Equality and Human Rights Commission to give guidance on reasonable adjustments for students
Sunday Blake is associate editor at Wonkhe
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On Friday the Equality and Human Rights Commission (EHRC) announced that it is to intervene in the Abrahart v University of Bristol case.
Bristol is appealing in order to seek “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.”
The EHRC says will provide authoritative guidance on higher education providers’ obligations under the Equality Act – specifically, the anticipatory duty to make reasonable adjustments (Section 20, Equality Act 2010) and competence standards (Schedule 13, 4(2), Equality Act 2010).
The Abrahart case
The background is that back in May 2022, a county court ruling determined that the university had failed to implement reasonable adjustments – such as alternative arrangements for assignments – for physics student Natasha Abrahart who suffered from social anxiety, but had yet to receive a formal diagnosis.
The judge ruled that Abrahart’s disability manifested itself in a way that staff could “see for themselves”.
In other words, the judge argued that it was clear from her behaviour and disengagement that she had “debilitating shyness”. This is “in contrast, perhaps, to disabilities which can be hidden or only be discerned with expert technical skill.” The judge places the responsibility on the provider, and not the student, in being proactive in deciphering disability and need.
The day she died, Abrahart was due to give a presentation in a large lecture theatre in front of staff and students and was under the care of specialist mental health professionals at Avon and Wiltshire Mental Health Partnership. The coroner found “gross failure” and ruled Abrahart’s death as “suicide contributed to by neglect”.
The court ruled that the university had failed to make reasonable adjustments to the way it assesses disabled students to avoid indirect, as well as direct discrimination, and awarded her family £50,000 in damages.
The ruling that the university had discriminated against a student despite a lack of formal diagnosis may mean that institutions take a more proactive approach to ensuring accessibility for disabled students.
The crucial issue at stake – that the EHRC intervention may impact – is when a university should consider that a student is disabled, and who is supposed to make that judgement – especially given that a formal “medical” assessment is often something that takes time and can be costly.
The nature of the “anticipatory duty” on universities has major implications. Most understand that anticipatory adjustments may be having to have ramps in position in case somebody in a wheelchair needs it, rather than when required. But things get trickier with mental health disabilities.
The Abrahart judgment effectively suggested that if a student shows indications that they may be disabled, then the law sets up an expectation that that provider will support them with reasonable adjustments. The problem for some is that that sounds like a very low threshold to meet, and one that is much lower than that which is in practice now.
As such one of the trickiest aspects of the case was the extent of the university’s “actual or constructive knowledge” of Natasha’s disability ahead of any formal assessment.
Who knew
In this National Association of Disability Practitioners note on the potential implications of the Bristol case, one of the questions raised is whether it is reasonable to expect a non-specialist – such as an academic lecturer or administrator – to determine that a condition is “substantial” and “long term”.
In the note, legal firm Veale Wasbrough Vizards argue that a provider’s employees have to do what is “reasonable” to spot whether students have a condition which might meet the legal test.
It suggests that a self-declaration of need does not by itself mean a student must be considered disabled, but it should trigger scrutiny from staff as to the nature and severity of that need and whether it might constitute a disability for which reasonable adjustments are required.
It also says it would be “prudent and best practice” for providers to offer training to academic and professional staff on these issues in order to improve the ability of the provider to identify and act on concerns.
The other issue that the EHRC intends to intervene on is that of competence standards in assessment. The university says that Natasha was supported in wellbeing and NHS referrals and alternative assessments where she suffered anxiety. However, in the legal case, the judge was critical of the way in which the university defined the nature of Natasha’s oral assessment in relation to doing so being a competence standard.
Again, in the NDAP note, the line from the law firm is that competence standards must be objectively justifiable – i.e. a proportionate means to a legitimate aim – and must be genuinely relevant to the course in question.
The tricky part is that once something is a standard, there’s no requirement to make any reasonable adjustments to the application of them – only to the process by which competence is assessed. So is presenting to students a competence standard, or a way of assessing competence?
EHRC guidance is likely to repeat the objectively justifiable, proportionate means to a legitimate aim line – but case studies could be helpful as others in the sector work up more detailed guidance.
A wider duty of care?
More broadly – as I have argued before – the judgment in this case relies on a student both being part of a demographic group covered by the 2010 Equality Act and being able to prove this part of their identity was discriminated against somehow.
It does not protect all and any students from harm.
The court did not uphold the Abraharts’ claim the university had failed in a general duty of care to Natasha as universities do not have a duty of care over their students under the law – sparking campaign groups The Learn Network and ForThe100 to establish one.
In contrast to this more recently the Royal Welsh College of Music and Drama defend themselves against student claimants Alyse Ms McCamish and Sydney Feder – who alleged that they experienced harm caused by the institution’s negligent investigation into their complaints of sexual misconduct – by claiming that the students were not officially vulnerable, and so they had no legal duty of care.
The judge, however, found in the student claimants’ favour – ruling that the college was negligent in its response to the sexual assault allegations, and had failed in a particular duty of care relating to the processes surrounding the allegations and awarding both large sums of compensation.
The judgement also opens up the prospect for all sorts of other types of cases to claim this specifically constructed “duty of care” where the issues aren’t specifically about discrimination under the 2010 Equality Act.
As it stands, at least legally speaking, “duty of care” and the equality obligations of universities are relatively up in the air. An official intervention from the EHRC could offer more clarity on where and when universities need to act – which will have potential far-reaching implications.
The Law remains that there is no comprehensive obligation upon Us to keep Ss safe 24/7.
But where the EqA10 applies the U must comply – as the article sets out, and as the Abrahart case found (subject to appeal as to who within the U can be said to be on notice when and what should then happen by way of interim/fast ‘reasonable adjustment’).
And where the U has deliberately assumed a potential new DofC by inventing a policy on harassment or whatever, then it must apply that policy’s processes in a competent way (as the RWCMD case confirms) – delivering its ‘service’ to the ‘consumer’ (as already for teaching & assessment, disciplinary policies, appeals & complaints procedures, etc, but as now extended by its new policy re X or Y) with ‘reasonable care and skill’ as required of the ‘trader’ by the CRA15.
Not sure there is really anything very novel in these two first-instance cases: see Farrington & Palfreyman on The Law of Higher Education (OUP, 2021, third edn)…
although it would help if the CMA 2023 guidance to Us on CRA15 were upgraded by the OfS amending its regulatory condition of Us being required to ‘have regard to’ consumer law into a condition of ‘must apply consumer law’ (which would also clarify where Us should do part-refunds of fees where teaching is lost because of strike action, and make clear compensation is due where degree results are delayed because of strike action impacting marking).
Part of the problem, from my perspective as a graduate now employee of a different University is that Universities have become too large, with Academic’s having too many tasks and little if any secretarial or specialist support (cost cutting shed many of those roles, now hybrid working exacerbates the situation) whilst student numbers continue to increase. Universities need to employ enough people to provide both the specialist support, and have enough so any Academic, or more commonly admin, halls or technical staff member spotting an issue have somewhere to refer the issue to.
First of all, condolences to the family and friends of Ms A, and to all those who have had to manage the terribly sad consequences. Whatever the legal position, and I agree with David on that, these awful things simply need not happen. We learn from this and the other case mentioned that the Providers concerned and no doubt many others have to ensure that all staff are properly trained to recognise concerns about student behaviour and how to process those concerns, and John is correct on that point. There is nothing new about this. Many staff and former staff (me included) have had to try to work out what is best for individuals, and not always succeeded. The same approach – training – goes for staff. It beggars belief that after 50 years of anti-discrimination laws – now the Equality Act – there are successful cases of direct and indirect discrimination, mainly these days racial discrimination, still reaching the Employment Tribunals from certain HE Providers. Just see the Updates to David’s and my book on the OxCHEPS website. It’s all about training.