The University of Bristol loses its appeal over the Abrahart case

The High Court has rejected the University of Bristol’s appeal against an earlier judgment that it contributed to the death of a student by discriminating against her.

(CW: Suicide, depression, mental health)

Natasha Abrahart died by suicide on 30 April 2018, the day that she was due to give a presentation to fellow students and staff in a 329-seat lecture theatre.

The second-year undergraduate physics student, originally from Nottingham, had been diagnosed with chronic Social Anxiety Disorder in February 2018.

Natasha had been a high-achieving student until her second year at university – but in October 2017, academic staff became aware that she was struggling and was experiencing anxiety and panic attacks in relation to oral assessments that formed part of a laboratory module.

In February 2018, a university employee received an email from Natasha’s account saying, “I’ve been having suicidal thoughts and to a certain degree attempted it”.

Natasha’s father, Robert Abrahart, brought a legal action against the university alleging it had contributed to his daughter’s death by discriminating against her on the grounds of Disability contrary to the Equality Act 2010, and by breaching a duty of care owed her under the law of negligence.

In May 2022, a senior County Court Judge, Alex Ralton, ruled that the university discriminated against Natasha and that this contributed to her death. Ralton found that the university had breached its duty to make reasonable adjustments to the way it assessed Natasha, engaged in indirect Disability discrimination against Natasha, and treated Natasha unfavourably because of the consequences of her Disability.

But Ralton did not find that the university owed Natasha a common law duty of care. The High Court has now considered both an appeal from the university, and a cross-appeal on the duty of care issue.

The university’s appeal challenged the court’s finding that the university breached the duty to make reasonable adjustments, and challenged the court’s finding that the university breached section 15 of the Equality Act 2010 (discrimination arising from Disability). Both areas failed.

The judgement finds that Ralton 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”.

And the university therefore failed in its argument that…

the assessment of a student’s ability to explain laboratory work orally, to defend it and to answer questions on it was “a core competency of a professional scientist” and so not subject to the duty to make reasonable adjustments.

But the picture of when the university “knew” Natasha was Disabled is more nuanced.

We covered the County Court judgement back in May 2022 and have covered the ongoing debate about a statutory duty of care extensively on the site. Here, we explain the appeal judgement and consider some of the initial implications for both universities and students.

Duty of care?

First, the duty of care issue. In the County Court process, the negligence claim against the university was dismissed because the judge ruled that the university did not owe Natasha a common law duty of care – categorising the claim as based on negligent omissions, or in other words, “failing to protect Ms. Abrahart from harm or from herself”.

In the original judge’s view, the case didn’t fit into any exceptional categories where a duty of care could arise – but argued that had that kind of duty been recognised, the university would have breached it by requiring Natasha to participate in interviews and a conference, and penalising her non-participation despite knowing her mental health issues prevented her involvement.

But then late last year, following a County Court ruling that found that the Royal Welsh College of Music and Drama had a duty of care to address allegations of sexual abuse by students, Justice Linden recognised the potential success of the appeal – and, highlighting the importance of considering a potential duty alongside disability discrimination, gave permission for the Abraharts to “cross appeal”.

In the end, Linden decided not to consider it – partly because of the broad implications of that sort of ruling, incomplete arguments in the original case to review on negligence law, and the focus on Equality Act 2010 issues during the hearing. Given the initial judgment “lacked detailed evidence analysis” for a negligence claim, his view was that the issue would need a retrial and the Court of Appeal to look again – and so no final view “one way or the other” has emerged on duty of care.

That argument will continue both politically and potentially legally – with Natasha’s father stating:

If the university try to take this case to the Court of Appeal then we may revisit the issue of a common law, or “judge-made”, duty of care.

When is a student Disabled?

The first big issue in the case and the appeal was really about “knowing” whether a student is Disabled at a given point. That’s because previous rulings have clarified that for discrimination claims to succeed, the discriminator must have “actual or constructive knowledge” of the Disability – defined by specific criteria including a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities.

The courts have held that that knowledge does not mean that a condition legally constitutes a Disability under the Act – it’s about awareness of the facts constituting the Disability. And so, “constructive knowledge” is about working out whether the university could reasonably have been expected to know about the Disability and whether any inquiries into the condition were made or could have been made (with reasonableness of asking balanced against the privacy and dignity of the student).

As such, the appeal got into the question of whether the university was aware that Natasha’s impairment was long-term – a crucial element under section 15(2) of the Equality Act 2010.

The university argued during the trial that there was no indication Natasha’s problems with oral assessments were long-term, especially given her lack of problems in her first year and the absence of medical evidence of a diagnosis – but the County Court found that the university had the requisite knowledge from October 2017.

The appeal judgment gets into some legal technicalities and criticises the original judgement – for example, references to what the university “knew or should have known” suggest constructive knowledge, while mentions of university staff being able to “see for themselves” imply actual knowledge.

And while the judgment found that the university was aware of Natasha’s mental health issues from about October 2017, Linden finds that it didn’t properly explain how it was known (or should have been known) that this would likely have a long-term impact on her day-to-day activities for at least 12 months.

So, while the judgment recognised the university’s awareness of Natasha’s mental health struggles, it “fell short” in adequately reasoning how that awareness constituted knowledge of a long-term Disability under Section 15 of the Equality Act.

The appeal also looked at whether the university “knew” that Natasha was Disabled in December or January – and, without having heard the evidence directly, again leaned towards caution and favoured the university’s point of view due to the risk of unfairness.

But by 1 February 2018, continued concerns about Natasha’s participation in lab interviews suggested the university might have realised the impairment’s potential to last over 12 months – and by mid-Feb, the judge found that the university should have known the impairment’s likely long-term nature, especially given Natasha was apparently unable to seek help, indicating a level of social anxiety considered in relation to Disability.

Basically, by then, the university should have inquired about discussing Natasha’s condition with the Student Health Service or sought her consent for a medical report (which she almost certainly would have given based on her consent for other disclosures regarding her mental health) – so while the appeal concluded that any claim could only be successful for treatment after mid-Feb, the appeal found that the original decision was ultimately sound.

Disability discrimination

On the Disability discrimination issue, the result is much more clear-cut. One of the core issues was whether oral assessments that had been set by the university for Natasha’s physics course were in and of themselves competence standards or merely methods of assessment of another standard.

The university argued that “oral communication” is a core competency for scientists – and produced curriculum documents and evidence of common practice in physics education, suggesting that explaining and defending work orally was intrinsic to a physicist’s professional skills.

The Abraharts’ case was that these were methods of assessment rather than competence standards, noting that the course documentation didn’t prioritise oral communication skills and that the marking scheme didn’t specifically evaluate oral presentation skills. They also argued that other ways of taking part in the oral assessments were viable.

Back at the County Court, the judge found that the oral assessments were not inherently competence standards for oral communication – but rather methods of evaluating students’ understanding and ability to engage with experimental work, noting that the specific module in question didn’t mention presentation skills as a key learning outcome.

Separately, while the university had acknowledged the potential need for adjustments, it stressed the importance of following due process and relying on expert advice, such as a Disability Support Summary (DSS) or medical evidence, before implementing changes that could potentially alter the academic assessment’s “rigour” or compromise fairness to other students and the course’s academic integrity.

The County Court judgement had noted that Natasha’s symptoms had developed over months and that the university was aware of her struggles – but had hesitated to make adjustments without a Disability Support Summary (DSS) or medical evidence, a stance the Judge found unreasonable given the circumstances.

The judgment also criticised the university for penalising Natasha for her non-attendance at oral assessments, suggesting a rigid adherence to procedural formalities over substantive accommodation, as well as a failure to engage proactively with her needs, especially given the anticipatory nature of the duty to make reasonable adjustments.

Long story short, Linden found that the original judgement was grounded in a detailed assessment of facts and the university’s knowledge of Natasha’s mental health issues.

The appeal judge criticises a handful of structural and terminological problems but overall found that the County Court’s judgement – that the university’s reliance on due process and medical evidence before making adjustments did not outweigh its duty under the Equality Act 2010 to make reasonable adjustments – was sound, particularly given its awareness of Natasha’s challenges and the impact on her ability to participate in oral assessments.

Crucially, Linden didn’t disagree with the County Court in rejecting the university’s arguments that it lacked sufficient knowledge or expertise as a defence for its inaction – and found that the university’s internal regulations and policies, while important, “must yield” to the legal requirements to accommodate students with disabilities. In fact, the procedures, in practice, became another barrier to making necessary adjustments.

That’s often the sort of decision that the Office of the Independent Adjudicator makes when a university clings to procedure.

Linden also found that the County Court’s view that proposed adjustments, including the possibility of replacing oral assessments with written work, were reasonable – and that the university’s failure to consider them meaningfully was a conclusion that was clearly open to the judge.

Objective justification

There was one other issue in the appeal – over “objective justification” for discrimination.

In law, you have to prove there’s a “legitimate aim” like a genuine business need or a health and safety need, and that the discrimination is “proportionate, appropriate and necessary” – the legitimate aim is more important than any discriminatory effect. The university had argued that “legitimate aims” were rigorous assessment and fairness among all students and that that hadn’t been properly considered.

That wasn’t washing with Linden. Finding the original judgment’s findings to be permissible, he concluded that if complying with the duty to make reasonable adjustments would have resulted in Natasha attending and potentially performing better, then the marks and penalty points ascribed to her (which were, after all, based on her non-attendance or performance in the unmodified assessments) could not be deemed proportionate.

Hence, Linden rejected the appeal, upholding the finding albeit with a clarification that this applied to treatment from 13 February 2018 onwards.

Upshot and implications

Taken together, a fairly complex picture emerges. The legal arguments over Duty of Care haven’t gone away – and might yet get heard in the Court of Appeal.

The discrimination issues are interesting mainly because of the significant finding here – that while an initial spot of Natasha’s symptoms didn’t necessarily mean that the university had to regard her as Disabled instantly, it also couldn’t wait (in this case) until some medical diagnosis proved it.

On one level the need for universities to not wholly or solely rely on external diagnosis is obvious. Interestingly, Welsh Education Minister Jeremy Miles wrote to a students’ union this week that had raised the issue of students who experience long waiting times for receiving a diagnosis of neurodivergent conditions.

Miles argues that a professional diagnosis is important and, where appropriate, students should be encouraged to follow NHS-approved assessment pathways – but also says that a lack of a formal diagnosis should not prevent a student from receiving reasonable support and adjustments, particularly if university services have “recognised traits or behaviours of neurodivergence in an individual.”

He goes on:

A formal diagnosis should not prevent a university from considering reasonable adjustments or additional support where there is an identified need and until such time a formal diagnosis has been documented.

As Linden puts it in the appeal judgement:

The lesson of this part of the case is not that due process and evidence are unimportant where the question of reasonable adjustments arises in this context. They are important. There will no doubt be many cases where it is reasonable to verify what the disabled person says and/or to require expert evidence or recommendations so as to make well-informed decisions. A degree of procedural formality will also generally be appropriate for the reasons which the University advanced.

But what a disabled person says and/or does is evidence. There may be circumstances, such as urgency and/or the severity of their condition, in which a court will be prepared to conclude that it is sufficient evidence for an educational institution to be required to take action. That was the view of the County Court on the facts of this particular case.

But beyond the legalities, the appeal judgement opens up all sorts of moral and ethical problems for universities over long-term or fluctuating health conditions, and what to do when a student “becomes” (or thinks they may have been or have become) Disabled during their course.

The “long term adverse effect” that has lasted or “is likely to last for at least 12 months” criteria for determining Disability is a huge problem for students – not least because I’ve heard of plenty of universities denying access to their Disability services for students in their final (or single PGT) year.

If – and it’s a big if given that “likely” qualifier – universities are going to maintain that fairness and rigour trump making adjustments for someone that isn’t “yet” experiencing a long-term adverse effect, both universities and the national student finance systems need much more sophisticated ways to enable students to pause or reduce study intensity.

Meanwhile, the potential for the actual reasonable adjustments required over assessment isn’t necessarily clear-cut either. The danger is that a compliance-led reading of the judgement means that module leaders are instructed to write in all sorts of assessment methods as competence standards to cover their back.

Again, beyond the legalities and subject by subject, we probably do need a proper view – perhaps as part of the QAA’s subject benchmarking statements process – on whether what some clearly see as “alternative” assessments can really be justifiably refused.

The question of whose call it is that a physicist needs to be able to speak to a lecture theatre full of people was resolved here by a lack of documentation. In the future it, and related questions, need resolution more broadly – and given that students can both become and become aware that they are Disabled while at university, those decisions to be signalled up front to students.

Nationally, universities have a crucial role in maintaining and promoting standards and rigour in subject areas – but they also have a huge role to play in progressively shaping society’s attitudes towards Disabled people and what they can do and are capable of. Letting the former trump ambition over the latter isn’t something the sector should contemplate.

When life is difficult, Samaritans are here – day or night, 365 days a year. You can call them for free on 116 123, email them at jo@samaritans.org, or visit samaritans.org to find your nearest branch.

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Commenting on the case, Evelyn Welch, vice chancellor of the University of Bristol, said:

Natasha’s death is a tragedy – I am deeply sorry for the Abrahart family’s loss.

At Bristol, we care profoundly for all our students and their mental health and wellbeing is a priority and is at the heart of everything we do. We continue to develop and improve our services and safeguards to support our students who need help.

In appealing, we were seeking 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. We will work with colleagues across the sector as we consider the judgment.

Robert Abrahart, Natasha’s father and retired university lecturer, said:

It has been a long and painful journey to reach this point, and the University of Bristol has fought us every step of the way. The result is that we now have a judgment from the High Court confirming what we always knew to be true. The University of Bristol failed our daughter, broke the law, and contributed to her death.

Their arguments that they did not know enough about Natasha’s problems, or that they hadn’t received the right paperwork, or that fairness to other students meant they couldn’t make the adjustments she needed, have now all failed for a second time. It is now for the University of Bristol, and higher education institutions across the country, to get their houses in order.

Margaret Abrahart, a retired psychological wellbeing practitioner, said:

We have been able to get some measure of justice for Natasha because she was Disabled and therefore covered by the Equality Act. But what about students who aren’t Disabled? They need a statutory duty of care. 128,000 people signed a petition calling for a statutory duty requiring universities to act with reasonable care and skill to avoid harming students, but the Government kicked the issue into the long grass.

Do Keir Starmer, Rishi Sunak, and the other party leaders really think universities should be allowed to cause harm to their students by acting without reasonable care and skill? If they don’t, then they should prove it. Put a statutory duty of care for universities in your manifestos, or explain to the voters why you think that some students should be protected while others are not.”

Gus Silverman, a solicitor at Deighton Pierce Glynn representing the family, said:

So far as we are aware this is the first time the High Court has considered arguments that disability discrimination has contributed to a person’s death. Upholding the finding that Natasha’s death was linked to this kind of unlawful treatment therefore establishes a powerful legal precedent. It is also a reminder that universities cannot shirk their duties to make reasonable adjustments to potentially discriminatory policies on the grounds that a Disabled student has not followed a particular bureaucratic process.

As Mr Justice Linden has found, ‘what a disabled person says and/or does is evidence’ that can, and in some circumstances must, prompt urgent action to avoid discrimination from taking place.