Lessons for Universities: the Appeal in Abrahart
The mental health of university students is an increasing source of concern. Rates of reported mental illness among students have skyrocketed in recent years – 5.5% of all home students in 2021/2022 reported having a mental health condition, a 350% increase since 2014/2015.[1] This is accompanied by an increasingly negative public perception of the wellbeing support provided by universities, in light of a number of high-profile inquests into student deaths (despite the most recently reported suicide rate amongst students being the lowest for a decade and significantly lower than the rate among the general population) and students’ own dissatisfaction with the support on offer.[2] In this context, the recent decision of the High Court in University of Bristol v Abrahart [2024] EWHCA 299 (KB) is of interest to higher education providers, lawyers and the general public alike.
Facts
The tragic facts of Abrahart are well known. Natasha Abrahart was a physics student at Bristol University. In her second year, she began to develop severe anxiety in respect of oral interview assessments, which were a mandatory component of one of her modules. University staff made efforts to engage Ms Abrahart to find out the source of her anxiety and what support might help her, with limited success. However, no adjustments were made in respect of the requirement to participate in oral assessments. Sadly, on the day of the final oral presentation, Ms Abrahart took her own life.
The Decision of the County Court
Ms Abrahart’s father subsequently brought a claim against the University of Bristol (“the University”) for damages under the Equality Act 2010 and in negligence at common law. The claim was heard by Judge Ralton in May 2022 at Bristol County Court.
In respect of the claims under the Equality Act 2010 (“the Act”), Judge Ralton found three breaches of the Act. First, he found that the University had breached its duty to make reasonable adjustments pursuant to section 91(9) of the Act – the requirement for oral assessment did not amount to a competence (which is exempt from the requirement for reasonable adjustments) but rather a method of assessment which substantially disadvantaged Ms Abrahart and should have been adjusted. Second, he found that the University had indirectly discriminated against Ms Abrahart contrary to section 19 of the Act with no justification for doing so. Third, he found that the University had directly discriminated against Ms Abrahart by marking her down and imposing penalties in respect of her non-attendance at oral assessments with the knowledge that she was suffering from a disability and with no justification for doing so.
In respect of the claim in negligence, Judge Ralton held that the University did not owe Ms Abrahart a duty of care either by virtue of her status as a student or because of any assumption of responsibility for her wellbeing. No detailed reasoning was provided for that conclusion, other than by oblique reference to a number of cases concerning ‘omissions’ and assumptions of responsibility. However, it was held that, if any such duty did exist, the University was in breach for the same reasons it was in breach of the Equality Act 2010.
The Appeal
The University sought to appeal the decision to the High Court, broadly on the grounds that Judge Ralton had reached incorrect decisions as to whether the duty to make reasonable adjustments had been breached, whether the University had actual or constructive knowledge of Ms Abrahart’s condition and whether the discrimination against Ms Abrahart was justified. Ms Abrahart’s father cross-appealed in respect of the decision on negligence.
In the High Court, Mr Justice Linden upheld the findings of the lower court that the University had breached its obligations to Ms Abrahart under the Act. As regards reasonable adjustments, it was emphasised that the duty to make reasonable adjustments is an anticipatory one; it is expected that universities will consider proactively what adjustments may be reasonable regardless of whether an issue has yet arisen in respect of a particular student. Students are not required to identify their disability or the reasonable adjustments required to the university in order for the duty to arise. Accordingly, “the existence of the duty does not depend on the education institution’s actual or constructive knowledge of the claimant’s disability and its effects”. The university’s knowledge is, however, relevant to the question of what reasonable adjustments would be. In this case, the University argued that they required expert advice in the form of a disability assessment and/or medical evidence before adjustments could be made which would reduce the rigour of the assessment. It was, held, however, that this was not correct; it was clear to the University even in the absence of a diagnosis that Ms Abrahart was suffering from genuine mental health issues which affected her ability to participate in oral assessments. It was therefore reasonable for adjustments to be made.
Further, the finding that the University had directly discriminated against Ms Abrahart was also upheld. Pursuant to section 15(2) of the Act, the University could avoid a finding of direct discrimination if they could show that they did not and could not reasonably have known of Ms Abrahart’s disability. However, it was held that the University did know that Ms Abrahart was suffering from a mental health problem which was clearly viewed by staff as a potential disability under the Act. Further, Mr Justice Linden upheld the conclusion of the lower court that no legitimate justification had been identified for the discrimination (which also addressed the appeal in respect of indirect discrimination). Accordingly, the appeals relating to the Act were dismissed.
Mr Justice Linden did not express a view on whether the University owed Ms Abrahart a common law duty of care. He noted that “the issue is one of potentially wide application and significance” and that the issue had not been fully argued (or addressed by the judge) at first instance. He did, however, consider that Judge Ralton had been wrong to conclude that, if a duty of care did exist, it would be breached for the same reasons given for breach of the Act; “the suggestion that conclusions reached under the Equality Act 2010 can simply be mapped across to the common law…is highly doubtful”. Importantly, Mr Justice Linden hinted that the issue would be ripe for consideration by the Court of Appeal in due course.
Comments
The decision of Mr Justice Linden holds important lessons for both lawyers and higher education providers.
For lawyers, the Abrahart decision is a useful reminder that an appeal is not an opportunity to reargue a case at first instance. Mr Justice Linden was critical of the University for attempting to reargue factual issues which had been decided by Judge Ralton (for example, whether the requirement for oral assessment amounted to a competence standard or method of assessment). It was therefore correspondingly important that both parties argued their cases fully at first instance. For example, although the University argued on appeal that Judge Ralton had not adequately considered the possibility of legitimate justification for discrimination against Ms Abrahart, this argument was hampered by the fact that counsel for the University had not made detailed submissions on legitimate justification at first instance.
For higher education providers, the ramifications of Abrahart are significant. It is clear that universities must be proactive in identifying students who may require reasonable adjustments under the Act. There may be cases where it is necessary to obtain expert evidence in order to make informed decisions about whether adjustments are required and, if so, what they should be. However, there may also be cases in which it is sufficiently obvious from a student’s presentation alone that adjustments are reasonable; as Mr Justice Linden put it, “what a disabled person says and/or does is evidence…there may be circumstances, such as the 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”. In practice, however, this may be difficult for university staff to achieve, as restrictions on data-sharing make it challenging to communicate the need for reasonable adjustments in circumstances where (unlike in Ms Abrahart’s case) there is no risk to life and the student does not consent to information about their disability being shared.
It also follows from this analysis that universities cannot rely solely on their own procedures to demonstrate compliance with the Act. The argument that an institution needs to comply with due process in order to maintain fairness and academic rigour is likely to fall on deaf ears unless it can be shown that those processes, when applied to an individual student, are themselves compliant with the Act. University wellbeing and disability procedures therefore need to be flexible and capable of being adapted or even set aside when circumstances demand.
Lastly, the question of whether universities owe students a duty of care at common law is likely to continue to be litigated. The Abrahart decision comes shortly after the decision of Recorder Halford in Feder & McCamish v Royal Welsh College of Music and Drama (Central London County Court 5 October 2023), in which it was held that a higher education institution owed students a duty of care to carry out reasonable investigations into allegations of sexual assault based on specific assumptions of responsibility made to individual students. As Mr Justice Linden recognised in Abrahart, the possible extension of a duty of care has wide ramifications for students and for the higher education sector and is likely to be hotly contested in future. Higher education providers and lawyers alike should watch developments in this area with interest.
[1] CBP-8593.pdf (parliament.uk)
[2] ‘They made me feel invalid’: Shocking new figures show scale of student mental health crisis (thetab.com)
