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Duty of care to university students: Important Supreme Court decision

This case highlights the importance of working to the ‘anticipatory duty’ by designing assessments inclusively.

In the high-profile case of University of Bristol v Abrahart, the High Court upheld the findings of Bristol County Court that the higher education provider had failed in its duty to make reasonable adjustments under Equality Act 2010 to accommodate a student’s mental health struggles.

However, the University did not have a general duty of care in civil law to prevent students from coming to harm. This part of the claim was novel and, if a general duty of care had been found to exist, would have set a new and onerous precedent for all higher education institutions. 

What happened?

This case concerned the tragic death by suicide in April 2018 of twenty-year-old student Natasha Abrahart, who was studying an MSC degree programme in Physics at the University of Bristol. Natasha struggled with depression and a social anxiety disorder (and was a disabled person for the purposes of Equality Act 2010).

She performed very well in her first year, but encountered difficulties in her second year, which involved ‘laboratory conference’ modules (interview assessments where students were required to verbally answer questions about their recent lab-based research). These assessments took place in a lecture theatre environment, in front of a large audience of tutors and peers, which Natasha found extremely distressing due to her social anxiety. Her mental health declined severely, and she died by suicide on the day one such assessment was due to take place.

Her parents brought a claim of disability discrimination against the University, comprising allegations that the University had failed to make ‘reasonable adjustments’ and had treated Natasha unfavourably as a result of something arising from her disability (under s15 Equality Act 2010). They also brought a claim of negligence (the first of its kind in the UK).

Disability Discrimination

The County Court upheld both disability discrimination claims.

It found that the University was aware of Natasha’s mental health issues by October 2017 at the latest (around 6 months before her death). Around that time, she had taken part in an interview assessment in which she failed to speak at all and had been visibly distressed. Academic staff had also been made aware of her history of self-harm (although the extent of their knowledge was unclear).

Despite being aware of the link between the presentation requirement and Natasha’s poor mental health, the University failed to make reasonable adjustments by offering her an alternative means of assessment.

The duty to make reasonable adjustments in a higher education context does not apply to ‘anything done in connection with the content of the curriculum’ and the University argued that the requirement was an essential ‘competency standard’ integral to the course content. The County Court disagreed, holding that the legal exception did not include the format of the assessment. The interview could have been conducted under different conditions (for example in front of tutors only) or a written assessment method could have been used. For example, written questions could have been provided in advance, or a contemporaneous written method adopted, such as e-mail, texting or WhatsApp.

Natasha had been ‘treated unfavourably’ for the purposes of s15 Equality Act 2010 as the University had marked down her interview assessment and imposed additional ‘penalty marks’.  

No general duty of care

However, by contrast, the family’s negligence claim did not succeed. To establish negligence, the County Court had to accept firstly that the University owed a general duty of care to Natasha; secondly, that it had breached that duty; and lastly that the breach of duty causes her harm.

The claim failed at the first hurdle. No general duty of care by a university towards a student existed in statute or had been established by any previous cases. The County Court found that students are not under the ‘care and control’ of a university. In providing higher education services to students, a university does not ‘assume responsibility’ for them (in the way that a school is responsible for its pupils) or in any way remove the student’s personal agency (for example, as a prison might assume control of an inmate). Negligence cases usually arise where one of these relationships, or a very similar dynamic, exists.

The County Court held that it was not fair or reasonable to impose a duty of care in negligence on to universities when students were separately protected by Equality Act 2010.

The High Court decision

The High Court did not consider any fresh evidence. Its role was solely to review the County Court decision and determine whether the law had been applied correctly. Ultimately, it agreed with the Court of Appeal’s decision in all respects.

It upheld the finding that the University did not owe a general duty of care in negligence towards Natasha. Interestingly however, it went on to say that, had a duty of care existed, the University would have breached it in this case.

In relation to the reasonable adjustments claim, the High Court took a nuanced approach. It made clear that it might be reasonable to take steps to reduce the disadvantage faced by a student, even if that disadvantage cannot be eradicated altogether.

The decision explores a university’s ‘anticipatory duty’ to make adjustments through developing inclusive practices and identifying barriers to learning. The High Court explained that, in this context, there is no specific requirement that a university knew, or ought to have known, about a student’s disability to be liable for a failure to make adjustments. However, in this case, the fact that the University of Bristol did know about Natasha’s mental health struggles was relevant to an assessment of whether they had acted reasonably.

Similarly, there is no requirement that a student must have requested specific adjustments at the time for a university to be liable. However, if the student has made such a request, this will again be relevant to the issue of ‘reasonableness’.

Like the County Court, the High Court disagreed with the University’s assertion that the interview assessment requirement was an essential ‘competency standard’ for Natasha’s course. It found that the purpose of the ‘laboratory conference’ was to test the students’ knowledge and understanding of their lab work, not specifically to assess their ability to speak in front of an audience. It was not convinced that the answers required could not have been elicited in a different way that was less distressing for Natasha.

What does this mean for universities?

From a legal standpoint, it will come as a relief to higher education providers that no general duty of care in negligence towards students was found to exist. Such a duty would have been extremely difficult to navigate and to get to grips with effectively.

However, the most interesting and useful aspects of this decision relate to the duty to make reasonable adjustments, especially in relation to ‘competency standards’. To comply with the duty, it is important to distinguish the standard being assessed from the method of assessment. To accommodate disabled students, the standard does not have to change, but changes may be required to the assessment method. Drawing this distinction may be more difficult in some cases than others, and in some situations may feel impossible. However, it remains important to carry out this exercise and to think as creatively as possible.

This case highlights the importance of working to the ‘anticipatory duty’ by designing assessments inclusively, and thinking through in advance any adjustments that might potentially be requested. Information about adjustments should be provided to staff and students so all involved in assessments are aware of the support available.

There is also a warning here about relying too heavily on internal policies and procedures. The High Court held that the University of Bristol’s internal processes were not cogent reasons for their failure to make reasonable adjustments. Internal processes are guidelines only, and consideration should be given to flexing them if the law requires.

From a safeguarding perspective, most universities now have standalone safeguarding policies, but these differ widely in their focus and scope. This case is a prompt to think about whether the concept of safeguarding in universities should be broadened to include mental health, and whether any changes to safeguarding policy or practice may be required.

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