on Monday, 08 April 2024.
Recent and ongoing litigation is redefining the parameters of the relationship between universities and their students through scrutiny of the existence and scope of a legal duty of care. The government has decided against the creation of a statutory duty of care, but the County Court recognised such a duty in the case of Feder [2023]. Whilst the High Court declined to address the issue as part of the recent Abrahart appeal, it is already clear that students are entitled to expect their institutions to provide education and to look after them in exchange for fees.
How can you address this?
The HE sector has long acknowledged the existence of a moral duty of care to students but HEIs must now prepare for this duty to be recognised in law.
Feder indicates that if universities structure themselves as value-based communities based on reciprocal obligations, and engender expectations to their members, this should be underpinned in law. In more practical terms, on the facts of that case (which concerned the treatment of harm caused by one student to others), universities must discharge a duty to exercise reasonable care by taking reasonable protective, supportive, investigatory and, when appropriate, disciplinary steps. This also extends to associated communications, including honouring confidentiality assurances.
Abrahart raises issues beyond the disciplinary process and protecting students from one another, notably around academic assessment regimes and competence standards and the extent to which students may legitimately rely on their university to protect them from harm as part of the educational process.
To mitigate risk and demonstrate proactivity and responsible reflection on these issues, we recommend that HEIs:
Student sexual misconduct and harassment have been prominent issues in the HE sector for a number of years and the focus of the high profile Changing the Culture campaign by Universities UK.
Since publishing the first iteration of its Statement of Expectations in 2021, the Office for Students has confirmed its intention to take a more interventionist approach which is likely to lead to a new condition of registration. This will mandate minimum requirements for HEIs in England, including policies and procedures covering reporting, investigations and decisions about complaints. Just as significant will be the support made available to students and substantive training that goes beyond existing induction arrangements.
The linked High Court cases of AB -v- University of XYZ [2020 and 2023] provided rare judicial consideration of the adequacy of university disciplinary proceedings from a contract law perspective and confirmed that higher standards, consistent with established public law obligations, are now needed to ensure the delivery of a fair process.
How can you address this?
We recommend that HEIs:
In May 2023, the Higher Education (Freedom of Speech) Act 2023 became law, enhancing HEIs' existing duties and imposing requirements on Student Unions for the first time. During the next 12 months and beyond, HEIs in England will need to adapt to the new regime which will include a new OfS complaints scheme from 1 August 2024 and the monitoring of overseas funding as a means of combating potential threats to academic freedom and institutional autonomy from 1 September 2025.
How can you address this?
We recommend that HEIs: