What about us? Advocacy and representation for disabled students
In March 2019 we wrote a briefing about the issues disabled students experience in accessing advocacy and representation when they’re in dispute with their college or university. Almost five years on, very little has changed, and arguably the situation is worse. Not only do students face issues with accessing advocacy, it can be almost impossible for them to get legal advice and representation if they believe they have been discriminated against and want to raise a complaint to the courts.
Lead Scotland runs the only national disabled students’ helpline in Scotland. We take calls from disabled students and their carers related to accessing, participating and progressing in post school learning.
Approximately one third of our calls relate to a dispute between a disabled student and their post school education provider, usually a college or university. When these disputes arise, disabled students have the following options:
1. Make a stage 1 (informal) internal complaint: this involves raising the issue directly to the department involved.
2. Make a stage 2 (formal) complaint: if not satisfied with the outcome of the stage 1 complaint it can be advanced to stage 2. The complaint is then assigned to a complaint officer external to the department involved and a more extensive investigation will take place. This stage could involve meetings, reviewing emails/documents and gathering evidence.
Students can access support and representation with the complaints process from a students’ association representative. However, callers report mixed experience of how effective and useful this can be as student reps are generally student volunteers and most do not have expertise in the Equality Act. NUS Scotland previously confirmed that providing in-depth advice, advocacy and representation for disabled students in dispute with their institution, was out with the remit of student associations.
There is very limited availability for independent advocacy for students as eligibility criteria for most services is restrictive and waiting lists are long. We refer callers to the Scottish Independent Advocacy Alliance or make suggestions of suitable advocacy organisations, but we rarely hear back from callers about how successful this has been.
3. Once the internal complaints procedure has been completed students can elevate their complaint to the Scottish Public Services Ombudsman (SPSO).
The SPSO can look at complaints about colleges and universities if students remain unsatisfied with the outcome of the complaint. However, they will not look at complaints or appeals related to an academic judgement. They can look at how services were provided and whether processes were followed. They cannot determine that an education provider has discriminated against a disabled student under the Equality Act like a court can. The SPSO’s website states they are experiencing a backlog and waiting times are currently 14-16 weeks. We have heard anecdotal reports from previous callers who have had their complaints upheld on multiple occasions by the SPSO where recommendations were made to the relevant college or university, but the recommendations were not implemented. The majority of the SPSO’s cases relate to complaints about health and social care services.
In England and Wales, there is the dedicated Office of the Independent Adjudicator (OIA), set up to review complaints by students about their higher education providers. They produce guidance, toolkits, resources and statistics all related to disabled student complaints.
4. Raise a disability discrimination case to the courts under the Equality Act.
If a disabled student believes they have been subject to disability discrimination under the Equality Act, then they can theoretically raise a complaint to the courts. However, in reality this is almost impossible for most students to do because it is financially prohibitive to pay for a solicitor for advice, assistance and representation for an Equality Act case. Therefore, most people rely on using Scottish Legal Aid. However, we are only aware of one solicitor in Scotland with expertise in this field who are currently taking clients on using legal aid.
There are a number of government funded law centres and public bodies that could again theoretically take on cases, but in reality the conditions under which they will take on a case are very limited, and generally are closed for new referrals due to capacity issues. These options include:
The Equality and Human Rights Commission – they will only take on strategic cases that will result in challenging an untested area of law, or that will benefit a large group of people or meets one of their thematic strategic aims. In nine years, none of my callers have successfully enlisted representation from the EHRC.
Scottish Just Law Centre – funded by Scottish Government for disabled and trans people to challenge discrimination from a Scottish public body. They have been unable to accept any referrals from us in 2024 and have now stopped taking referrals until at least March 2025.
Legal Services Agency – LSA have a Scottish Government funded Disability and Social Justice Project, they have limited capacity but are still open for referrals.
Singh & Co – have confirmed they can take on our cases using Scottish Legal Aid
This whole system of redress and dispute resolution is in contrast to what is available to pupils with additional support needs and their parents when in dispute with their school. There is a funded system of mediation, independent adjudication, education appeal committees and an additional support needs tribunal service with Scottish Government funded legal representation from Govan Law Centre.
However as soon as these disabled young people move on to college or university, those rights and access to justice are stripped away. This leaves disabled students distressed, without support and facing worsening health issues, early withdrawal from courses without completion, not reaching their full potential and facing reduced opportunities and poorer life outcomes. Further information about this is available in our Advocacy Briefing Paper.
