In a nutshell:
A diagnosed test anxiety as well as a recurrent depressive disorder do not meet the requirements for the granting of a disadvantage compensation in terms of § 12 para. 5 PO. For this reason, the applicant is to be denied compensation for disadvantages, in the form of an individual examination instead of a group examination. Impairment can only justify withdrawal from the exam due to “inability to take the exam.” According to established case law, limitations of mental capacity due to permanent illnesses are generally not compensable.
The applicant, a medical student, seeks interim legal protection for the granting of compensation for disadvantages in accordance with Section 10, Para. 5 PO. Taking an oral group exam in the subject “Anatomy”, together with fellow students, was not possible due to her diagnosed test anxiety and was the trigger for various symptomatology. These include increased flight instincts, heart palpitations, and thought blocks and “black outs.” Under such conditions, he said, performance review is not possible. She applied to the respondent for the granting of a disadvantage compensation pursuant to Section 10 para. 5 PO for the group oral examination, submitting all medical certificates. The respondent refused to grant a disadvantage compensation, in the form of an individual examination. The applicant is appealing against this decision in the interlocutory proceedings. The administrative court rejected the request. The plaintiff has now filed an appeal against this decision.
The OVG Lüneburg dismissed the applicant’s appeal. (Decision of July 29, 2020, Ref.: 2 ME 312/20)
The court states that the medical conditions presented by the applicant do not lead to a disadvantage compensation according to § 10 para. 5 PO entitle. The personal limitations presented are those that affect the performance per se. However, according to the meaning and purpose of the norm, the granting of compensation for a disadvantage due to a disability is precisely to ensure equality of opportunity (Art. 3 I GG) if, in the case of fundamental ability, only the possibility of representation has to be adapted to the ability. Here, however, the court assumes that the applicant’s medical conditions already impair her performance and that for this reason the provision for compensation for disadvantages cannot be used.
The certificate submitted by the applicant does not meet the requirements for the granting of compensation for a disadvantage. It only confirmed the clinical pictures, but not any physical or mental disability. The applicant’s previous successful group examinations also speak against such an assumption. It is not clear that the shape of the group exam makes it difficult to present/demonstrate their knowledge.
What can readers take away:
The granting of a disadvantage compensation serves to compensate the representation of the basically existing capability. However, it does not apply to compensation for reduced/restricted performance due to the disability. The personal issues that promote an inability to take an examination are not a disability and are therefore not subject to the disadvantage compensation entitlement within the meaning of § 12 para. 5 PO.
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