Duty of Care reaches the High Court

Anyone who’s been following the debate around a statutory duty of care for higher education students will also have been following the Abrahart v University of Bristol case.

Back in May 2022, the parents of physics student Natasha Abrahart, who sadly died by suicide in 2018, successfully sued the University of Bristol at Bristol County Court for breach of the Equality Act 2010.

While academic and support staff helped Natasha with a referral to the NHS for her mental health – and the NHS itself was found to have failed Natasha by the coroner – the judge found that reasonable adjustments for Natasha’s social anxiety disorder should have been implemented ahead of the delayed formal diagnosis and that changes should have been made to assessment methods that could not be justified on the basis that they represented a competence standard.

This week the University of Bristol will appeal the judgement to the High Court, arguing they are “seeking absolute clarity for the higher education sector around the application of the Equality Act when staff do not know a student has a disability, or when it has yet to be diagnosed.”

Of particular significance is that the Equality and Human Rights Commission has been granted permission to intervene in what it has described as this “landmark legal case” which could “have far-reaching implications”. It’s already highlighted the anticipatory duty to make reasonable adjustments (Section 20, Equality Act 2010) and competence standards (Schedule 13, 4(2), Equality Act 2010).

The original Bristol County Court judgement found Equality Act failings but no formal “duty of care”. But since then, the Central London County Court concluded that the Royal Welsh College of Music and Drama did owe the student complainants – who were “vulnerable adult[s] who may be at risk” – a legal duty of care.

Unlike the Abrahart case, the student complainants were not classed as disabled, and since no relevant claim for any other type of discrimination had been submitted, Recorder Halford could not rely on the students being protected by the Equality Act 2010 – as Bristol County Court did for the Abraharts. Rather, Halford ruled that the university had failed to uphold a previously promised “duty of care” and, through negligence, caused damage to their general mental health.

So as well as hearing the University of Bristol appeal, back in November, the judge granted the Abraharts’ application to look again at the duty of care issue, finding that the “appeal seems to me to have a real prospect of success.” The judge also said there were “compelling reasons” for the duty of care issue to be considered alongside the issues in relation to disability discrimination. Given the RWCMD was found to have had a duty of care for matters outside of the primary purpose of teaching and learning, part of the argument will be that Natasha Abrahart was due one also both in relation to the pastoral care and the assessment aspects of her case.

While Universities UK continues to maintain that universities already have a general duty of care to their students not to cause harm by careless acts or omissions, a Westminister Hall debate back in summer in response to the ForThe100 campaign – which largely revolves around preventing student suicide – heard the case for bringing in legislation that would legally mandate universities to “exercise reasonable care and skill in the way they treat their students”.

This isn’t about treating students like children, and nor is it a version of “in loco parentis” – it, in effect would give students the same right to standards of support that staff have in law, which necessarily flex depending on circumstances.

Should the court rule in the Abraharts’ favour either on the Equality Act appeal or the Duty of Care aspect, there would be major and far-reaching legal implications for the sector – not least in terms of the quality, consistency, and standard of support afforded to students, and how fast institutions will be expected to respond and comply with such legislation.

After the Westminster Hall debate, Robert Halfon said that he did not think a statutory duty of care was needed – but would continue to monitor the sector to see how the current law is applied. After this week, he may get an answer very quickly on the latter, which means he may have to rethink the former.