No negligence finding, but university remains liable in tragic case

As outlined in our original blog "University liable following student’s tragic death", tragically Natasha took her own life during the second year of her physics course. She had experienced depression and social anxiety disorder, severely impairing her ability to participate in compulsory assessed oral interviews and a laboratory conference. Natasha’s administrator (her father) sued the University under the Equality Act 2010 and in negligence.

The County Court found that Natasha had a disability within the meaning of the Equality Act (namely a physical or mental impairment with a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities). Under the Equality Act, the County Court found the University:

• In breach of its duty to make reasonable adjustments
• Had treated Natasha unfavourably because of something arising in consequence of her disability
• Had indirectly discriminated against her

£50,000 damages were awarded, plus funeral costs. The claim that the University had a duty of care at common law was dismissed.

The High Court judgment upholds the County Court judgment on all main elements. There's too much in the appeal judgment to fully unpack here, but points of note include:

• Each case involving student disability turns on its particular facts, and the Equality Act provisions engaged. This can involve subjective elements. The Appeal Judge for example observed that a different court might have reached a different conclusion on aspects of the failure to make reasonable adjustments.
• The judgment considers the anticipatory nature of the duty to make reasonable adjustments in non-employment scenarios. The duty on institutions is to proactively consider reasonable adjustments, whether or not an issue has arisen in relation to a particular individual: “The more obvious and impactful the particular disadvantage, the stronger will be the case that it would be reasonable for an institution to anticipate it and take action”.
• What the institution knew or ought to have known about the student or prospective student will likely be relevant to what adjustments are reasonable. It's also relevant to whether disability discrimination has occurred. The Appeal Judge considered that as its awareness of Natasha’s disability built, the University ought to have become more proactive, such as by asking if it could discuss matters with experts or for her consent to commissioning a specialist report.
• While Natasha had been encouraged to obtain a medical diagnosis and other support, her disability rendering her unable to talk to strangers had likely led to her not engaging in those suggestions.
• The judgment considers the nature and effect of “competence standards”. In broad terms, competence standards provide a potential exemption to the duty to make reasonable adjustments in relation to disabled students. A competence standard is an “academic, medical or other standard applied for the purpose of determining whether or not a person has a particular level of competence or ability”. The Appeal Judge did not overturn the County Court ruling that the interviews and presentation were to test subject knowledge, not oral communication skills. They were therefore not a competence standard.
• The Appeal Judge felt it inappropriate to consider the appeal by Natasha’s father contending that the University owed a common law duty of care. It remains to be seen whether another County Court decision (Feder and McCamish v Royal Welsh College of Music and Drama) might lead to further developments in that area. Feder found that a duty to take reasonable care had arisen on the evidence, in relation to certain matters connected with disciplinary and investigatory procedures following alleged sexual misconduct.
• While there are some similarities between the three distinct claims made under the Equality Act, there are differences in how they operate.

Learning from tragedy

These issues may be explored further on any appeal to the Court of Appeal or in other cases.  Meanwhile, staff need awareness of relevant Equality Act definitions and duties (alongside other frameworks such as confidentiality, data protection and consumer law).  Natasha’s case highlights the risks in waiting passively for a formal diagnosis where a student’s possible disability indicates potential urgent or severe impacts that could also impair their engagement with academic processes and other available support. 

In that context, the Appeal Judge made the following observation concerning the appeal in relation to the Equality Act:

"For the avoidance of doubt, the lesson of this part of the case is not that due process and evidence are unimportant where the question of reasonable adjustments arises in this context. They are important. There will no doubt be many cases where it is reasonable to verify what the disabled person says and/or to require expert evidence or recommendations so as to make well informed decisions. A degree of procedural formality will also generally be appropriate for the reasons which the University advanced. But what a disabled person says and/or does is evidence. There may be circumstances, such as 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. That was the view of the County Court on the facts of this particular case".

The anticipatory duty to make reasonable adjustments should be part of institutional culture, while appreciating that this does not mean institutions are expected to anticipate the needs of every prospective student. Procedures and policies should be sufficiently flexible to accommodate and promptly implement reasonable adjustments where appropriate. This might particularly arise when urgent and/or severe impacts of an individual’s potential disability are known, or ought to be known.

Care also needs to be taken before deciding whether a standard actually amounts to a “competence standard” exempt from the duty to make reasonable adjustments. And even if a competence standard does apply, other duties in the Equality Act still need to be considered.

If you wish to discuss any of the issues outlined above in the context of your institution, please contact your usual Mills & Reeve contact or a member of our highly experienced education law team.