Case for university statutory duty of care towards students raised in parliament

Stephanie Badrock of Pinsent Masons was commenting after parliamentarians discussed campaigners’ proposals for a new statutory duty of care for higher education students.

Universities currently do not have the same defined legal duty for safeguarding their students as colleges and schools have. They have a more limited duty of care to ensure that students have a safe environment in which they can live, work and study. Families whose children died by suicide are behind a campaign calling for higher education (HE) providers’ duties to extend further.

Their online petition, which was signed by more than 100,000 people, triggering the debate in parliament, said: “The mental health, safety and well-being of [higher education] students should be a government priority. Student engagement, retention and success should be another. Both are indisputably linked to the duty of care students receive. A duty of care already exists for staff, and for students under the age of 18 in HE. There should be parity in duty of care for all members of the HE community.”

In its response to the online petition, the Department for Education said imposing a statutory duty of care on universities “would be a disproportionate response”, citing an existing duty of care it said universities are under in respect of student wellbeing.

“Higher education providers already have a general duty of care not to cause harm to their students through their own actions,” it said. “Higher education providers do have a general duty of care to deliver educational and pastoral services to the standard of an ordinarily competent institution and, in carrying out these services, they are expected to act reasonably to protect the health, safety and welfare of their students. This can be summed up as providers owing a duty of care to not cause harm to their students through the university’s own actions.”

In the debate on Monday, higher education minister Robert Halfon reiterated the government’s position that it does not believe introducing a new legal duty of care is the best way forward, though he left open the possibility of legislating in future. However, he said he would order a national independent review of university student deaths to learn from the tragic events of student suicide and would establish a new Higher Education Mental Health Implementation Taskforce to work with bereaved parents, students, experts and charities. Halfon has also written to all universities asking them to adopt the Mental Health Charter by September 2024 and threatened new licensing conditions if they do not meet the challenge.

The duty of care owed to students by universities was explored in detail recently in a case brought against The University of Bristol by the family of a student named Natasha Abrahart, who tragically died by suicide while studying at the university. In that case, the judge found no duty was breached by the university, although he said that if there had been a duty of care it would have been breached for the same reasons as the claim which succeeded under the 2010 Equality Act.

Badrock said: “The outcome of yesterday's debate before parliament could have significant implications for universities and pushes forward the campaign by bereaved families calling for a duty of care for universities to protect their students from reasonably foreseeable harm, caused by either direct actions or a failure to act. While a change in legislation does not appear to be the direction of travel from the government at this stage, the issue of student wellbeing will continue to be a high priority for universities and will shine a brighter light on the more limited duty of care already owed by universities to ensure that students have a safe environment in which they can study, live, and work.”

“Despite the government's view that a legal duty of care is not the most effective way forward, the conclusion of the parliamentary debate gave a clear indication that if certain steps are not taken by institutions, for example signing up to the Mental Health Charter, and the response is not satisfactory, the government would ask the Office for Students to impose a new licensing condition on mental health,” she said.