Search Legislation

The Special Educational Needs and Disability (Northern Ireland) Order 2005

 Help about what version

What Version

 Help about advanced features

Advanced Features

Changes over time for: CHAPTER III

 Help about opening options

Changes to legislation:

There are outstanding changes not yet made by the legislation.gov.uk editorial team to The Special Educational Needs and Disability (Northern Ireland) Order 2005. Any changes that have already been made by the team appear in the content and are referenced with annotations. Help about Changes to Legislation

Close

Changes to Legislation

Revised legislation carried on this site may not be fully up to date. Changes and effects are recorded by our editorial team in lists which can be found in the ‘Changes to Legislation’ area. Where those effects have yet to be applied to the text of the legislation by the editorial team they are also listed alongside the legislation in the affected provisions. Use the ‘more’ link to open the changes and effects relevant to the provision you are viewing.

View outstanding changes

Changes and effects yet to be applied to the whole Order associated Parts and Chapters:

Whole provisions yet to be inserted into this Order (including any effects on those provisions):

CHAPTER IIIN.I.GENERAL QUALIFICATIONS BODIES

General qualifications bodies: discrimination and harassmentN.I.

34.—(1) It is unlawful for a general qualifications body to discriminate against a disabled person—

(a)in the arrangements which it makes for the purpose of determining upon whom to confer a relevant qualification;

(b)in the terms on which it is prepared to confer a relevant qualification on him;

(c)by refusing or deliberately omitting to grant any application by him for such a qualification; or

(d)by withdrawing such a qualification from him or varying the terms on which he holds it.

(2) It is also unlawful for a general qualifications body, in relation to a relevant qualification conferred by it, to subject to harassment a disabled person who holds or applies for such a qualification.

(3) In the case of an act which constitutes discrimination by virtue of Article 43, this Article also applies to discrimination against a person who is not disabled.

(4) In this Article and Article 37, “relevant qualification” means an authorisation, qualification, approval or certification of a prescribed description.

(5) But an authorisation, qualification, approval or certification may not be prescribed under paragraph (4) if it is a professional or trade qualification (within the meaning given by section 14A(5) of the 1995 Act).

(6) In this Chapter—

(a)“general qualifications body” means any authority or body which can confer a relevant qualification, but it does not include—

(i)a responsible body (within the meaning of Chapter I or II),

(ii)an education and library board, or

(iii)an authority or body of a prescribed description or in prescribed circumstances;

(b)references (however expressed) to the conferment of a qualification on a person include—

(i)the renewal or extension of a qualification, and

(ii)the authentication of a qualification awarded to him by another person.

Meaning of “discrimination”N.I.

35.—(1) For the purposes of Article 34, a body discriminates against a disabled person if—

(a)for a reason which relates to the disabled person's disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and

(b)it cannot show that the treatment in question is justified.

(2) For the purposes of Article 34, a body also discriminates against a disabled person if it fails to comply with a duty imposed on it by Article 37 in relation to the disabled person.

(3) Treatment, other than the application of a competence standard, is (subject to paragraphs (5) to (7)) justified for the purposes of paragraph (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4) The application by a body of a competence standard to a disabled person is (subject to paragraphs (6) and (7)) justified for the purposes of paragraph (1)(b) if, but only if, the body can show that—

(a)the standard is, or would be, applied equally to persons who do not have his particular disability; and

(b)its application is a proportionate means of achieving a legitimate aim.

(5) If, in a case falling within paragraph (1) other than a case where the treatment is the application of a competence standard, a body is under a duty under Article 37 in relation to the disabled person but fails to comply with that duty, its treatment of that person cannot be justified under paragraph (3) unless it would have been justified even if the body had complied with that duty.

(6) Regulations may make provision, for purposes of this Article, as to circumstances in which treatment is, or as to circumstances in which treatment is not, to be taken to be justified (but see paragraph (7)).

(7) Treatment of a disabled person cannot be justified under paragraph (3), (4) or (6) if it amounts to direct discrimination falling within paragraph (8).

(8) A body directly discriminates against a disabled person if, on the ground of the disabled person's disability, it treats the disabled person less favourably than it treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

(9) In this Article, “competence standard” means an academic, medical or other standard applied by or on behalf of a general qualifications body for the purpose of determining whether or not a person has a particular level of competence or ability.

Meaning of “harassment”N.I.

36.—(1) For the purposes of Article 34, a body subjects a disabled person to harassment where, for a reason which relates to the disabled person's disability, the body engages in unwanted conduct which has the purpose or effect of—

(a)violating the disabled person's dignity; or

(b)creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) Conduct shall be regarded as having the effect referred to in sub-paragraph (a) or (b) of paragraph (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.

General qualifications bodies: duty to make adjustmentsN.I.

37.—(1) Where—

(a)a provision, criterion or practice, other than a competence standard, is applied by or on behalf of a general qualifications body,

(b)it is a provision, criterion or practice for determining on whom a relevant qualification is to be conferred,

(c)a disabled person is, or has notified the body that he may be, an applicant for the conferment of that qualification, and

(d)the provision, criterion or practice places the disabled person at a substantial disadvantage in comparison with persons who are not disabled,

it is the duty of the body to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the provision, criterion or practice having that effect.

(2) Where—

(a)a provision, criterion or practice, other than a competence standard, is applied by or on behalf of a general qualifications body,

(b)it is a provision, criterion or practice other than one for determining on whom a relevant qualification is to be conferred, and

(c)it places a disabled person who—

(i)holds a relevant qualification conferred by the body, or

(ii)applies for a relevant qualification which the body confers,

at a substantial disadvantage in comparison with persons who are not disabled,

it is the duty of the body to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the provision, criterion or practice having that effect.

(3) Where any physical feature of premises occupied by a general qualifications body places a disabled person who—

(a)holds a relevant qualification conferred by the body, or

(b)applies for a relevant qualification which the body confers,

at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the body to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the feature having that effect.

(4) Nothing in paragraph (1), (2) or (3) imposes a duty on a general qualifications body in relation to a disabled person if the body does not know, and could not reasonably be expected to know—

(a)in the case of an applicant or potential applicant for the conferment of a relevant qualification, that the disabled person concerned is, or may be, such an applicant; or

(b)in any case, that that person has a disability and is likely to be affected in the way mentioned in that paragraph.

(5) In this Article—

(a)“provision, criterion or practice” includes (subject to any provision under paragraph (6)(e)) any arrangements;

(b)“competence standard” has the meaning given by Article 35(9).

(6) Regulations may make provision, for purposes of this Article—

(a)as to circumstances in which a provision, criterion or practice is to be taken to have, or as to circumstances in which a provision, criterion or practice is to be taken not to have, the effect mentioned in paragraph (1)(d) or (2)(c);

(b)as to circumstances in which a physical feature is to be taken to have, or as to circumstances in which a physical feature is to be taken not to have, the effect mentioned in paragraph (3);

(c)as to circumstances in which it is, or as to circumstances in which it is not, reasonable for a body to have to take steps of a prescribed description;

(d)as to steps which it is always, or as to steps which it is never, reasonable for a body to have to take;

(e)as to what is, or as to what is not, to be included within the meaning of “provision, criterion or practice”;

(f)as to things which are, or as to things which are not, to be treated as physical features.

(7) This Article imposes duties only for the purpose of determining whether a body has, for the purposes of Article 34, discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.

[F1Enforcement, remedies and proceduresN.I.

37A.(1) A claim by a person—

(a)that a general qualifications body has discriminated against him, or subjected him to harassment, in a way which is unlawful under this Chapter,

(b)that a general qualifications body is by virtue of Article 44 or 45 to be treated as having done so, or

(c)that a person is by virtue of Article 44 to be treated as having done so,

may be made the subject of civil proceedings in the same way as any other claim in tort for breach of statutory duty.

(2) Damages in respect of discrimination in a way which is unlawful under this Chapter may include compensation for injury to feelings whether or not they include compensation under any other head.

(3) Proceedings may be brought only in a county court.

(4) The remedies available in such proceedings are those which are available in the High Court.

(5) The fact that a person who brings proceedings under this Chapter against a general qualifications body may also be entitled to bring proceedings against that body under Part II of the 1995 Act is not to affect proceedings under this Chapter.

(6) Part III of Schedule 2 makes further provision about the enforcement of this Part and about procedure and evidence.]

[F2Alterations to premises occupied under leasesN.I.

37B.(1) This Article applies where—

(a)a general qualifications body occupies premises under a lease;

(b)but for this Article, the general qualifications body would not be entitled to make a particular alteration to the premises; and

(c)the alteration is one which the general qualifications body proposes to make in order to comply with the duty imposed by Article 37(3).

(2) Except to the extent to which it expressly so provides, the lease shall have effect by virtue of this paragraph as if it provided—

(a)for the general qualifications body to be entitled to make the alteration with the written consent of the lessor;

(b)for the general qualifications body to have to make a written application to the lessor for consent if it wishes to make the alteration;

(c)if such an application is made, for the lessor not to withhold his consent unreasonably; and

(d)for the lessor to be entitled to make his consent subject to reasonable conditions.

(3) In this Article and in Schedule 3A—

lease” includes a tenancy, sub-lease or sub-tenancy and an agreement for a lease, tenancy, sub-lease or sub-tenancy;

sub-lease” means any sub-term created out of, or deriving from, a leasehold .interest; and

sub-tenancy” means any tenancy created out of, or deriving from, a superior tenancy.

(4) For the purposes of paragraph (1), the general qualifications body is to be treated as not being entitled to make the alteration, if the terms and conditions of a lease—

(a)impose conditions which are to apply if the general qualifications body alters the premises, or

(b)entitle the lessor to impose conditions when consenting to the general qualification's body altering the premises.

(5) Schedule 3A supplements the provisions of this Article.]

Chapter III: claims, leased premises and certain agreementsN.I.

38.—(1) Regulations may make provision for, or in connection with, the making of a claim by a person—

(a)that a general qualifications body has discriminated against him, or subjected him to harassment, in a way which is unlawful under this Chapter;

(b)that a general qualifications body is by virtue of Article 44 or 45 to be treated as having done so; or

(c)that a person is by virtue of Article 44 to be treated as having done so.

(2) Regulations may, in relation to a case where premises are occupied by a general qualifications body under a lease—

(a)make provision modifying the lease, or make provision for its modification, in connection with the making of alterations to the premises in pursuance of a duty imposed on the body by Article 37;

(b)make provision in connection with the determination of questions that are about the body's compliance with any such duty and are related to the making of alterations to the premises.

(3) Any term in a contract or other agreement made by or on behalf of a general qualifications body is void so far as it purports to—

(a)require a person to do anything which would contravene any provision of, or made under, this Chapter;

(b)exclude or limit the operation of any provision of, or made under, this Chapter; or

(c)prevent any person making a claim of a kind mentioned in paragraph (1).

(4) Regulations may—

(a)make provision for paragraph (3)(b) or (c) not to apply to an agreement settling a claim of a kind mentioned in paragraph (1);

(b)make provision modifying an agreement to which paragraph (3) applies, or make provision for the modification of such an agreement, in order to take account of the effect of that paragraph.

(5) The provision that may be made under paragraph (1), (2) or (4) includes (in particular)—

(a)provision as to the court or tribunal to which a claim, or an application in connection with a modification, may be made;

(b)provision for the determination of claims or matters otherwise than by the bringing of proceedings before a court or tribunal;

(c)provision for a person who is a lessor in relation to a lease under which a general qualifications body occupies premises to be made a party to proceedings;

(d)provision as to remedies;

(e)provision as to procedure;

(f)provision as to appeals;

(g)provision as to time limits;

(h)provision as to evidence;

(i)provision as to costs or expenses.

(6) Provision under paragraph (1), (2) or (4) may take the form of amendments of this Part or the 1995 Act.

(7) Regulations may make provision as to the meaning of “lease” or “lessor” in this Article.

(8) Except as provided in regulations under paragraph (1), no civil or criminal proceedings may be brought against any person in respect of an act merely because the act is unlawful under this Chapter.

(9) Paragraph (8) does not prevent the making of an application for judicial review.

Chapter III: regulationsN.I.

39.—(1) In this Chapter—

  • “prescribed” means prescribed by regulations;

  • “regulations” means regulations made by the Department of Education.

(2) Before making regulations under this Chapter, the Department of Education shall consult such persons as it appears to it to be appropriate to consult, having regard to the substance and effect of the regulations in question.

Back to top

Options/Help

Print Options

Close

Legislation is available in different versions:

Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

Close

See additional information alongside the content

Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.

Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.

Close

Opening Options

Different options to open legislation in order to view more content on screen at once

Close

Explanatory Memorandum

Explanatory Memorandum sets out a brief statement of the purpose of a Northern Ireland Order in Council and provides information about its policy objective and policy implications. They aim to make the Order accessible to readers who are not legally qualified and accompany any Northern Ireland Order in Council made since 2002.

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources
Close

Timeline of Changes

This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.

Close

More Resources

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as made version that was used for the print copy
  • correction slips

Click 'View More' or select 'More Resources' tab for additional information including:

  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • links to related legislation and further information resources