The admissibility of disadvantage compensation for mental and chronic somatic illnesses is controversial. Empirical findings show that universities take a differentiated approach to the actual granting of compensation for disadvantages due to mental illness. Voices in the legal literature support this approach. The case law to date denies admissibility. In the end, each Examination Board must decide on its own responsibility.
Individual consultation
Here you will find an overview of contact points that offer individual consultation.
Access and admission to studies
The Student Advisory Service offers information on general questions regarding application, admission requirements, aptitude tests and admission procedures, among other things. The Student Office advises on all administrative matters for admission to studies, including applying for hardship or disadvantage compensation and the required evidence.
Advanced training
The Commissioner for Handicapped and Chronically Ill Students organizes regular staff training courses on compensation for disadvantages. Further information can be found in the staff training database.
Conflicts and solutions
The contact for study offices, teaching staff and Examination Committees in the case of complex (guidance) cases is the Commissioner for Handicapped and Chronically Ill Students.
Mental and chronic somatic illnesses
Differentiating between impediments to performance and performance weaknesses is above all difficult with regard to chronic somatic diseases and disorders and also particularly challenging in the area of mental diseases and disorders. Examples of such illnesses include allergies, asthma, diabetes, epilepsy and rheumatism. In addition, also other chronic diseases or the treatment of such diseases can also lead to concentration difficulties among students and thus impair their ‘mental activity’.
- Examples
Students with anxiety disorders may experience mental blocks or slowing of thought processes. Concentration difficulties experienced by students may, for example, be caused by chronic diseases (e.g. atopic dermatitis with constant itching), the effects of a treatment (e.g. as a result of chemotherapy) or medication (e.g. in the case of epilepsy or chronic pain syndrome).
Students with impairments at Leipzig University: heterogeneous and often invisible
62.1 % of students with impairments that make it more difficult for them to study have mental illnesses.
Aspects of legal literature and case law
The distinction between obstacles to performance and weaknesses in performance is difficult, when considering mental illnesses and chronic somatic diseases (for example rheumatism, epilepsy, multiple sclerosis or allergies). Previous case law has denied compensation for disadvantages in the case of mental and chronic somatic illnesses. Empirical findings show that universities take a differentiated approach to the actual granting of compensation for disadvantages due to mental illness. Voices in the legal literature support this approach. In the end, each Examination Board must decide on its own responsibility.
Current case law always deems impairments to a student’s ability to concentrate and the speed of their thought processes to be performance weaknesses and therefore generally rejects the idea of entitlement of compensation for disadvantages in this area.
In this instance, case law refers to so-called “persönlichkeitsprägende Dauerleiden” (personality-defining long-term conditions), meaning that the impairment determines the normal performance of the examination candidate. That would be always relevant to the examination in terms of content as a general performance weakness and, as a result, not entitled to compensation for disadvantages.
- Examples
According to this line of argumentation, concentration problems due to anxiety disorders or epilepsy diseases are not entitled to compensation for disadvantages because they conflict with the purpose of the examination (working speed and stress resistance) and will also not be able to be compensated for in the candidate’s future occupation.
When making this statement, case law particularly refers to the current occupational profile or occupation for which the candidate can qualify by passing the examination. Case law also assumes that impairments that have a negative impact on a candidate’s stress resistance and working speed will normally not be able to be compensated for in their work in their future occupation. Based on this perspective, granting compensation for disadvantages would represent overcompensation and therefore violate the requirement to provide equal opportunities stipulated in Article 3 (1) of the Constitution (Grundgesetz). (intranet link: guide, p. 11 ff.)
- Please note
As an example representing further expert opinions and published opinions, the information below presents the line of argumentation of a legal opinion on the topic of “Nachteilsausgleiche für Studierende mit Behinderungen − Prüfungsrechtliche Bausteine einer inklusiven Hochschule” (Compensation for Disadvantages for Students with Disabilities – Components of Examination Regulations for an Inclusive University) from 2019. It must be noted that this view currently represents a clear minority opinion in legal literature. To what extent this view will also be incorporated into case law in the future remains to be seen.
According to the line of argumentation of the legal opinion, impairments to a student’s “ability to think” cannot be classified as performance weaknesses that are not entitled to compensation for disadvantages across the board. The legal opinion states that current case law is disproportionate and misconceives the guidelines of the UN Convention on the Rights of Persons with Disabilities. It goes on to explain that the Convention specifies no explicit requirements or prohibitions for granting compensation for disadvantages. Compensation for disadvantages can therefore only be rejected when absolutely necessary. On the basis of this perspective, any other approach would represent prohibited discrimination within the definition of the UN Convention on the Rights of Persons with Disabilities.
Accordingly, a case-by-case consideration must always be made. In particular, the respective purpose of the examination and the specific disadvantage must be taken into account. If the examination is related to an profession, the requirements of the profession and subsequent compensation possibilities must also be included in the determination of the purpose of the examination. Guidance is provided, for example, by Section 164 (4) SGB IX. If the purpose of the examination as determined in this way necessarily conflicts with the compensation for disadvantages, the compensation may be denied.
- Example
In an individual case, the fact that a lacking ability to concentrate as a result of ADHS or epilepsy can be compensated for by a working environment that supports concentrations in at least some areas of a candidate’s career must be considered.
If this line of argumentation is pursued, it leads to a number of different constellations of performance weaknesses and impediments to performance. The following examples are designed to briefly explain the approach taken in the legal opinion. (intranet link: guide, p. 13 ff.)
Universities grant the disadvantage compensation
Although only 23 % of students with mental diseases and disorders actually apply for compensation for disadvantages, the approval rate is therefore 66 %.
Case constellations of the literature
If this line of argumentation is pursued, it leads to a number of different constellations of performance weaknesses and impediments to performance. The presentation of the constellation examples mirrors the corresponding presentation of the legal opinion (Ennuschat (2019), p. 106, only available in german language) to a large extent.
According to the line of argumentation of the legal opinion, both the examination purpose and the compensation options in the candidate’s future occupation must be identified and considered with a differentiated approach in each individual case. When considering cases with such a differentiated approach, impairments to a student’s ability to concentrate or the speed of their thought processes can partly be classified as impediments to performance.
- Please note
It must be noted that this view currently represents a clear minority opinion in legal literature. To what extent this view will also be incorporated into case law in the future remains to be seen.
The examination candidate has a sufficient mental capacity but is unable to access their skills and knowledge due to a mental block caused by an anxiety disorder (for example due to a fear of examinations).
If the mental block coincidentally also occurs during examinations (for example a fear of heights if the examination is held in a room on a high floor), the examination purpose is not compromised if the compensation for disadvantages is allowing the candidate to sit the examination in a room on the ground floor.
The examination candidate has a sufficient mental capacity but is unable to access their skills and knowledge due to a mental block caused by an anxiety disorder (for example due to a fear of examinations).
So-called test anxiety (an isolated fear of examinations diagnosed as a physiological condition) only affects examinations and therefore provides virtually no indications with regard to the candidate’s suitability for their future occupation. Compensation for disadvantages in the form of a separate room or additional breaks (but no extension of the examination duration!) may help the candidate to calm down. Initial approaches in case law tend to pursue this line of argumentation. Given that stretching breaks are also comparably granted to candidates with severe back problems, the risk of overcompensation is low.
The examination candidate has a sufficient mental capacity but is unable to access their skills and knowledge due to a mental block caused by an anxiety disorder (for example due to a fear of examinations).
These disorders affect both examinations and other situations in life. If the examination is designed to determine the candidate’s ability to work under pressure in their future occupation, this view may be convincing in the case of psychologists, other health professionals, lawyers or teachers and no compensation for disadvantages can be granted.
If the candidate’s future occupation does, however, involve areas of activity with potential compensation measures or the candidate’s ability to work under pressure and stress resistance play no role whatsoever in the main content of their future occupation, the granting of compensation for disadvantages may be possible.
The examination candidate has a sufficient mental capacity but experiences a slowing of thought processes due to a disability or medication. If the slowing of thought processes is caused directly by the medication, skipping medication may be harmful to a candidate’s health. Compensation for disadvantages is therefore frequently granted in practice in such cases.
If the examination purpose as defined by the examination regulations explicitly states that candidates must complete tasks correctly within a limited period, for example, the temporal component plays an essential role in the examination purpose. In many cases (especially those involving written examinations in the subject of law), there is a high risk of overcompensation because additional time would lead to better results. In such cases, compensation for disadvantages can be rejected.
The examination candidate has a sufficient mental capacity but is unable to concentratefor extended periods of time due to a disability or mediation. This definition refers to the limited ability to concentrate for extended periods of time due to a disability or diagnosed as a physiological condition that goes beyond the lapses in concentration of healthy students. According to case law, back problems, for example, are deemed to be an impediment to performance. Breaks in which candidates can recover their ability to perform in examinations are a recognised form of compensation for disadvantages in such cases. The possibility of granting breaks in which candidates can recover their ability to perform in examinations when unable to concentrate for extended periods of time is therefore not necessarily excluded.
The examination candidate has a sufficient mental capacity but their ability to concentrate is impaired by a disability (they are easily distracted, for example due to ADHS, atopic dermatitis with constant itching, epilepsy, thyroid disease or psychological illness with compulsive behaviour or compulsive thoughts). If compensation for disadvantages may be possible in the candidate’s future occupation, for example by means of a working environment with few stimuli (individual office, etc.), compensation for disadvantages in the form of a separate room or a privacy screen may come into consideration.