Reasonable adjustments versus mitigating circumstances

Short answer

Generally no, not as a substitute for adjustments that should be in place. Where you have a disability within the meaning of the Equality Act 2010, the university has a legal duty to make reasonable adjustments, and it is not good practice for adjustments that could be put in place permanently to be dealt with instead through repeated mitigating (extenuating) circumstances claims. Mitigating circumstances procedures are designed for unexpected, short-term events, not as the ongoing mechanism for managing a known, continuing condition.

The legal position

Under section 91 of the Equality Act 2010, a higher education provider must not discriminate against disabled students, and the duty to make reasonable adjustments applies to it. You are disabled for these purposes if you have a physical or mental impairment that has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities. HIV, cancer and multiple sclerosis are treated as disabilities from diagnosis.

The reasonable adjustments duty is anticipatory and continuing. That means the university is expected to think ahead about the barriers disabled students face and remove or reduce them in advance, rather than reacting case by case each time a barrier causes a problem. It also has three limbs, covering provisions, criteria and practices, physical features, and the provision of auxiliary aids. If a policy or practice puts you at a substantial disadvantage compared with non-disabled students, the university must take reasonable steps to avoid that disadvantage.

Two points matter for your situation. First, adjustments are meant to ensure disabled students are assessed on a level playing field, so that they should not need to make a mitigating circumstances claim at all for disadvantage arising from their disability. Second, requiring you to keep reapplying, when your condition is stable and long-term, is contrary to recognised good practice. The Office of the Independent Adjudicator’s Good Practice Framework says it is not good practice to insist that a student reapplies for the same adjustments every year unless their condition is likely to fluctuate. Adjustments should instead be kept under review, with the student encouraged to report any change or shortfall.

Where mitigating circumstances still have a role

Mitigating circumstances are not entirely irrelevant to disabled students. Even with adjustments in place, a claim may still be appropriate if you experience an acute episode or a worsening of your condition that means the adjustments already in place are no longer sufficient, or where something genuinely unexpected happens. So the two systems are meant to work together: adjustments deal with the ongoing, predictable impact of your condition, and mitigating circumstances cover unexpected flare-ups or events on top of that.

The problem arises where the university uses mitigating circumstances as a replacement for adjustments it should be making permanently. That is the wrong tool for a known, continuing disability, and it can itself amount to a failure to make reasonable adjustments, because it leaves you carrying the burden of repeatedly proving and justifying support you are entitled to have in place as a matter of course. The OIA has also noted that repeated additional consideration requests relating to the same health condition can be a sign that the student is disabled and should trigger the provider to identify and support them properly rather than leaving them to keep applying.

Facts that affect the answer

The outcome turns on some specifics you have not set out, and it is worth being clear about them:

1. Whether you meet the Equality Act definition of disability, and whether the university knows or ought reasonably to know that you are disabled. The duty is generally triggered by actual or constructive knowledge.

2. Whether your condition is stable or genuinely fluctuating. If it fluctuates significantly, some periodic review is legitimate, though even then the university should not make the process unnecessarily burdensome.

3. What supporting evidence you already have, for example a diagnosis, a needs assessment, a Disabled Students’ Allowance study needs assessment, or a report from the university’s disability service. If a needs assessment recommends specific adjustments, the university needs a good reason to refuse them.

4. What adjustment you are actually asking for. Some adjustments, such as extra time in exams, alternative assessment arrangements, deadline flexibility or a study plan, can reasonably be put in place on a standing basis. The reasonableness of any particular step depends on factors such as effectiveness, cost, practicability and academic standards.

Practical next steps

1. Register with the university’s disability or student support service if you have not already, and ask for a formal assessment of your needs. Provide medical or professional evidence of your condition and its impact.

2. Ask the university, in writing, to put in place standing reasonable adjustments under the Equality Act 2010 rather than requiring repeated mitigating circumstances claims. Refer expressly to the anticipatory and continuing nature of the duty and to the OIA Good Practice Framework point that students should not have to reapply for the same adjustments each year where the condition is not fluctuating.

3. Ask for a written Learning Support Plan, Individual Learning Plan or equivalent, so the adjustments are recorded and applied automatically to teaching and assessment.

4. If the university refuses or insists on the mitigating circumstances route, ask for the reasons in writing and use the internal complaints procedure. Frame it as a potential failure to make reasonable adjustments and disability discrimination, not just dissatisfaction with a decision.

5. If the internal complaint does not resolve it, once you have a Completion of Procedures letter you can complain to the Office of the Independent Adjudicator for Higher Education, which is free and can recommend that adjustments be put in place. The OIA cannot make binding findings of unlawful discrimination, but it applies the good practice standards above.

6. Separately, disability discrimination and failure to make reasonable adjustments in higher education can be pursued in the County Court under the Equality Act 2010. There is a strict time limit, generally six months from the act complained of, though the court has discretion to extend and using the OIA route does not automatically stop time running, so keep the deadline in mind. Because of that time pressure and the possibility of a remedy including a declaration and damages, it is worth taking early tailored advice if you are considering that route.

How this could change

If it turns out you do not meet the disability definition, the reasonable adjustments duty does not apply, and mitigating circumstances may genuinely be the correct and only available mechanism. If your condition fluctuates unpredictably, a hybrid approach with some standing adjustments plus mitigating circumstances for acute episodes may be both lawful and sensible. And if the specific adjustment you want would genuinely compromise a core competence standard of the course, the university may be able to justify not providing that particular adjustment, though it would still need to consider alternatives. It would help to know your condition, what you have asked for, what evidence you hold and exactly what the university has said, so the position can be pinned down more precisely.