This blog post, by Dr Achas Burin of 12KBW and Dr Shreya Atrey of the University of Oxford, summarises the most pertinent aspects of both the High Court and County Court judgments, with further comment on their implications.
Introduction
This claim was brought following the death by suicide of Natasha Abrahart, an undergraduate student reading physics at the University of Bristol (‘the University’). She suffered from poor mental health which impaired her ability to participate in oral assessments. She died before she was due to give a presentation at a laboratory conference, which formed part of her course requirements. Expert evidence established that she had depression and Social Anxiety Disorder.
The claim against the University was brought both in negligence and under the Equality Act 2010 (‘EqA’), on the basis of discrimination arising from disability (s.15 EqA), indirect discrimination (s.19 EqA) and a failure to make reasonable adjustments (s.20 EqA).
At first instance, the claim succeeded on all three EqA grounds but negligence was not made out because no duty of care was established.
The defendant appealed the ruling under the EqA, while the claimant cross-appealed the dismissal of the negligence case. Linden J in the High Court upheld the County Court’s findings in the claimant’s favour but declined to rule on the cross-appeal.
Facts
The facts were the subject of an inquest as well as the civil claim. In the civil case, the main factual issue related to the extent of the University’s actual or constructive knowledge of Ms Abrahart’s mental health.
The County Court’s findings were adverse to the University, and it failed to discharge the burden on appeal of showing that they were unreasonable, according to Fage v Chobani [2014] EWCA Civ 5 and the other well-known cases on appealing factual conclusions and evaluations.
Briefly, the facts were as follows. At the point when Ms Abrahart joined the university, there was no indication that she might develop mental ill health. In her second year, she had problems in her personal life and began to study the module which included the oral assessments: individual interviews and a group presentation at a conference.
The court found that the University’s actual or constructive knowledge grew over the six months that followed before Ms Abrahart took her own life. Of the five assessed interviews, she attended only two over the six months. From around October 2017, after the first interview at which she did not speak, the judge found the Student Administration Manager knew that Ms Abrahart “was suffering some injury to her mental health connected to the interviews.” Ms Abrahart was offered a counselling appointment but declined it.
At a meeting with the Senior Tutor on 5 December 2017, the Tutor asked her to see her GP and/or Student Counselling Services to find out whether they could diagnose a particular issue and then formalise a disability support plan. HHJ Ralton found that from about this point in time the Senior Tutor knew that Ms Abrahart was suffering some injury to her mental health connected to the interviews.
After failing to attend a third interview, the physics tutors noted that this appeared to be a genuine case of some form of social anxiety. On appeal, it was found that by 13 February 2018, the University was unable to satisfy section 15(2) EqA as regards knowledge and, thereafter, the University’s case on knowledge grew weaker.
At this stage, Ms Abrahart received NHS treatment but no health information was shared with the School of Physics by the GP or the NHS Trust. She attempted suicide more than once, but this was not known to the University.
On 6 March 2018, Ms Abrahart spoke with the Student Administration Manager and the latter suggested alternative strategies to oral assessment, which was reiterated in two emails. There was a further suggestion of using the ‘extenuating circumstances’ procedure which would be a retrospective procedure granting some clemency in relation to oral assessment if she did poorly.
On 27 April 2018, the Student Administration Manager gave Ms Abrahart the option not to speak at the laboratory conference, provided her contribution to the project was clear, but Ms Abrahart responded that she would participate in the presentation.
In advance of the conference, the Student Administration Manager asked the assessors to “please take [extenuating circumstances] into consideration when marking her group if that is permissible”. They responded saying that they would be “duly sensitive”. However, although the Student Administration Manager offered to Ms Abrahart that she need not speak at the laboratory conference, no changes were made to the form of assessment or the marking criteria. The Inquest was told that this was because: “there had been no request to do so either by Ms Abrahart or under a Disability Support Summary.”
She did not attend the laboratory conference on 30 April 2018 and, very tragically, died that day.
Judgment on the Equality Act 2010
The main issue under the Equality Act 2010 was whether the University had a duty to adjust the oral assessment requirement of ‘Practical Physics 203’ owing to Ms Abrahart’s social anxiety.
First, in relation to section 20 of the Equality Act (‘duty to make reasonable adjustments’) the Court had to consider: (i) whether there was a provision, criterion or practice (PCP); (ii) that put a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, and (iii) whether there were reasonable steps to be taken to avoid the disadvantage. The bulk of the High Court’s analysis was dedicated to this three-step determination.
At the outset, the University’s contention was that no duty to make reasonable adjustments existed in respect of oral assessment which was considered a ‘competence standard’ and hence excluded as ‘PCP’ under section 13 of the Equality Act 2010. The High Court rejected this submission. It found that the oral examinations, contrary to the University’s contention that they measured a student’s ability to convey ideas, were actually a way of testing knowledge and comprehension. According to the High Court, the oral assessments were in fact a method of assessment and not a competence standard. Further, the fact that the University had at one point suggested to Ms Abrahart that she need not speak at the conference, provided she contributed to the presentation in other ways, was considered fatal to the University’s competence standard argument.
According to the High Court, given that the University knew that the oral assessments (‘the PCP’) posed particular difficulties for Ms Abrahart (‘substantial disadvantage’) as she often did not speak or failed to appear for them, it was the third step of the analysis which needed consideration: whether the University had a duty to take reasonable steps to avoid the disadvantage.
Here, the High Court first established the existence of the duty to make reasonable adjustments before establishing that the duty had in fact not been discharged.
The existence of the duty was established under Schedule 13 of the Equality Act 2010, which obliges responsible bodies (including universities) to provide reasonable adjustments in relation to provision of education. For the purposes of Schedule 13, references to ‘a disabled person’ are references to disabled persons generally. The High Court found that the effect of this was that the duty ‘may be owed to people who were not known to the educational institution before the issue arose in relation to them’ (para 157) and in that sense the duty was ‘ex-ante’ or ‘anticipatory’ in nature (para 158). While this duty does not require the universities to anticipate every need, it does require that the universities think about and provide for ‘features which may impede persons with particular kinds of disability — impaired vision, impaired mobility and so on’ (Keith Roads v Central Trains Ltd [2004] EWCA Civ 1541, [11]).
The High Court found that since the University was aware of Ms Abrahart’s social anxiety especially in respect of the oral presentations, the failure to waive that requirement (or another such adjustment such as to have her present her work in front of a smaller group), was a breach of its duty to take steps reasonably expected of the University in this case. The fact that there was no ‘due process’ determination of Ms Abrahart’s disability, nor a disability support plan approved by Student Disability Services at the University, should not have impeded the University’s ability to offer reasonable adjustments. A breach of section 20 EqA was thus established.
Second, in relation to section 15 (‘discrimination arising from disability’), the High Court had to consider: whether the University had actual or constructive knowledge about Ms Abarahart’s disability for her treatment to constitute disability discrimination. The High Court found that the University did have actual knowledge of Ms Abrahart’s condition about two months prior to her suicide when they were first alerted of her attempted suicide. The question then was whether the University had treated Ms Abrahart unfavourably on the basis of her known disability from that point on. The High Court declined to interfere with the County Court’s assessment which it found to be based on the correct application of law, even though the Court below did not use the language of proportionality.
Third, in relation to section 19 (‘indirect discrimination’), the High Court again declined to interfere with the County Court’s conclusion, finding no error in law in the way the Country Court had made its assessment.
Judgment on negligence
HHJ Ralton commented that the duty of care pleaded in the Particulars of Claim was novel, being one “to take reasonable care for the wellbeing, health and safety of its students. In particular, the Defendant was under a duty of care to take reasonable steps to avoid and not to cause injury, including psychiatric injury, and harm.”
This, he reasoned, following the general dicta in Robinson v West Yorkshire Police [2018] UKSC 4, constituted failures to prevent harm caused by other people or by natural causes, for which tort law generally imposed no duty.
Whilst exceptions to this general principle were recognised, HHJ Ralton did not consider that Ms Abrahart’s case fell within them. The precedents cited usually involved a particular relationship or an assumption of responsibility. This case was unlike those: Ms Abrahart was not in the care or control of the University to the same extent as a schoolchild or prisoner and thus the University had no duty to ‘protect her from herself’ (para 149); nor could the provision of ancillary welfare support services amount to an assumption of responsibility on its part.
In the cross-appeal in the High Court, Dr Abrahart argued that the judge was wrong to find that the case was one of ‘pure omission’. Even if it were, he argued, there had been an assumption of responsibility on the part of the University sufficient to give rise to a duty of care. Furthermore, he argued that it was fair, just and reasonable for a duty to exist at common law notwithstanding the duties under the EqA.
The issue being one of wide significance and application, and given the paucity of reasons in the first instance judgment (which focused on the EqA), Linden J declined to determine the cross-appeal.
Comment
The main implication of the High Court’s ruling under the Equality Act 2010 is the reinforcement of the anticipatory nature of the reasonable adjustment duty under section 20. The High Court has confirmed that the duty applies even in the case of an individual student as opposed to groups of students (e.g. who are blind or deaf or are wheelchair users).
In the case of an individual student, the duty arises from the point when the university knows, or should know, about the facts giving rise to the disability of that student. Most importantly, this actual or constructive knowledge does not depend on a formal or official diagnosis of disability such as by a medical or health professional or by the disability support services at the university. The student is not obligated to demand or discuss types of adjustments that may be needed.
Needless to say, unless overturned on appeal, the High Court’s bar for being found in breach of the anticipatory reasonable adjustment duty is low. This is confirmed by the reaction from the Higher Education sector, fairly summarised by the editors of the WonkHE blog: This case is representative of
“where we are right now across the sector – with widespread anecdotal reports of disengagement, and national statistics that… [point] 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.”
The national statistics are indeed troubling. One confidential survey in 2022 found that 57% of students self-reported a mental health issue, but only 27% were medically diagnosed. This self-reporting is high compared with the level of disclosure to universities, which in 2020-21 was just over 5%. The proportion of students suffering from mental ill-health may be even higher than 57%. A House of Commons Select Committee survey found that 86% of current students said they had suffered with poor mental health at university.
Implementing the anticipatory duty identified in Abrahart will pose challenges for the sector, especially if the above statistics are accurate. Challenges include:
- The difficulty of determining, in an ex ante way, which students suffer from subclinical nervousness about assessment, and which students should have adjustments applied to them due to their suffering from a disability (regardless of whether they ask for adjustments or accept adjustments offered); and
- The range in variety and severity of mental illnesses, and therefore the concomitant reasonable adjustments that should be anticipated by the institution; and
- Ensuring that the institution’s level of knowledge is sufficient, including coordinating the many agencies that play a role in the provision of mental healthcare to students, whilst balancing this with patient confidentiality and consensual disclosure.
The implications of the judgment are wide-ranging. Many higher education courses, including professional training courses for the legal profession, have compulsory oral assessments; music and drama courses have performance elements; while vivas are the standard mode of assessment for doctorates in the United Kingdom. And more institutions can be expected to introduce oral or performance-based assessments in an era when generative AI such as ChatGPT are undermining faith in traditional written assessment. Some of these courses will more easily be able to demonstrate that the method of assessment forms part of a competence standard. If they do, then this will satisfy the EqA requirements, but it raises the further question of a common law duty of care.
Rather unusually, the duty of care became a political hot potato following the County Court judgment in this case. Natasha Abrahart’s parents campaigned for a statutory duty of care to be placed on universities. The government responded saying that it was unnecessary, partly due to the existence of a ‘general duty of care’ at common law. It later conceded that this has ‘not been widely tested in the courts.’ Ahead of the Parliamentary debate to discuss the Abraharts’ petition on 5 June 2023, the Petitions Committee heard evidence – including conducting the survey mentioned previously wherein 86% of students said they suffered from mental ill-health. During that evidence, a wide variety of divergent views on the topic were canvassed.
Universities UK, the representative body for a large part of the sector, stated that a statutory duty would be inappropriate due to universities’
“general duty of care to their students – not to cause harm by careless acts or omissions – corresponding to their role and capabilities as settings for adult education. They also have further legal duties relating to contract, health and safety, human rights, the safeguarding of vulnerable adults and equalities legislation.”
Readers of this blog will be well aware that a duty of care cannot be brought into being solely by a statement that it exists – O’Rourke v Camden London Borough Council [1998] AC 188, 196 – but it is clear that Linden J did not relish the prospect of resolving an issue on which contrary views existed and that the government was disinclined to take up.
Duties of care at common law have been found in related, but not identical, contexts. For example, in the investigation of sexual assault (Feder & McCamish v Royal Welsh College of Music and Drama (Central London County Court, 5 October 2023)) and in the more ordinary cases of poor educational attainment, albeit the negligent delivery of contractual services is usually the focus there.
The distinction between acts and omissions in Robinson is an inherently unstable one, so it follows that the judge’s finding that this was a ‘pure omissions’ case is also unstable. However, the duty in the claimant’s Particulars of Claim is too broad and uncertain as pleaded. If a duty of care exists, it must be more limited. Furthermore, breach and causation are significant hurdles in claimants’ way.
The negligence route to recovery offers attractions to claimants, including Qualified One Way Costs Shifting and a longer limitation period (with discretion under section 33 of the Limitation Act 1980 to extend). Even if there is no further appeal in the instant case, undoubtedly other claimants will bring negligence actions against higher education providers in future. The practical upshot is that those acting for claimants in similar claims should, where applicable, advance claims both at common law and under the EqA. As already noted, there are potential procedural advantages to claiming in negligence despite the law being uncertain. By the same token, as Abrahart itself illustrates, there will be claims which could fail at common law but succeed under the EqA.
Dr Achas Burin, Barrister, 12KBW
Dr Shreya Atrey, Associate Professor in International Human Rights Law, University of Oxford
