Duty of Care in the Higher Education Sector

Author: Phil Webster

There has been much change in the Higher Education sector in recent years. None more so than in approaches and attitudes to the concept and application of a university’s duty of care to its students.

There are a number of drivers for this – a post-pandemic focus on avoidance of social isolation, a broader sense of the student experience and a recognition of the potential vulnerabilities of young people away from home, often for the first time, attending university.

The Office for Students, as the industry regulator, has made clear that they feel that universities have work to do on certain aspects around meeting their duty of care, particularly in emerging exposure areas such as mental health. It is clear that institutions, as many bodies have, expanded their mental health support services. This includes increasing the availability of counselling services, providing access to mental health professionals, and offering online resources and helplines. Some institutions have also introduced peer support programs and mental health first aid training.

There have also been a series of high-profile incidents where students have been harmed, injured and even in some very sad cases died in what would be classed ‘extra-curricular’ activities. It is difficult in these circumstances to envisage the control a university has over the behaviour and attitudes of students, but it is becoming increasingly clear that courts, governments and public opinion believes that universities can do more to prepare, educate and support its students.

The attitude towards ‘consent’ around relationships and sexual engagement has changed with most new students now asked to attend talks and discussion groups on what is deemed acceptable and underlining the implications around non-consensual activity.

We have also witnessed an evolution in approaches to what is required of students academically and what an institution’s duty of care here is to potentially vulnerable or ‘at risk’ individuals. The recent ruling in the case of University of Bristol -v- 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) on this case with supporting recommendations and advice to universities².

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 universities 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.

Impact

There are obvious concerns that an increasing focus around universities duty of care and how this is defined in law and under statute may have a significant impact here. Universities who want to respond positively to these changes should consider the following steps:

• 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 comprehensive reviews incorporating assessment of your institution’s systems and procedures around disability support. Ensure guidance or recommendations here are followed up and implemented.
• Ensure there is a clear, consistent and well communicated strategy on supporting students and their wellbeing. Where there is engagement with external parties on this to make sure they are on-board with your institution’s own ethos and objectives.
• Assess any proposed changes to Liability, PI and D&O cover contracts proposed by insurers. 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.

There has been a sea change in attitudes, approaches and expectations around how a universities duty of care should be discharged, and it has emphasised the need 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.