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Does the government have any legal basis for asserting a duty of care to students in higher education under Common Law?

  • 31 October 2023
  • By Robert Abrahart and Balwant Kaur

ForThe100 is a national group campaigning for higher education students to be owed a minimum standard of legal protection enshrined in a statutory duty of care. The group wants a clear and transparent legal requirement for institutions to act reasonably and responsibly, so that students are not harmed by things institutions do (acts) and/or things institutions fail to do (omissions). Most importantly this would mean that higher education institutions could then be held legally accountable for any negligence that resulted in reasonably foreseeable injury to a student.

The ‘reasonable person standard’ is a flexible and extensively used concept in English Law, dating from 1837. It compares observed behaviour against what an ordinary person in the street would consider to be reasonable conduct in a given situation and is used to determine a breach in duty of care. Clearly, there will be different standards associated with different categories of institutional, professional or commercial relationships along with different types and levels of harmful consequences. At this stage it is important not to conflate issues concerning the existence of a duty of care with the separate question of what standard of care that duty demands.

ForThe100’s campaign has just received a significant boost. On 5th October 2023 in Feder and McCamish v The Royal Welsh College of Music and Drama it was ruled that universities have a Common Law duty of care to carry out reasonable investigations when they receive allegations of sexual assault from their students (Paragraph 571 of the Approved Judgment). This however is Common Law, which is law created by judges and recorded in their written opinions. It is also a principle under Common Law that a court will only ever be able to recognise whether or not a relevant and specific duty of care existed in the circumstances of the case before it. Hence to develop anything resembling a more general duty, with wider applicability, by such means would require dozens of individual cases to be successful. Proceeding piecemeal, on a case-by-case basis, it will take decades to establish an overarching legal requirement. In the meantime, higher education students remain at risk of being wronged or endangered by their own institutions, with much associated mental and physical distress, which can sometimes lead to self-harm and/or a loss of life, and without any proper redress under the law.

The sector will obviously need to get to grips with what this latest judgment means in terms of the way in which associated complaints are handled. Two other points were noted in the judgment which resonate with duty of care. A large amount of material was disclosed in the hearing relating to other cases of female students reporting rape by a fellow student and how they were not informed that any disciplinary action could be taken (Paragraphs 73-86). The judgment also flagged up potential vulnerability issues in relation to international students as recruitment processes frequently persuade ‘parents that their children would be “safe and looked after”, especially as some would never have travelled abroad before’ (Paragraph 72).

So far, however, very little attention has been paid to the written reasoning behind this judgment and, in particular, to Paragraphs 440 and 441 concerning the government’s response to a recent petition calling for a statutory duty of care:

440. A decade later, on 29 May 2015, the Association of Managers of Student Services in Higher Education (‘AMOSSHE’) had what was probably a long breakfast meeting to discuss the issue. AMOSSHE subsequently produced a discussion note which, like the Claimants’ particulars, observed “[i]n essence, a university has a general duty of care at common law: to deliver its educational and pastoral services to the standard of the ordinarily competent institution, and, in carrying out its services and functions, to act reasonably to protect the health, safety and welfare of its students”, adding “[i]nstitutions also have a duty under the Health and Safety at Work Act 1974 to do everything reasonably practicable to ensure the health and safety of their students”.

441. This formulation was used in a 20 January 2023 Government response to an ePetition calling for a statutorily codified duty of care towards students and later in the Claimants’ pleadings. I agree with Mr Weetman [Counsel for the Defendant, Royal Welsh College of Music & Drama] that such a response has no legal weight, though a position commonly accepted across an industry after an issue has been closely examined is not so easily brushed aside, as discussed below.

The judge, in keeping with a recent House of Commons Library report on Student mental health in England (p.24), has again identified the source of the government’s ‘legal position’ as being output arising from a policy breakfast blog that was published by AMOSHEE on the internet in 2015. He also agreed with the institution’s barrister who argued in court that any such opinion had no legal standing.

The Government has not provided any legal authority for its assertion that a duty of care exists under Common Law. To do so would simply require it to identify the court, judge and case involved. Freedom of Information requests, submitted on behalf of ForThe100, for permanent recorded information on the source and legal authority of the government’s unexplained standpoint with regard to the law have also encountered stiff opposition from the ‘Higher Education Briefing Team’ [1,2]. They are claiming Legal Professional Privilege (LPP) which means the requested information is exempt from disclosure under FOIA Section 42.

LPP protects the confidentiality of communications between a client and their professional legal advisor (solicitor or barrister, including in-house lawyers). The Government’s argument for refusing to disclose any legal advice it has received and identify any legal authority supporting the existence of a duty of care is threefold:

… it is vital to the effective working of government that officials are able to consult lawyers in confidence, to obtain effective legal advice in a forum which is conducive to an open and candid exchange of views without fear of these conversations being disclosed.

Legal advisers fearing the disclosure of their advice is very likely to prejudice the quality of advice that they give which will in turn negatively affect the government’s ability to effectively conduct its business.

Government legal advisers also need to be able to clearly set out their advice, based on the information available, without fear that this advice might be disclosable and therefore open to unfair and unreasonable legal challenge. Defending unfair legal challenges would be a waste of public resources, and therefore not in the public interest.

ForThe100 counter-argued saying that it is in the public interest for public authorities to be accountable for the quality of their decision-making, and for them to be able to demonstrate that decisions have been made on the basis of high-quality legal advice. Transparency in the decision-making process and access to the information on which decisions have been based facilitate that accountability. Its list of important factors in favour of disclosure on this occasion was:

  1. Many young lives are being put at risk, estimated at 100 deaths per annum.
  2. The large number of people affected. There are 2.8 million students in higher education.
  3. The absence of litigation, since no relevant legal case against the government is involved.
  4. Lack of transparency in the government’s actions and reasoning. No legal authority is cited.
  5. Potential misrepresentation of advice that was given. It contradicts a recent court judgment.
  6. Furthering public debate: 128K people petitioned Parliament, and their request was denied.

A senior official has nevertheless decided, on balance, that the public interest in withholding such information outweighed the public interest in disclosing it.

The creditability of the Government’s response and foremost stated reason for not delivering clarity and certainty on existing law by implementing a properly codified, statutory explanation of a legal duty which it still maintains already exists is rapidly fading. To be clear:

  1. Universities need to know their legal obligations
  2. Staff need to know that they are acting lawfully
  3. Families need to know what they can expect
  4. Students need to know their civil rights

This legal uncertainty must be resolved and that is now a job for Parliament. The sector should be lobbying for a clear and transparent law.  Nothing more, nothing less. ForThe100 recently put this issue to a panel of four vice-chancellors at a HEPI Fringe Event. They responded, defensively, by insisting that a duty of care would not help – but did not actually answer the question that was asked. How can not knowing what the law is help anybody? So, going forward, we remain hopeful that someone in a position of power with sufficient authority and influence will do the right thing!

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