or the readiness of the Office to hear further appeals. In addition, in our view it is unlikely

that many deaf young people would want to take legal action to enforce their rights at the risk of

damaging their relationship with the HEI. There is a lack of clarity in the proposals on the means

students will have to challenge a refusal of a reasonable adjustment.

53. We note that a deaf student aged 19 to 25 in college may have an Education, Health and Care

Plan, a legal document setting out their right to support. These students have access to a SEN

and Disability Tribunal to make appeals relating to disability discrimination. It strikes us an

anomalous and unfair that a deaf student in Higher Education has weaker means of redress than

other deaf students, simply because they have chosen Higher Education as a path.

Effect on disability friendly HEIs:

54. NDCS is also concerned about HEIs that have more deaf students than average because they

have developed a reputation for being able to meet the needs of deaf students. The financial

burden incurred by these HEIs following the proposed changes are likely to be greater than in

other HEIs that are not as disability friendly. This may put at risk their ability to provide this

specialist support to deaf students and affect what adjustments are considered “reasonable”. The

effect will be retrogressive: there will be a perverse incentive for HEIs to become less disability

friendly environments so that they do not attract disabled students who will inevitably cost them

more money. NDCS believes HEIs should be incentivised rather than discouraged from attracting

deaf students to attend their institutions.

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Bureaucratic burden:

55. Making the transition from school to university can be a tumultuous, and sometimes stressful,

period for any young person, but particularly for a young person with disabilities. We are

concerned that by splitting the responsibility for provision of support between DSA and the HEI

this will generate additional stress and a bureaucratic burden for disabled applicants which will not

be faced by non-disabled applicants. This is likely to be exacerbated by the loosely defined terms

of HEIs’ new responsibilities.

Preparedness of HEIs:

56. We also have concerns about the preparedness of HEIs to discharge these duties – particularly

for deaf students. We feel that the Defendant has assumed that all HEIs have a good

understanding of the needs of disabled students. Disabled students are a heterogeneous

population. Even between deaf students, there are significant differences in terms of, for example,

their mode of communication, what hearing technology they use and their levels of language. In

addition, deafness is a low-incidence disability and its specific support needs are therefore not

widely understood. A case study from University of Edinburgh research4 highlights this issue.

Although the following case study (“Isla”) is from Scotland, we believe it illustrates some of the

risks involved in relying on HEIs to provide appropriate support, and the need for clear means of

redress if changes to DSA are made in England:

a. In the summer, as soon as Isla was accepted at the HEI, she had a meeting with a

disability advisor at the HEI to discuss what support she would require in order to

study. In October she contacted the Disability Office once more to ask about support.

She was told that the paperwork was being processed. During the following three

months she had no communication support and no adjustments were made for her.

She arrived early for lectures and asked tutors to wear the loop system microphone,

but found that microphones rarely worked or tutors forgot to use them. In a laboratory

session she asked to be allowed to sit at the front so she lipread, but the tutor was not

supportive: “She said to me, ‘well you just have to sit through it for this tutorial, this

lab, but for the next time I’ll have you down the front’. Next time I went in, still hadn’t

changed it. I was raging. I was like really angry.” As time went by, Isla realised that

she was missing out most of the content of her course. She dropped out at Christmas,

just before she was due to hand in her first assignments.

b. Isla reported that: “We had a couple of big papers coming up. I had started them. I

had no idea where I was going with it. I e-mailed my tutor and said, ‘look I’m not

coming back. I can’t hear anybody so I can’t. He said, ‘I’m sorry to hear that’. That

4 The University of Edinburgh (October 2013) “Post-school transitions of people who are deaf or hard of hearing”: www.docs.hss.ed.ac.uk/education/creid/Reports/30iii_NDCS_PostSchTransit_FinalRpt.pdf

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was it! I think I cried for days.” After she dropped out of university her father wrote a

letter to the Disability Office listing their complaints. The Disability Office responded in

writing: “We got two letters back. One telling my dad that they need written consent

for him to contact the University on behalf of me, although I had signed the bottom of

the letter along with my dad! I think that constitutes written consent. The other one I

got back was an eight page letter simplifying all the points that I had pointed out to

them as to what they had done wrong, accusing me of being a liar! Saying that I had

never been up to speak to them.” There was no other contact between the young

person or her parents and the university.

57. This case study shows what can happen if an HEI fails to make reasonable adjustments for deaf

students in a timely manner: it can result in the deaf student failing their class and quitting

university altogether. We believe that it is likely HEIs will not be prepared to provide the support

that deaf students require before the changes are is due to be implemented because not all HEIs

understand the needs of deaf students. Isla’s experience could become the typical one for deaf

students as a result.

58. Although HEIs are already subject to the duty to make reasonable adjustments, these changes to

DSA (such as restricting funding for assistive technology and specialist equipment) will, in

practice, create new responsibilities for HEIs. The Draft Guidance acknowledges this “increased

responsibility” (page 7). HEIs have not had to provide this support before and so they do not have

experience necessary to conduct an assessment as to the cost implications of providing the

support. We believe HEIs will therefore struggle to even quantify the amount it will cost them to

meet these new responsibilities.

NDCS’ concerns about the consultation process

59. We have significant concerns in relation to how the consultation process took place, which are set

out in more detail below. Frankly, we believe the whole decision making process has been

incredibly unclear and as a result has been almost impossible to follow – even for charities such

as NDCS which has significant experience and knowledge in this area.

60. The whole process undertaken by the Defendant since April 2014 has been extremely confusing.

We have constantly struggled to determine what is in fact being proposed. We reasonably

expected any consultation to be a public consultation, engaging disabled students and setting out

enough information about the proposals to enable us to adequately respond and assess the

impact on disabled students. We expected to have explained to us what other options were

available, why BIS is favouring its current proposals, and allow us to respond as to whether these

cuts should go ahead at all not just on how they should take place. At no point has a concise

policy document been provided to us setting out what the exact proposals were. Instead we have

followed what we consider to have been a very unclear process which has obscured what is being

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proposed and when. We did not in any way appreciate that the Draft Guidance was supposed to

be open to a proper consultation when it was published on 17 October 2014 and the consultation

that is now being conducted is not adequate, for the reasons set out below.

No consultation on whether to change DSA at all and why the Defendant is making these changes:

61. NDCS has not been asked to comment on other ways of making the proposed savings without

reducing the entitlement to DSA and has not been made aware that there was any alternative to

the proposals that had been put forward. NDCS has not been asked to comment on the need to

make savings at all. As has been the case throughout this process, the proposals have been put

to us as though the decision had already been taken to go ahead with them. The Defendant

should have put all the options to us, including the option of not making any changes. There must

have been alternatives that the Defendant considered and rejected before it decided to go ahead

with the proposed changes to DSA.

62. We wish to comment on those alternatives, because it may be that we would support alternative

proposals to make savings or “modernise” DSA that are different from those we are being

consulted about. We have not been provided with any information about what other options were

considered by the defendant and the reasons for discarding them. This remains the case for the

consultation about the Draft Guidance: alternatives to the proposals have not been presented to

us, including the proposal to not make these changes for 2015/16 at all.

63. The effect of the failure to consult on alternatives is that the proposals in the Draft Guidance

appear to be the only available option and the decision to make these changes has already been

made.

Rushed nature of the consultation:

64. NDCS expected a full written, public and accessible consultation. BIS led us to believe that a

proper consultation would take place by the constant references to consultation, including in

Parliament. We believe that some of the Ministers’ responses to PQs were ambiguous about how

the consultation was being carried out and created uncertainty about what opportunities there

would be to respond. As we have set out above, the consultation (such as it was) in the summer

of 2014 was rushed and we were not able to fully engage in the process. We had only one

opportunity to meet with BIS and that meeting was cut short and we were not able to fully express

our view.

65. As explained above, we were only provided with 8 working days from the point the more detailed

instructions were brought to our attention on 5 January 2015 to provide a response to the

consultation. This was simply not enough time for all stakeholders to provide a considered

response. Nor did it give us sufficient time to seek views from our members, deaf students or

practitioners working with them.

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Lack of sufficient detail:

66. Notwithstanding that have not been consulted on whether to make the changes at all, we also do

not believe that we have been provided with sufficient information about the changes, the

practical implications, and how BIS proposed to address these in order to provide an informed

view or response to the proposals. Areas where we do not have enough detail include:

a. How the DSA assessment process would work in the new system. For example,

how it would be agreed what would fall to the HEI to fund and what would still be

funded by DSA and what process is in place to ensure that there is no gap and no

delay in support being provided.

b. How it would be ensured that disabled students would be provided with support of

sufficient quality.

c. What means of redress disabled students would have if they are unable to obtain

DSA and/or their HEIs refuses to provide the support they need and whether these

means of redress were sufficiently rigorous.

d. What information would be provided to students on the changes and on the

reasonable adjustments they should expect from HEIs in advance of any

application.

e. Whether the proposals would introduce any new bureaucratic burdens on disabled

students.

f. The readiness of HEIs for these changes.

g. What process will be in place for the Defendant to consider exceptional cases,

where DSA remains available to students in exceptional circumstances.

67. We feel that we need answers to the above questions before we can give an informed view on the

proposals contained in the Draft Guidance. We also feel that BIS cannot display that it has

properly considered the negative impact of the changes on disabled students in the absence of

this information.

Accessibility of the consultation

68. This consultation on the Draft Guidance is online only. It is obvious that, in order to engage with

groups representing all different kinds of disabilities, other formats should also be used.

69. The manner in which the consultation is being conducted, by publishing a 78 page document

online together with a brief description of the kinds of comments being sought, is not accessible to

most people. Unless you had significant background knowledge of this area, you would not

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understand what was being changed, what was staying the same, and why the proposals are

being put forward. I doubt that many, if any, disabled teenagers would be able to follow these

online instructions, read the draft guidance, and provide a considered response to the

consultation.

No consultation with disabled students:

70. Even if the proposals were set out clearly, and the consultation process had been accessible and

easy to follow, and enough time had been provided for responses, we do not believe the scope of

the consultation was adequate. Essentially, the only people who even know about the

consultation are organisations who have approached the Defendant asking to be involved or have

been approached by the Defendant to attend private meetings. We still do not know why some

representative organisations were picked to be included as a “stakeholder” and not others.

71. It would have been virtually impossible for a member of the public to follow the decision making

process from April 2014 to date. The consultation on the Draft Guidance was published online,

but the only effort the Defendant made to publicise the consultation was by sharing the link with

the stakeholders via BIS email updates. An interested member of the public would never have

known to check the Student Loans Company website for a live consultation on changes to DSA,

let alone continue to check it when it has been updated. Given that the instructions for the

consultation were not published online until 24 December 2014, a member of the public would

have had to constantly check that website for changes to enable them to respond and would have

needed to have done so over the Christmas holiday period to obtain the necessary information.

This is completely unrealistic.

72. We also consider that, even if deaf students had been aware of the Draft Guidance and the

Written Ministerial Statements, they may have been discouraged from responding because of the

uncertainty over what was being consulted on. The absence of a public consultation document

with clear consultation questions and deadline adds to this uncertainty. We feel that the

impression has been given on several occasions that a decision has already been made. As a

result, we are concerned that many deaf student may have felt that there is no point in giving their

views.

73. To the best of our knowledge, the Defendant is not directly consulting deaf students and in the

past conducted only one meeting with disabled students at Birkbeck College. We believe that the

Defendant should directly consult deaf and disabled students on the proposed changes given that

this is the demographic that will be directly affected by the changes. In this regard, both

prospective students who would be affected by the changes and current students who could

comment on the importance of DSA should be consulted.

74. As a charity, we work with deaf children and young adults, but do not claim able to represent all

their views nor can we, for example, speak to all disabled students to establish the weight of 17

feeling about these proposals – that is one of the purposes of a proper consultation. Whilst we

could have sought views from our members, we could not carry out such an exercise without

sufficient warning, a clear deadline and clarity over the scope of the consultation. Inviting NDCS

to attend one meeting, and inviting us by email to respond to the consultation online in the belated

way I set out above, does not amount to a consultation with deaf students. The Defendant

absolutely should speak to disabled students directly about their proposals and consider their

views. At no point has the Defendant sought our views over how this could be achieved. It is

completely inappropriate for the Defendant to press ahead with such significant changes to DSA

without consulting disabled students.

75. The changes contained in the Draft Guidance will certainly affect deaf students in particular

because they relate to specialist accommodation and assistive technology, on which deaf

students rely.

76. NDCS has been granted some indication of the sense of injustice already felt by disabled

students at the lack of consultation with them. An email received by NDCS from a 17 year old

deaf young person (who is profoundly deaf and wears one cochlear implant) expressed: “I'm

preparing to look around universities and see what is available such as the DSA. I am very fearful

of going to University if the Government cut the Disability Student Allowance. It's absolutely

absurd...what can we do...just lose out on other things that are vital to our education? I don't think

so...! As I am a student who would like to move away to explore more opportunities, if the DSA is

to be abolished then I know I will struggle because I will need a note taker during my lectures and

when in accommodation I would use my DSA on getting visual fire alarms and important gadgets.

As I don't receive the PIP finding the money will be difficult to get into Uni, as a result of this it

looks as if I will have to reconsider my future options if this is to happen...!”

77. Disabled students such as this one have not been invited to respond to the consultation. If she

had been invited, she could put her views to the Defendant to seek to persuade the government

not to go ahead with the changes. Disabled students are being denied that opportunity.

No consultation about the reasonable adjustments argument:

78. We have not been consulted about the Defendant’s position that HEIs can provide the support

DSA currently funds by fulfilling their duty under the Equality Act 2010 to make reasonable

adjustments. We have experience supporting deaf young people who request reasonable

adjustments and could provide some insight into the flaws of this position.

HEIs were not adequately consulted:

79. NDCS are not aware of many HEIs being consulted about the reasonable adjustments duty so

that they can comment on whether it will work in practice. This appears to reflect the hurried

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nature of these proposals, and demonstrates that the Defendant will not have enough information

about when HEIs will and won’t consider it reasonable to provide support.

80. We have seen the list of HEIs the Defendant met with over the summer (by letter to the

Claimants’ lawyers dated 12 November 2014) which includes: De Montford University, Liverpool

Institute for the Performing Arts, University of Kent, Birkbeck College, Durham University, Bolton

University, Sheffield University, Newcastle University, Sheffield Halam University, and Edinburgh

University. Of these, only the Liverpool Institute for the Performing Arts is named on page 21 of

the Defendant’s Equality Assessment as being among the top 25 HEIs with the largest proportion

of full-time undergraduate students claiming DSA. NDCS has seen no evidence that the

defendant is consulting with HEIs such as Falmouth University, which has 30.2% of full-time

undergraduate students in receipt of DSA. Without hearing the views from all HEIs, and in

particular the HEIs named on page 21, the Defendant will not know whether HEIs have the

capacity to make adjustments in the way they suggest or otherwise have their views on the

proposals

In summary:

81. We believe the consultation process is deeply flawed and the Defendant cannot be in a position to

say with confidence how these changes will affect deaf and disabled students. Further, without

consulting disabled students, the defendant cannot fully understand the nature of their support

needs and how they will be affected by the changes. Without consulting on alternatives to the

proposals and why they are rejected, the defendant will not be in a position to evaluate the

viability of possible alternative options. The consultation on the Draft Guidance does not provide

the limited stakeholders alerted to the consultation with sufficient time or information to provide a

considered response.

Regulation 40A

82. We only came to understand in December 2014 that the new Regulation 40A has introduced a

discretionary power for the Secretary of State to grant DSA. This had to be explained to us by the

Claimants’ solicitors because at no point has the introduction of the discretionary power by

inserting Regulation 40A been explained to us by BIS. NDCS still does not understand why this

was done or how it has changed the status quo.

83. We have not been consulted in any way about the discretionary power introduced by Regulation

40A. We were not given any notice that the defendant intended to introduce a discretionary power

before the 2014 Regulations were laid. We would have wanted to know what the intention behind

Regulation 40A was, and how the introduction of a discretionary power would change the DSA

scheme to enable us to comment on this change. If there was any chance that the introduction of

Regulation 40A would be detrimental to disabled students, we would certainly have wanted to

provide the Defendant with our views.19

NDCS’ concerns about the impact of the proposals on deaf students

84. In a written answer to Mr Bain MP on 6 November 2014, the Minister said “The Government does

not believe that these changes will affect rates of entry by disabled students to higher education,

as the necessary support will continue to be provided.” A copy of this written answer is exhibited

at IN23. We do not agree with this statement. Even with the support of DSA, university presents

significant challenges to a deaf young person, and it is not a commonly pursued route for deaf

young people. The proposed changes threaten to increase these challenges, and in doing so may

serve as a disincentive for deaf young people to apply to higher education courses. As explained

above, DSA increases the likelihood of a first or upper second class degree and reduces the

drop-out rate of disabled students. If the changes to DSA proceed, then if deaf young people do

still apply for higher education, it is likely that they will have poorer attainment and/or completion

rates. Members of the UK Deaf Student Union have described to us how they are

“wholeheartedly… against any changes as we feel that deaf individuals will be at a disadvantage

compared to their hearing peers. Without the aid of non-medical help such as a note-taker, they

will not be able to access their courses fully. If faced with this prospect, their confidence will drop

and in turn they will be hesitant to consider higher education as a future option. It is a daunting

realisation, especially the way the economy is right now.”

Conclusion

85. As a charity dedicated to supporting to deaf young people, we expected to see a full public

consultation conducted by the defendant on DSA. We do not consider the current consultation is

being conducted fairly: the proposals are unclear, lack sufficient detail, the consultation is

completely inaccessible to most people, is being rushed, and is not widely publicised. Deaf

students are not being directly consulted at all. It is not clear to us whether HEIs are being

consulted. The entire decision making process, from April 2014 to date, has been obscure and

almost impossible to follow. We consider ourselves experts in this field and have involved

ourselves as much as possible in this process – yet we have been constantly uncertain as to what

is being proposed and what is expected of us as a stakeholder. We have been unable to discern

what proposals are being made and what decisions are being made and when. This has made it

impossible for us to provide a considered response to the proposals.

86. As set out in this statement, we have serious concerns about the changes to DSA and the impact

on disabled students, but have still not been provided with an adequate opportunity to put these

views to the defendant. We consider the Defendant’s consultation process to have been wholly

inadequate for such important changes and we invite the Defendant to agree to run a proper,

public consultation on the changes. If the Defendant does not agree to this we hope the Court will

grant the Claimants relief to secure a proper consultation prior to the implementation of these

changes to DSA.

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Statement of truth:

I believe that the facts stated in this Statement are true.

Signed: _______________________________

Ian Noon

Dated:

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