Read any article that surrounds the welfare or safety of students, and you’ll find ministers and sector leaders repeatedly assert that universities owe a “duty of care” to students.
Outgoing Universities UK CEO Alistair Jarvis argues as such in this press release about non-disclosure agreements. Further and higher education minister Michelle Donelan does the same in this written answer on Long Covid. And in this piece on student mental health, now Universities UK President Steve West says that universities “take seriously their duty of care to … young adults if they get into difficulties.”
But given the court, the judge and the university in question was the same as that in the recent Raquel Rosario Sanchez case, it probably shouldn’t surprise us that the judgement in the Natasha Abrahart case (TW: Suicide) – a student who died by sucide in 2018 whose family took the University of Bristol to court – also found no statute or precedent which establishes the existence of a “duty of care” owed by a university to a student. After all:
the student was not in the care or control of the university beyond its rules in contrast to, for example, a schoolchild in the care of a school or a prisoner in the care of the state.”
I have talked before – both in relation to the Rosario Sanchez case and more generally – about the problems that the sector creates when it raises breadth and depth “duty of care” expectations in policy, press and strategy work, only to plead and have confirmed what feels like the opposite in individual court cases. We ought to be much much clearer with students, parents and staff about what we mean when we use phrases such as those above.
But the Natasha Abrahart case, and the awarding of more than £50,000 in damages to her family, was not only about duty of care. It was also about disability discrimination – in this case a university’s duties to make reasonable adjustments to the way it assesses disabled students, to avoid indirect as well as direct discrimination, and to ensure that they do not treat students unfavourably because of the consequences of their disability. On those issues the judge has very clearly found against the university.
Vanishingly few cases of this sort go to court – and I’ve also talked before on the site about the way in which student suicide cases in particular are almost impossible to learn from because of universities’ need to avoid legal liability. The opportunity to learn and prevent should not be missed this time.
Natasha Abrahart was studying physics at Bristol when she was diagnosed with chronic social anxiety in 2018.
During the hearing earlier this year, Bristol County Court heard that she suffered with “debilitating shyness” – and that prior to the diagnosis, had failed to attend a series of laboratory interviews and oral assessments that were staged as part of her course.
The university’s medical service referred her to the Avon and Wiltshire Mental Health Partnership NHS Trust in February following the first of several suicide attempts.
On the day she died she had been due to give a presentation – in front of other students and staff – in a large lecture theatre.
At the inquest in 2019, the coroner concluded that there had been a gross failure by the Avon and Wiltshire Mental Health Partnership NHS Trust (AWP) to provide basic medical care, and that a clear and direct link existed between this failure and Natasha’s death. A specialist found there was “an unacceptable delay” in her having a specialist assessment following her referral to the Trust and that Natasha’s “risk of self-harm was not adequately assessed.”
Damages for gross negligence were accordingly awarded, and her death was accordingly recorded as “suicide contributed to by neglect”.
But as is often the situation with student suicide, coronors tend to be reluctant to interrogate the university aspects of a case – with the Senior Coroner for Avon, Maria Voisin, on this occasion arguing that:
the scope of the inquest does not include the adequacy of support provided to Natasha by the university.”
In 2020, Abrahart’s parents argued to a parliamentary committee that the inquest ruling therefore prevented any proper scrutiny of the facts, that matters her parents believed were important, were not addressed, and that key questions were not allowed and therefore left unanswered – leaving them “angry, resentful and cheated”.
So they separately took the university to court over duty of care and disability discrimination, and it’s on the latter where the judge has found in their favour. A BBC Documentary from 2019 explains a longer version of the story.
Depression and social anxiety
There is inevitably some deeply upsetting detail in the full judgement. Here I’ve tried to focus on the Equality Act claims and any lessons that ought to be learned across the sector.
In the case, there was no disagreement that as of October 2017, Abrahart had a disability in terms of depression, and the judge also found that she had clinically significant Social Anxiety Disorder. These findings were not “legally consequential” in this case – but the important part is whether the university “knew”, particularly in the absence of any formal diagnosis.
The legal test used by the judge here is whether the university had “actual or constructive notice” of Natasha’s disability, and he argues that as of October 2017 it manifested itself – in other words, it was there to be seen – “in contrast, perhaps, to disabilities which can be hidden or only be discerned with expert technical skill.”
He argues that while there was not “sufficient manifestation” of any disability in her first year to put the university on notice of anything, by October 2017 the university’s staff “could see for themselves” that Natasha had a mental impairment which had a substantial and long-term adverse effect on her ability to carry out an otherwise normal task within her course.
That’s significant – because in drawing that conclusion, the judge relies on Natasha attending an “interview” based assessment and not responding at all to any questions (resulting in being marked down, scoring 8 out of 205); being emailed to arrange a tutorial but ignoring said email; missing some classes in the context that she was “very quiet” in her first year; and attending a re-arranged assessment interview, at which Natasha did not do well and was emailed links to counselling.
I say it’s significant in the context of where we are right now across the sector – with widespread anecdotal reports of disengagement, and national statistics that suggest a significant level of anxiety. Much of the evidence, in other words, points to a huge number of students suffering from a substantial and long-term adverse effect on their ability to carry out otherwise normal tasks within their course.
We can see it, but we may not be acting on it.
Much of the case concerns assessment, including the presentation task that Natasha had been due to sit on the day of her suicide – with the fanily arguing that a failure to put in place reasonable adjustments contributed to her death.
For the laboratory interviews, they argued that the university should have removed the need for oral assessment altogether, and / or provided written questions in advance. And for the presentation, they argued for both of those steps plus assessing Natasha in the absence of her peers, using a smaller venue – in the hearing they also suggested that communication via a text or remote type service could have been deployed.
This is where things get a little complex. The Equality Act 2010 imposes on universities a statutory duty of making “reasonable adjustments” to avoid a disadvantage caused by a provision, criterion or practice to disabled student which puts that student at a substantial disadvantage compared with those students who do not share that disability. Most of us understand that, at least in principle.
But there’s an exemption. In the case of a student, paragraph 4(2) of Schedule 13 of the Act says that a provision, criterion or practice (PCP) does not include the application of a competence standard – defined in paragraph 4(3) as:
… 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”.
In the hearing, the university argued that the oral assessments could not be modified as “an ability to explain and justify experimental work orally is a core competency of a professional scientist”.
But that defence was rejected by the judge, who found:
It is obvious to me that the fundamental purpose of the assessments was to elicit from Natasha answers to questions put to her following the experiments and it is a statement of the obvious that such a process does not automatically require face to face oral interaction and there are other ways of achieving the same.”
Again, this finding is significant. The danger is surely that across the sector, the immediate response will be to compliance-check statements of learning outcomes to ensure that assessment methods that universities have been loathe to adapt for disabled students are somehow reframed as competence standards.
Spelling and grammar?
At this point there are a number of people across universities that will recall last year’s OfS intervention on spelling and grammar, and its section on disabled students, reasonable adjustments and competency standards. In the face of some suggesting that it might be reasonable for some disabled students to consider alternative methods of assessment (to, say, requiring a written submission) or to not take into account the standard of written English and grammar in a written submission if the competence was not concerned with the skill, OfS hedged its bets a little:
Proficiency in written English is a competence standard will therefore depend on the nature of an individual course. Our view is that being able to use technical language, to communicate complex ideas in writing, and to construct coherent arguments, is an important part of most higher education courses. Providers should seriously consider treating these as competence standards to ensure that all students, including disabled students, develop these skills. This position is reflected in the OfS’s current sector-recognised standards, which include, for example, an expectation that holders of bachelors’ degrees will be able to ‘communicate information, ideas, problems and solutions to both specialist and non-specialist audiences.”
What’s clear from the case is that if universities are going to suggest that the format of an assessment is a competence in and of itself, rather than a means to an end to demonstrate a competence, it needs to say so upfront. Yet the more it does rely on that exemption in the Equality Act when doing so, the less it will be able to adjust those assessments reasonably for disabled students.
At the very least, OfS ought to take a fresh look at that report in light of the case.
Discrimination – indirect and direct
On the wider question of indirect discrimination, the judge found that Natasha’s disabilities – depression and SAD – were relevant protected characteristics, and meant that she barely (if at all) participated in oral presentations.
And on direct discrimination, he also found unfavourable treatment in relation to the marking down of her oral assessment work/ imposition of penalty marks. While the university had suggested Natasha submit extenuating circumstances, he argues that would still have resulted in a period of unfavourable treatment – a finding plenty of universities will want to reflect on when trying to learn lessons from the case, not least because:
…Annexe 5 of the same [academic regulations] document and sections 4 and 5 seem to place some expectation of a disabled student to disclose a disability and to assume some personal responsibility to ensure that adjustments work. Again there is a danger that if the university relies on the expectation the same becomes a PCP.”
He also noted that “whilst a few ideas” regarding possible adjustments were “floated” by the university, “none were implemented”.
What he’s getting at here is that where universities – as so many do right now – rely on students disclosing formally diagnosed disabilities, having to take responsibility for suggesting or assessing the efficacy of adjustments, and having to apply for “extenuating circumstances” if they don’t cut it, that all represents “provisions, criteria or practices” that potentially in and of themselves put a disabled student student at a substantial disadvantage:
In my judgment there can be no doubt that there was direct discrimination especially once the university knew or should have known that a mental health disability of some sort was preventing Natasha from performing (and causation is not in issue).
In a statement, the university says that given the significant impact that the judgement could have on how all higher education providers support their students, “we are reviewing the decision carefully, including whether to appeal.”
Whether it does or not, three things strike me particularly about the case other than my reflections above about duty of care and the way in which a need to avoid legal liability can prevent learning (not least by coronors) in cases of student suicide.
The first is that so many of the cases that I have come across over the years involve strained relationships – between disability services staff that argue that academic competence standards should be amended as a reasonable adjustment, and academic staff who are under pressure to maintain academic standards and don’t understand the complexities of equality law. There is room all round for a fresh look at the working relationship and processes of dialogue between these centres of expertise in a university in the interests of disabled students.
The second is that much of our practice in the sector of requiring what amounts to disabled students having to prove their disability and fight for adjustments is awful, and almost certainly unlawful. Many in the sector will worry about the responsibilities this judgement implies – in particular on academic staff to notice students suffering from significant depression or social anxiety. But finding ways to do it, rather than getting legal advice on avoiding liability if we don’t, will be key.
And that brings us ultimately to the regulator. I – along with plenty of disabled student voices in the sector – have long been a critic of a regulatory approach that focuses disproportionately on outcomes rather than experience when assessing compliance with, and commitment to, duties on equality for diabled students.
If we would rather not rely on disabled students having to make arduous individual complaints (and the OIA certainly suggests we should avoid that approach), we need some sense from OfS that it will start to cast a critical and proactive eye over the apparently egregiously discriminatory provisions, criteria and practices that we know deep down are widespread across the sector.