Advice note for the higher education sector from the legal case of University of Bristol vs Abrahart

1. Natasha Abrahart was a Physics student at the University of Bristol. She took her own life in April 2018. She died on the day she was due to give a presentation before her peers and lecturers. She was known to be socially anxious and university staff were aware that she had not attended, or had been unable to speak at, several oral assessments earlier that academic year. She did not have a confirmed diagnosis but was under the care of the local mental health crisis team because of her mental health, which included social anxiety, depression, anxiety and suicidal thoughts and actions. The university was aware of this.

2. The university had considered making reasonable adjustments for Natasha and examining her through a different method. However, it had not taken steps to do so, or to discuss this with her. It said that she had failed to engage with its Disabled Students Service, which would assess what reasonable adjustments to put in place. It also argued that the method of assessment – an oral assessment – was a competence standard and therefore outside the parameters of the Equality Act 2010.

3. The court found that the education provider did not need to have formal knowledge of a disability and its effect for there to be a duty to make reasonable adjustments. Provided it has constructive knowledge of the effects of the condition, it should be able to deduce that a student has a disability. It is also no longer possible to argue that an education provider did not know, or could not reasonably be expected to have known, about a disability, as a defence to a claim of failure to make reasonable adjustments. This is because the duty to make reasonable adjustments is an anticipatory duty, meaning providers should have thought about what adjustments they ought to make to matters affecting all students, prior to becoming aware of a specific student’s disability.

4. However, the court found that where the evidence of a disability is apparent from the student themselves, for example through their behaviour or language, the education provider has knowledge of the student’s disability. The education provider can therefore be found to have discriminated against the student on the grounds of their disability.

5. 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 and providing auxiliary aids and services. Only “reasonable” adjustments have to be made. For example, if an adjustment is highly impractical, prohibitively expensive or an adjustment to a competence standard, it does not have to be made. The duty to make reasonable adjustments is anticipatory.

6. Student-facing staff cannot just pass on the duty to consider reasonable adjustments to a Disability Service but must consider what steps they should take in a timely way, to ensure the student is not disadvantaged because of their disability.

7. 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.

8. Methods of assessment, by which we mean the manner or mode in which a student’s level of knowledge or understanding or ability to complete a task is tested, will rarely, if ever, amount to a competence standard. They will therefore rarely, if ever, be outside the duty to make reasonable adjustments. 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 key questions for deciding if part of an assessment is a competence standard are:

a. What skill, competence, level of knowledge or ability is being measured?

b. What standards are being applied to decide whether a student has met the required level of that competence or ability?

c. What parts of the assessment are the method by which the student’s ability to meet the standards at (b) is tested?

9. There will be no discrimination on the grounds of disability under s15 Equality Act 2010 if the education provider did not know and could not reasonably be expected to know that the student was disabled. This is because there is no anticipatory element to discrimination on the grounds of disability.

Read the judgment here.

Knowledge of and evidence of disability

10. Ensure all processes and procedures, as well as common practices (including academic, administrative and relating to ancillary services, for example accommodation) are compliant with the Equality Act 2010.

11. Ensure all staff are trained on their duties under the Equality Act 2010. This includes academic staff, administrative staff with student facing roles, accommodation and support staff and members of staff responsible for addressing appeals, complaints and fitness to study procedures. This should include being trained on the duty to make reasonable adjustments before a full assessment by the Disability Service has taken place, in urgent or serious situations.

12. Student-facing staff should be trained to recognise symptoms of mental health crises and trained to know what to do next to obtain support for the student and remove additional stressors such as deadlines. Staff should be reminded that where a student has a severe or urgent condition, reasonable adjustments may be made without a diagnosis or medical or expert evidence.

13. Students who are not eligible for Disabled Students’ Allowance may still be disabled under the Equality Act and universities may have a duty to make reasonable adjustments for those students, for example where a student does not have a confirmed diagnosis of a disability. Many reasonable adjustments have little or no cost implications.

14. Where a student does not have a diagnosis of disability, but staff are concerned that the student is struggling or failing to engage, staff should take steps to determine whether a student may have a disability and whether to put reasonable adjustments in place. Such steps may include consideration of what the student says about their disability or health condition and how they present when speaking to staff and peers. Their behaviour may also be taken into consideration, for example, attendance at lectures, submission of work, general engagement with courses and other activities and whether there are discrepancies between certain modules or formats of assessment.

15. Put in place escalation procedures where staff fail to put in place reasonable adjustments and an assessment is imminent. It should be possible for staff or students to implement these procedures.

16. Ensure that a list of common reasonable adjustments is available to academic staff as well as Disability Services. This can include common reasonable adjustments by impairment type. It should focus on individual reasonable adjustments for individual students as well as anticipatory adjustments for groups of students.

17. Amend reasonable adjustments policies to ensure that staff and students are aware that reasonable adjustments must be made even where a student has not engaged with the Disability Service if there is an urgent or severe need to do so or the circumstances of the case demand it.

18. Amend reasonable adjustment policies to set out the process to follow in such a situation. This should include who, if anyone, needs to sign off a reasonable adjustment, and the process for communicating that such an adjustment has been made, including to the student.

19. Ensure that the Disability Service can meet its duties under the Equality Act 2010 in a reasonable and timely way. Should adjustments not be put in place in a timely way, consider allowing students to re-sit or re-submit assessments without applying for academic appeals and publicise this policy to students. Ensure that the Disability Service is also trained on those duties and on how to recognise symptoms of mental health crisis, as well as how to determine appropriate reasonable adjustments where a student has no formal evidence of their disability.

Competence standards

20. Review course criteria to check that competence standards are clearly defined, explained and justified, and that methods of assessment are not wrongly described as competence standards.

21. Where competence standards are set by Professional and Statutory Regulatory Bodies (PSRBs, for example the Nursing and Midwifery Council) universities should clarify with the PSRBs that the standard of attainment is being examined, not the method of assessment, or that the method of assessment is a key part of the competence standard.

22. Ensure that academic staff setting assessments know which aspects of their test are competence standards which must be met, and which aspects are the methods of assessment which may be reasonably adjusted.

23. Think about how methods of assessment can be adjusted to still test the relevant competences while accommodating disabilities. Ideally, compile a list of replacement types of assessment to accommodate specific disabilities. For example, for anxiety conditions consider allowing written answers via a messaging platform rather than oral answers, presenting to a small group or one to one or changing venues and times to accommodate reasonable adjustments. Other more relevant methods of assessment will be required for other forms of disability.

24. Ensure that academic appeals and complaints staff are trained to distinguish between a competence standard and a method of assessment and challenge the application of the competence standard defence where appropriate.

25. Where competence standards are appropriate, review them to ensure that they are not indirectly discriminatory. For example, a requirement for all car mechanics students to change a tyre in 10 minutes may be a competence standard, but it may be indirectly discriminatory towards students with a physical disability related to manual dexterity. The education provider would need to be able to demonstrate that the time limit is a proportionate means of achieving a legitimate aim for the standard not to be indirectly discriminatory.