EHRC on the Abrahart case: a restatement of requirements to meet the Equalities Act 2010

It’s not often that a guidance note about an almost fifteen-year-old piece of legislation creates waves. However, the publication of the EHRC Note of Learning in July 2024 set a challenge for many higher education providers. The Note sets out what compliance with the Equality Act 2010 means in relation to disabled students. This blog sets out to catalyse the conversations and actions needed to navigate this complex area in your own context. 

To set the scene, the EHRC note distils the February outcome of the high court hearing on the case of Natasha Abrahart. At the country court stage, this case was previously reported on by Karen Stephenson for AUHA (Abrahart v The University of Bristol: Mental Health and implications for the sector – AHUA).   

The EHRC Note focuses on what the case tells us about knowledge of disability and competence standards. Importantly, it is written so that those without the relevant expertise understand the mechanisms that underly uninclusive situations, how they impact disabled students, and what it means to take an inclusive approach. The key takeaway point is that organisations need to consider carefully all the factors that might create barriers for disabled students.

Knowledge of and evidence of disability

The Note suggests that we need to change the onus for sharing evidence of a disability.  Higher Education Providers (HEPs) are clearly told that we have a duty to train staff on the Equality Act 2010 – and this is not only the superficial information provided by generic training, but the specific information on the duty to make reasonable adjustments. In particular, the Note says that compliance with the Act requires that all academic staff know that they have a duty to put in place adjustments before a diagnosis or full assessment by the Disability Service has taken place in urgent or serious situations. In addition, the Note goes on to say that all student-facing staff should be trained to recognise and respond to symptoms of mental health crises.

As well as new training, the Note weighs into the topical issue of resourcing of disability services, an area where there has been recent research but which seems to have been lost in an all-consuming debate about financial sustainability in UK universities. Moreover, the Note sets out that new information and processes are developed to allow a more responsive approach. Crucially, the Note requires that academic and other student-facing staff are active in responding to struggling students, where they should take steps to determine whether a student may have a disability and whether to put reasonable adjustments in place. 

To speed up the implementation of reasonable adjustments in urgent cases, providers should ensure that a list of common adjustments by impairment type is available to academic staff. This will be new to many providers, given that, in many, the focus has been on personalisation through a full assessment, and so generic lists have been eschewed and academics have become distant from decision-making.

The Note recognises that to cement more responsive decision-making, institutions must develop new processes and communication methods. Crucially, providers must put in place escalation procedures that can be followed where staff fail to put in place reasonable adjustments and where an academic assessment is imminent.

Competence standards

The second aim of the Note is to cut through the confusion about where adjustments can be made. Many readers will be aware that the Equality Act 2010 sets out the need to provide either reasonable anticipatory or responsive adjustments to course assessment methods.  However, adjustments cannot be made to the competence standard the course is aiming to deliver – with a competence standard defined as ‘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.’. Confusion about competence standards, learning outcomes and competences underpin confusion about where adjustments can be made, and this is a key driver of uncertainty and delay for disabled students.

The Note suggests that to comply with the Act, providers must review the criteria of each course, and the understanding of academic staff, to check that competence standards are not wrongly defined. Competence standards must be clear and legally justifiable, and in particular, must not be confused with methods of assessment. Where courses are regulated by Professional and Statutory Regulatory Bodies (PSRBs), providers should clarify with the PSRBs that the standard of attainment is being examined, not the method of assessment. 

To make this process more effective, providers are asked to support academic staff ideally by compiling a list of replacement types of assessment to accommodate specific disabilities.  EHRC have clearly been thinking about this in the round as they also set out that providers to train staff involved in academic appeals and complaints to distinguish between a competence standard and a method of assessment so that they can challenge decision making effectively.

Next steps

By emphasizing what providers should do in urgent and serious situations, the Note of Learning brings together the issue of mental health and disability. A large and growing proportion of all disabled students share that they have a long-term mental health condition, while the challenges of navigating the university environment can mean that disabled students are more likely to experience a mental health condition. Despite this significant overlap in many universities, mental health and disabilities teams have worked separately, and more fundamentally in the past have not always had a unified ethos.

The Note suggests that for compliance with the Act, there needs to be a new way of working to support students experiencing urgent and serious mental health crises. Specifically, it expects that the protections provided by the Act (such as anticipatory or reasonable adjustments) are put in place irrespective of whether a diagnosis or assessment has been made in such cases.

As well as expanding training generally on disability and mental health, this will require academic staff to feel comfortable with recognising where adjustments can be made in all cases, and, particularly in urgent and serious cases, putting in place adjustments before a diagnosis or assessment.  Escalation processes will be necessary, and improvements made to providers’ complaints and appeals processes. 

It is useful then that the UUK’s Blueprint encourages universities to continue to engage with the University Mental Health Charter and the Disabled Student Commitment. The Commitment in particular is establishing guidance on identifying competence standards. In addition, the Commitment is establishing communities of practice and special interest groups to bring providers together to share and identify best practice. This may be old legislation but it is clear that this new, clear-sighted view of compliance will need providers to work differently. Responsiveness, subject insight and compassion will need to be redefined and re-established. To do this well, the sector has always worked best by sharing experience and providers should look for opportunities to reach out through mission and interest groups. As Chair of DSC planning group, I encourage all HEPs to sign up to the commitment as a means through which we can work together in the sector in the interests of our students and give ourselves the best possible chance of creating a more inclusive future.

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