High Court rules university is legally responsible for student suicide without finding duty of care

We have previously reported on the decision of Bristol County Court that discrimination by the University of Bristol contributed to the suicide of a disabled student, Natasha Abrahart (see here). The High Court has recently upheld that decision (see judgment).

Compliance with the Equality Act 2010 (EqA)

The High Court supported the original decision that the University had acted unlawfully under the EqA towards Natasha as a disabled student. It agreed that it had breached its duty to make reasonable adjustments to the way Natasha was assessed, indirectly discriminated against Natasha on the basis of her disability, and treated Natasha unfavourably because of something arising in consequence of her disability. We draw attention to a couple of points which warrant particular attention by universities:

• Competence standard vs assessment method
  
  The EqA contains an anticipatory duty to make reasonable adjustments for disabled students. For universities, this is subject to an important exception: universities are not required to make adjustments to the application of a “competence standard”, which is “an academic, medical or other standard applied for the purpose of determining whether or not a person has a particular level of competence or ability”.
  
  A focus of this case was the oral assessments which Natasha was required to take as part of her physics course. The University argued that oral assessments were “a core competency of a professional scientist” and so not subject to the duty to make reasonable adjustments. This argument failed. The High Court concluded that the County Court had been entitled to find that “the fundamental purpose of the oral assessments was to elicit answers to questions put to the student” and that “such a process does not automatically require face to face oral interaction: there were other ways of achieving this”.
  
  There is therefore a critical distinction between a competence standard (which is exempt from the duty to make reasonable adjustments) and the assessment of that standard (to which the duty to make reasonable adjustments applies). Universities must take reasonable steps to avoid a disadvantage that disabled students face in demonstrating competency as a result of the assessment method. This means that universities should seek to understand which elements of each course constitute valid competence standards or assessment methods, which in turn can facilitate greater certainty for students, academics, and student / disability support services about when reasonable adjustments can and should be made.
  
  
• Processes for disability support
  
  One of the reasons adjustments had not been made for Natasha was because she had not engaged with the University’s processes for obtaining expert advice (in the form of a “Disability Support Summary” setting out support requirements based on a disability adviser's professional judgement and review of evidence from other medical professionals). The University argued that it was reasonable to require expert evidence, which would identify the source of Natasha’s difficulties and make recommendations about the changes which should be made, before taking steps that had the effect of reducing the rigour of the academic assessment.
  
  The County Court rejected this argument and the High Court agreed. There was no obligation on Natasha, at the time, to specify the adjustments which she required. This was the University’s responsibility. Expert evidence would have been helpful but was not of decisive importance. The duty to make reasonable adjustments is concerned with the effect of something on a disabled person, and the University was aware of the effect of oral assessments on Natasha. Moreover, Natasha was unable, for reasons related to her mental health, to engage with the University's processes.
  
  Related to this, it was found that the “problem with the University’s reliance on its own Regulations and policies … was that they are not the law. They were subject to the law, including the requirements of the Equality Act 2010”. It would not necessarily be reasonable for the University to insist that its processes were followed as a prerequisite for any adjustments to be made.
  
  This raises questions for all universities to consider in relation to their processes for putting in place disability support for disabled students. As this case shows, the duty to make reasonable adjustments requires universities to be proactive and to act quickly once they are on notice of concerns. Disability support processes should not place an unreasonable burden on disabled students, and any such processes should themselves be flexible to accommodate disabled students who might find it difficult to navigate them.
  
  

University duty of care

In some ways, this judgment is as notable for what it does not do. Before the County Court, it was argued on behalf of Natasha’s estate that the University owed a duty “to take reasonable care for the wellbeing, health and safety of its students. In particular, the [University] was under a duty of care to take reasonable steps to avoid and not to cause injury, including psychiatric injury, and harm”. The County Court found that no such duty of care was owed and Dr Abrahart, Natasha’s father, cross-appealed on this point.

The High Court judgment was highly anticipated as the first time that the High Court had considered whether universities owe students a duty of care. Disappointingly, the High Court ducked this issue, saying that having reached the conclusion it had on disability discrimination under the EqA it was not necessary to do so. One reason the High Court considered that it would not be wise to express a view was that “the issue is one of potentially wide application and significance”.

In a previous article from June 2023, we discussed a parliamentary debate about a new statutory duty of care for students in universities, prompted by an online petition. The current Government does not support the introduction of such a duty. Whilst there is no imminent prospect of a duty of care being introduced (either through the courts or Parliament), it seems likely that this will remain an area of ongoing focus and debate in the sector.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, March 2024