University Of Bristol V Dr Robert Abrahart – An Analysis Of The High Court’s Judgment

The recent High Court ruling upheld the County Court’s finding that the University of Bristol was in breach of its duty under the Equality Act 2010 to make reasonable adjustments for a 20-year-old student who suffered from severe social anxiety and depression.

This article summarises the High Court’s decision and the lessons for universities, particularly in dealing with cases of students with obvious disabilities.

Background – The Appeal

The High Court has issued its decision on the appeal by Bristol University (“the University”) against the County Court’s judgment that the university discriminated against Natasha Abrahart (NA) under the disability provisions of the Equality Act 2010, by:

• treating her unfavourably because of something arising in consequence of her disability;

• failing to make reasonable adjustments; and

• indirect disability discrimination;

thereby contributing to her death.

The university failed on all seven grounds of appeal.

NA’s father also failed in his cross-appeal against the County Court’s findings that the university had no duty of care to NA in the specific circumstances to NA.

Background – The Facts

NA enrolled on an undergraduate programme in physics in 2016. Her first year progressed well academically and there was no indication that she had a disability. During her second year (2017/18), NA was required, as part of her course, to give interviews lasting 25 minutes after conducting laboratory experiments. She was also required to participate in a second year laboratory conference in which groups of students gave PowerPoint presentations for 12 minutes followed by questions for three minutes. The interviews/oral presentations formed part of the university’s formal assessment of NA’s performance. NA could not cope with the interviews and oral presentations. She either said nothing during the interviews or did not turn up for them and received zero marks accordingly. Her mental health deteriorated as a result. On 30 April 2018, when she would have been expected to make an oral presentation at a conference with fellow students, she committed suicide. The medical evidence adduced during the County Court hearing agreed that NA suffered from “severe depression with prominent anxiety features” and social anxiety disorder, which could have been exacerbated by the fear of performing in oral assessments.

The Jurisdiction Of The High Court

The role of the High Court in this case was to act as a form of judicial review of the County Court decision. The High Court did not conduct a retrial, but scrutinised the County Court judge’s decision to assess whether it was reasonable for him to conclude as he did on the facts presented. The High Court could only therefore interfere with the County Court findings of primary fact if that finding was not supported by the evidence or if the decision was one which no reasonable judge could have reached.

As a result, the High Court judgment is a very technical analysis of the law and the County Court judge’s reasoning.

The High Court’s Judgment In Relation To Breach Of The Equality Act 2010

A. Reasonable Adjustments (Equality Act 2010 s20)

Where a university’s provision, criterion or practice (e.g. a method of assessment) puts a disabled student at a substantial disadvantage in comparison with students who are not disabled, there is a duty to take reasonable steps to avoid the disadvantage (Equality Act 2010 s20(3)). That duty does not apply to a competence standard, which is an academic, medical or other standard applied for the purpose of determining whether a person has a particular level of competence or ability (Equality Act 2010 Schedule 12 paragraph 4(2) &(3)).

A disability is defined as a physical or mental impairment which has a substantial, long-term and adverse effect on a person’s day-to-day activities (Equality Act 2010 s6(1)). It was accepted that NA’s depression/social anxiety and, in particular, her extreme fear of oral assessments, amounted to a disability for the purposes of the Equality Act 2010.

The Primary Consideration For The High Court Was Whether:

(i) oral assessments in the physics programme were a competence standard;

(ii) the university breached its duty to make reasonable adjustments.

(i) Competence standards

The university had sought to argue that “the assessment of a student’s ability to explain laboratory work orally, to defend it and to answer questions on it was a competence standard” because that ability “is a core competency of a professional scientist” and therefore exempt from the duty to make reasonable adjustments. NA’s father had argued, on the other hand, that the interviews and oral presentations were methods of assessment and therefore the duty to make reasonable adjustments had been engaged.

In order to determine the question, both the County Court and the High Court scrutinised the evidence submitted e.g. course documentation/handbooks, including information on intended learning outcomes; “The physics degree: graduate skills base and the core of physics” (the Institute of Physics 2014); and marking criteria.

The High Court agreed with the County Court’s findings of fact that what was being tested in the interviews and oral presentations was knowledge, rather than oral communication. The key question then was if what was being tested was knowledge, and the method of assessment put NA at a substantial disadvantage as a result of her disability, would it not have been reasonable for the university to assess that knowledge by other means, such as written responses?

(ii) Breach of the duty to make reasonable adjustments

The university’s case was that it did not have sufficient expertise, knowledge or expert evidence to be required to act in respect of NA and was not prepared to take any steps without a referral to its Disability Support Services and/or without medical evidence.

The County Court’s finding of fact was that the university knew that NA was suffering from some injury to her mental health from about the end of October 2017 and that it was connected to the laboratory interviews. By the end of November 2017 her behaviour was described as “objectively bizarre” and indicated that there was “something seriously amiss with her”. In December 2017, the Senior Tutor in the physics department suggested a referral to the University’s Disability Support Service. Thereafter, the university’s knowledge of these matters increased and it accepted that NA had mental-health problems and was genuinely unable to cope with the oral assessments.

The High Court agreed that it was not a defence that the university did not have a definitive diagnosis and that the cause of NA’s mental-health problems was not fully known. The duty to make reasonable adjustments is concerned with the effect of the provision, criterion or practice on the disabled person and the evidence indicated that the University was aware of that effect. While a precise diagnosis and an explanation of what had caused NA’s mental-health problems would have been of interest, those considerations were not of decisive importance to the duty to make reasonable adjustments under the Equality Act 2010. That duty was engaged once it was apparent that there was a genuine problem with NA’s mental health which was adversely affecting her ability to meet the requirements of the relevant Physics module.

The County Court’s decision that the university breached the duty to make reasonable adjustments was reasonable in the circumstances and took into account the University’s level of knowledge, as well as the lack of medical evidence.

Further, it was reasonable for the County Court on the evidence to reject the university’s argument that it could only make adjustments to the oral assessments following “due process” i.e. after an assessment by its Disability Support Service. A failure to engage with those processes was not a cogent reason for the university’s failure to make reasonable adjustments. The problem with the university’s reliance on its own regulations and policies was that they were not the law and by inference, they could be adjusted or waived to prevent NA suffering substantial disadvantage. Requiring an assessment by the Disability Support Service itself amounted to a provision, criterion or practice, which should have been adjusted, given that NA was unable, for reasons related to her mental-health, to engage with those processes and/or with strangers.

B. Discrimination Arising From Disability (Equality Act 2010 S15)

This type of discrimination arises when a university treats a disabled student unfavourably because of something arising in consequence of their disability, and the university cannot show that the treatment is a proportionate means of achieving a legitimate aim (i.e. the unfavourable treatment is objectively justified). Further, discrimination does not occur if a university does not know (i.e. no actual knowledge), nor could it reasonably have known (no constructive knowledge), that the student was disabled.

The university denied having actual or constructive knowledge of NA’s disability. The County Court concluded that the university had knowledge of the disability, though the High Court criticised the County Court judge’s reasoning for its lack of clarity regarding whether that knowledge was actual or constructive or why he concluded that the university had knowledge of the impairment, in particular that its impact was long-term, from late 2017. The High Court concluded that by February 2018, the university ought to have known that NA’s impairment was long-term and therefore that she was disabled. Thereafter, the university’s case under this section grew weaker.

The unfavourable treatment in question was the adverse marks and penalties NA received for her oral assessments. The university argued that the legitimate aims being pursued by the university in marking her down were the need to carry out a rigorous assessment of NA’s capabilities and to ensure fairness to all students; it would have been proportionate to vary the method of assessment only with proper evidence e.g. medical evidence.

The County Court concluded that had the university complied with the duty to make reasonable adjustments, NA would have attended the sessions and/or performed better in the adjusted assessment. The adverse marks and penalty could not be proportionate because the unfavourable treatment which was actually meted out would not have been necessary or appropriate. The implication is therefore that the failure to make reasonable adjustments meant that the university could not justify its unfavourable treatment of NA.

The High Court concluded therefore that the County Court’s conclusions were permissible and should not be interfered with, except to substitute a finding that the university engaged in unjustified unfavourable treatment on or after 13 February 2018, rather than earlier, as the County Court had found.

C. Indirect Discrimination (Equality Act 2010 S19)

Indirect discrimination occurs when:

• A university applies a provision, criterion or practice (e.g. oral assessment) to all students irrespective of their protected characteristic (e.g. disability);
• The provision etc. put students with a specific disability at a particular disadvantage;
• The provision etc. puts the individual claimant with the specific disability at that disadvantage; and
• The university cannot show that the provision etc. is a proportionate means of achieving a legitimate aim (i.e. it is objectively justified).

The High Court concluded that the County Court’s finding of indirect discrimination was based on a wrong approach because it had dealt with the issue of justification under unfavourable treatment (Equality Act 2010 s15) and indirect discrimination (Equality Act 2010 s19) “compendiously”. The High Court judge was not prepared, however, to allow the appeal because the university, which had the burden of proof, adopted the very same approach in its submissions in the appeal.

Lessons For Dealing With Disabled Students

Discrimination cases are fact-specific and the NA case is a simple one in many respects. It is about a university’s failure in the face of a disability that was clearly apparent to academics and related solely to oral presentations as a method of assessment. The lessons that must be considered in that context are as follows:

• The case concerned a clear and obvious disability that needed no expert diagnosis or skilled assessment. Its manifestation was its own evidence and required a simple response by the relevant academic department. Requiring a support plan in the circumstances was not necessary;
• The NA case did not conclude that requiring students to provide medical evidence or to undergo an assessment plan would always amount to discriminatory treatment. Many disabilities are hidden, complex and require expertise to identify their particular effects. It is not unreasonable in those circumstances for a university to request medical evidence or to require a student to undergo an assessment of needs. The process should be efficient, rather than unnecessarily onerous, and implemented as early as possible to prevent disabled students suffering disadvantage as a result of their disabilities;
• It is a university’s responsibility to consider, suggest and implement reasonable adjustments, not the student’s responsibility. The student may be consulted and required to cooperate in the production of a support plan, as well as be required to engage with the adjustments that have been identified;
• Universities should consider and implement at a local level reasonable adjustments in cases of uncomplicated and obvious disabilities without the need for a detailed support plan e.g. at department or school level, depending on the particular circumstances;
• Processes relating to hidden, complex disabilities should not be unduly onerous requiring students to make multiple applications to various committees, or to require students to provide the same evidence numerous times. A review of processes would be prudent in view of the NA case;
• Front-line academic staff should be provided with training to understand the disability-related requirements of the Equality Act 2010. They should be familiar, in particular, with the definition of disability so that they are sensitive to students with very obvious impairments and understand when their obligations to make reasonable adjustments crystallise;
• Academic staff, in particular, should have a clear understanding of the distinction between competence standards and methods of assessing whether students have acquired those competence standards. They should be prepared to adopt a flexible approach to the means by which learning outcomes are assessed, where existing means put a disabled student at a disadvantage. Some universities are diversifying the range of learning opportunities and assessment methods to develop an inclusive model of higher education in order to discharge the anticipatory duty to make reasonable adjustments. That approach may obviate the need for individual disabled students to disclose their hidden disabilities and to engage in protracted administrative processes to ensure that a university’s statutory duty is discharged. To resist claims of discrimination, it might also be useful to review programmes to distinguish those competence standards that are indispensable from those that are merely desirable, though to do so might require a significant resource.

The High Court’s Decision Regarding Negligence

NA’s father had tried to argue that the university had failed to discharge a duty of care to NA by not taking action to prevent NA’s self-harm. The County Court concluded that the essential characteristic of the law of negligence was that liability was imposed for inflicting harm, rather than for failing to prevent harm caused by other people (including harm caused to oneself). Further, the County Court rejected NA’s father’s claim that by providing ancillary services, such as learning support and welfare services, the university had assumed responsibility for NA’s health, safety and wellbeing. Such a duty would be a novel interpretation of the law and no such duty existed. Unhelpfully, the County Court judge then went on to say that “However, if I am wrong on the matter of the existence of a relevant duty of care, the question of breach of that duty arises. I refer to my findings of fact and judgment on the Equality Act claims and apply the same to breach of duty. There can be no doubt that the university would have been in breach.” That unsubstantiated comment was, no doubt, the impetus for the cross-appeal.

The High Court judge, however, declined to express a final view on the County Court’s findings in respect of negligence for a number of reasons including the following (non-exhaustive):

• The negligence claim was not fully argued by NA’s father in the County Court trial;
• The issue is one of potentially wide application and significance. Determining it would increase the risk of prolonging the High Court litigation, which the High Court judge regarded as undesirable;
• The County Court judgment did not contain the sort of comprehensive analysis of the evidence relevant to the negligence claim which would enable the High Court judge to rely on the County Court judge’s findings for the purpose of determining the issue of negligence;
• The High Court judge was very reluctant to proceed to adopt the County Court judge’s brief hypothetical finding that if there was a duty of care, it had been breached by the university for the same reasons that the duties under the Equality Act 2010 were breached. The suggestion that conclusions reached under the Equality Act 2010 could simply be applied to the common law (negligence/duty of care) was highly doubtful, notwithstanding that the burden of proof in negligence is on the claimant (i.e. NA’s father).
• There were various particulars of negligence which the County Court judge did not address. Any resolution of liability in negligence, had the High Court judge found that there was a duty of care, would therefore have been likely to require a re-trial.

The Court of Appeal’s powers include the power to order a new trial or a re-hearing, but it would not be appropriate to speculate on the outcome, should an appeal be submitted. It has been reported, however, that NA’s parents will continue to lobby Parliament for the imposition of a statutory duty of care on universities in respect of their students. I have previously written an article arguing that a duty of care is not an appropriate step to take