Preliminary key statements on the legal situation (Module 3)

The legal basis for students with disabilities is broad. Different legal frameworks exist:

1. international legal framework of inclusive higher education:

The UN Convention on the Rights of Persons with Disabilities (UN CRPD), ratified by Germany in 2009, represents a paradigm shift in disability policy. A person with an "impairment" only becomes "disabled" through interaction with environmental barriers.
As public corporations, state universities are directly bound by the UN CRPD and must implement its requirements.
Significant principles (guiding goals) of the Convention are non-discrimination (Art. 3 lit. b UN CRPD) and accessibility (Art. 3 lit. f UN CRPD).
Persons with disabilities have a right to non-discriminatory and inclusive education and to equal access to higher education (Art. 24 UN CRPD).
Two tools for implementation are accessibility and reasonable accommodation. According to Art. 9 UN CRPD, the States Parties are obliged to proactively design all areas of life in such a way that people with disabilities can also participate in them. This also applies to higher education and concerns not only spatial design but also study and examination conditions. If certain areas are not (yet) accessible to individuals without barriers, reasonable accommodations must be made.

Reasonable accommodation is part of the prohibition of discrimination (Art. 5 para. 2 UNCRPD). This expresses that a disadvantage can not only come about through active measures, but also through an omission.
The right to inclusive education and reasonable accommodation are also components of European human rights protection through the case law of the European Court of Human Rights (ECtHR). Reasonable accommodation is to be provided by the contracting states. The prohibition of discrimination according to Art. 14 ECHR is to be interpreted in the sense of the UN CRPD.

2. Constitutional framework:

There is no explicit right to education in the Basic Law and in the Hessian Constitution, however, Art. 12 para. 1 p.1 GG covers essential parts of the right to education.
Art. 3 para. 3 p. 2 GG prohibits any discrimination on the basis of disability and is considered an important constitutional standard for the non-discriminatory participation of persons with disabilities in higher education. In addition to the defensive dimension, Article 3 (3) sentence 2 of the Basic Law also includes a mandate to the state to work towards the equal participation of persons with disabilities.
From art. 3 exp. 3 p. 2 GG is derived as well as the existence of a requirement on disadvantage compensations.
Only the design of the compensation for disadvantages is at the discretion of the examination authorities, but not the question of whether compensation for disadvantages is granted at all. Disability-related disadvantages must be adequately compensated for in examinations.

3. University and examination law framework:

Includes internal university regulations as well as those at the federal (Higher Education Framework Act) and state (State Higher Education Act) levels.
Regulatory powers have rested with the individual states since 2006.
At the state level, there are only a few regulations for students with disabilities. Since 2021, the Hessian Higher Education Act explicitly includes accessibility, integration and inclusion as goals of higher education institutions.
The regulations under higher education law regarding compensation for disadvantages are central for students. According to § 25 para. 3 p. 1 Hessian Higher Education Act (HessHG), examination regulations must provide for disadvantage compensation for students who, due to their disability or illness, cannot participate in the actual form of examination or can only do so with difficulty. Students with disabilities should be able to participate equally in their studies.
Criticism of the previous administrative law case law on compensation for disadvantages, since, among other things, students with non-visible impairments are disadvantaged. The case law of the Federal Administrative Court (BVerwG) from 1985 is taken up, according to which a "personality-related permanent condition" cannot be compensated and is therefore not accessible to any compensation for disadvantages. In some cases, the courts assume that mental illnesses in particular restrict performance. Compensation for disadvantages can only be considered if only the presentation of performance is restricted.

4. Disability Equality Act (BGG):

The universities of the federal states are bound by the state disability equality laws.
The Hessian Disability Equality Act (HessBGG) aims to eliminate and prevent discrimination against persons with disabilities and to promote, protect and ensure the full, effective and equal participation of persons with disabilities in life in society and to enable them to lead a self-determined life, in compliance with the general principles of the UN CRPD (§ 1 p. 1 HessBGG).
In order to achieve these goals, the HessBGG includes a prohibition of discrimination (§ 9 para. 2 HessBGG) and obliges the creation of accessibility. The concept of discrimination is to be understood in the sense of the UNCRPD. Therefore, the denial of reasonable accommodation is also a disadvantage (§ 4 para. 1 No. 3 HessBGG).
According to literature, the required accessibility at universities is not yet a matter of course. There are implementation deficits in areas such as IT. Sign language interpreters are not available everywhere and require a long lead time for appointments.

5. services for participation:

SGB IX also provides for rehabilitation and participation benefits for students with disabilities. In addition to benefits that are intended to support the completion of studies, there are also a variety of benefits that cover accompanying needs in everyday life (e.g. benefits for medical rehabilitation or benefits for social participation).
Benefits for participation in education are usually provided by the providers of integration assistance (§ 6 para. 1 no. 7 SGB IX).
If the final integration into the labor market is the goal of the study, the Federal Employment Agency (BA) is primarily responsible according to case law. Assistance services during studies are not specified other aids to promote participation in working life (§ 49 para. 3 no. 7 SGB IX).
The BA has a different view in this regard and sees the priority of other rehabilitation agencies in the context of benefits for participation in education. A legal clarification and the creation of legal certainty is desirable here.
Conflicts of responsibility must not be carried out at the expense of the students. § Section 16 of Book IX of the Social Code provides for the possibility of subsequent reimbursement in the event that a rehabilitation provider provides services even though it is not actually responsible.
Aids are primarily provided by the health insurance funds as medical rehabilitation benefits if the aid serves to compensate for the disability in the overall daily life of the person with disabilities ("basic need of daily living").

6. securing subsistence during studies:

Students with chronic illnesses and disabilities may be entitled to BAföG, just like other students. The decisive factor is primarily the income and asset situation of the student, the spouse or partner and the parents (§ 11 para. 2 to 4 in conjunction with §§ 21 ff. BAföG).
In BAföG, disability-related additional needs are not taken into account, unlike in SGB II (citizens' allowance) and SGB XII (social assistance).
"Top-up" SGB II benefits are generally excluded for students (§ 7 para. 5 SGB II) and are only considered in the cases specified in § 27 para. 2 and 3 SGB II.
If the studies are interrupted due to illness, if the student takes a leave of absence or studies part-time, he/she is entitled to a citizen's allowance if the corresponding requirements (§ 7 Abs. 1 SGB II) are met, in particular if he/she is in need of assistance.

7. health promotion and prevention:

According to § 3 Abs. 5 S. 7 HessHG, the universities promote the sporting and cultural interests of their members and participate in the social promotion of students in close cooperation with the student unions. From this, a legal mandate of the universities can be indirectly derived to provide corresponding offers for prevention and health promotion.
Measures for health promotion and prevention at universities are funded by the health insurance funds as services for health promotion and prevention in living environments (§ 20a SGB V) or for workplace health promotion (§ 20b SGB V).

8 Conclusion

The wide-ranging legal situation for students with disabilities becomes clear, which is often difficult for those affected to keep track of.
Students are dependent on competent advice in order to gain the diverse knowledge and possibilities.
Group-related standards, e.g. for compensation of disadvantages, should be further developed.

The complete publication by C. Janßen (2022) - "Studying with health impairments and disabilities: legal framework and selected legal problems" can be found under the heading "Presentations and publications".