An analysis of the most pressing concerns based on insights from 1,000 UK business leaders.
Author: Phil Webster
Recent ruling on university duty of care and disability discrimination
The concept and application of a University’s duty of care to its students has been in much of the news recently.
The recent ruling in the case of University of Bristol v r Robert Abrahart ([2024] EWHC 299 (KB)1 has prompted further comment and debate on this subject.
The essence of this case was that whilst the court did not rule on whether the University was negligent in its duty of care, the court did find that the University had discriminated against the student in question, due to their disability. The disability in this case was the student’s mental health which included social anxiety, depression, anxiety and suicidal thoughts and actions. The court concluded that the University was aware of these and did not make appropriate adjustments.
There has been a recent Advice Note from the European Court of Human Rights (ECHR)2 on this case with supporting recommendations and advice to Universities.
The guidance and advice confirm that the duty to make reasonable adjustments is made up of three requirements that apply where a disabled person is placed at a substantial disadvantage when compared to a non-disabled person. The three requirements relate to:
- Changing how things are done
- Changing the built environment to avoid such a substantial disadvantage
- Providing auxiliary aids and services
In relation to making reasonable adjustments, what the education provider knew, or should have known, about a student’s disability, is relevant to what steps it should have taken and how reasonable those steps were. 'Reasonable' means in all the circumstances of the case and can take into account the education provider’s actual level of knowledge.
It has been further suggested from some quarters that Parliament could introduce a statutory instrument to define University’s duty of care to its students. Such an introduction of a statutory duty of care by UK Parliament to Universities in respect of its students would alter majorly the legal parameters and increase the likelihood and severity of claims.
Insurance Impact
Combined liability, professional indemnity (PI) and directors’ & officers’ (D&O) liability are insurance policies that are influenced by the concept of duty of care and legal cases which determine this.
These classes of cover are crucial elements to a university’s insurance programme and, to varying degrees, have seen changes in their cost, structure, and provision from the insurance market.
There are obvious concerns that an increasing focus around University’s duty of care and how this is defined in law and under statute may have a significant here.
Our recommendations in response are as follows:
- Monitor this situation carefully. Engagement with specialist solicitors with experience and knowledge of the higher education sector is crucial. This would be with a view to give the earliest possible advice on subsequent changes to the legal framework.
- Undertake liability reviews incorporating assessment of your institution’s systems and procedures around disability support. Ensure guidance or recommendations here are followed up and implemented.
- Assess any proposed changes to liability, PI and D&O cover contracts proposed by insurers.
- Nurture and develop new competitive markets. There have been new entrants on both liability, PI, and D&O classes. Wordings and cover extensions will vary between providers. In particular on PI the structure of self-insurance has changed significantly in recent years.
When tendering liability, PI, and D&O classes of insurance work with your broker to develop a ‘best of breed’ specification of cover to assess all bidders against.
Conclusion
The case of University of Bristol v r Robert Abrahart1 has reiterated that universities should ensure that their systems and procedures in relation to student welfare and disability support are properly implemented, regularly reviewed, and updated in line with sector guidance.
It is also incumbent on universities and their professional advisors to ensure there is appropriate legal defence and insurance cover supporting them in this regard.
