24 July 2019

How is student debt affecting mental health?

With one in four people in the UK experiencing mental health problems, students are considered to be at particular risk, as they deal with the stress of exams, the pressures of social media, and the life-change which comes with starting university and taking their first steps into independent living. With that, of course, comes the responsibility of paying for their education. So what should universities be doing about it?

The problem is growing – tuition fees have risen three-fold since 2012 and in June 2019 the Government reported that more than £16bn is loaned to students each year by the Student Loans Company. The average UK student can now expect to graduate with debts of around £50,000, the highest level of debt in the developed world. Around 75% of students will fail to repay their loans within the 30-year repayment period and outstanding student loans in England at the end of March reached £121bn.

Student loans are not the whole picture – 19% of students interviewed by the NUS in 2016 admitted to using bank overdrafts that incur a charge, and 18% are using credit cards to finance their education. A considerable number of students (38%) had also considered resorting to unsafe or unhealthy jobs in order to help fund their higher education, including medical trials, nightshift work and sex work, even though these could affect their mental wellbeing and academic success.

Since fees tripled, there has been a 28% increase in students seeking counselling from university facilities, with students from the poorest backgrounds (the most likely to rely on the highest student loans) four times more likely to experience mental health issues than those from higher income families.

While students may have to accept their debts, it can impact long-term on their lives – after graduating, according to a review of US and UK research, it can have a negative impact on the ability to own a home, retirement planning, job satisfaction, a decline in entrepreneurial spirit, and for women, hesitation to get married and have children. The review also identified that those with student debt also experienced a negative effect on their mental health, both during university and after graduation.

So with such a detrimental effect on students’ wellbeing, what obligations do universities have to support students’ mental wellbeing, and offer advice regarding their finances?

What do universities have to do about mental health?

At the moment, the relationship between universities and its students is governed by a complex legal framework of common law, contract law and statute which includes the following:

  • Duty of care

Universities must be mindful of their duty of care to their students. This duty includes pastoral support, health and safety and wellbeing advice, and universities must ensure that their strategy for dealing with mental health issues is that of an ‘ordinary and competent institution’. If it is known that a student has a declared or diagnosed mental health issue, that duty of care is enhanced.

Whilst the extent of a university’s duty in respect of mental health has not yet been considered in court, there is a significant risk that a successful claim of negligence may be brought against a university if, on the facts, it has failed to meet its duty of care to its students. There may also be complaints under the university’s internal procedure and/or a referral to the Office of the Independent Adjudicator for Higher Education (OIAHE).

There is also an obligation under health and safety legislation to ensure that the university has taken all reasonable steps to ensure the safety of its students, including their mental health and wellbeing.

  • Breach of contract

The relationship between a university and its students is governed by a contract between them. The contract governs both academic and pastoral services offered by the university, and should set out the university’s powers in respect of fitness for study. Any promotional materials, university handbooks or even its website may be considered to have formed a part of its contract, especially if a student has relied upon representations made on these platforms (for example, about its student support facilities) when joining the university.

If a university breaches a term of that contract, by failing to provide services to a satisfactory standard, then the student can seek recourse either through the university’s complaints procedure and/or a referral to the OIAHE. Alternatively, a student could seek remedy by way of a claim at court for breach of contract, misrepresentation or breach of consumer law.

  • Equal treatment

Universities have an obligation under the Equality Act 2010 to ensure they do not discriminate against their students on the grounds of a protected characteristic. In certain circumstances, this would include mental health where such a condition satisfies the definition of disability (i.e. where a student is experiencing a physical or mental impairment that has a substantial and long-term negative effect on their ability to do normal daily activities). Universities must make reasonable adjustments for those students, and in the event that such adjustments cannot be agreed between the university and the student, litigation is likely to follow as the Equality Act does not define what is meant by reasonable.

As public bodies, universities must also comply with the public sector equality duty to ensure that they eliminate discrimination and adopt equal treatment when exercising their functions. This would apply not only to academic provision but also to making offers, enrolment procedures, pastoral care and accommodation.

  • Data Protection

Following the recent spate of student suicides which have been publicised, universities have faced calls to disclose students’ mental health data to parents or trusted people. However, as universities are obliged under data protection legislation to protect student confidentiality and privacy, particularly sensitive personal data such as their health records, they cannot currently disclose this information without consent, or unless there is an immediate risk of harm, such as self-harm or suicide.

Universities Minister, Sam Gyimah has recently announced that there will be a greater requirement in future on universities to dramatically improve their mental health offering for students, and in return, universities will be recognised as having met the new mental health standards. The government is working with mental health charity, Student Minds, in developing the new charter which will go live in the coming academic year, outlining the criteria that universities will need to meet to gain the recognition. Rosie Tressler, CEO of Student Minds, said:

“There is much work to be done to ensure that institutions make mental health a strategic priority, supporting the 1 in 4 students and staff experiencing mental ill health and the 4 in 4 with mental health, at universities across the UK.”

For more information, please contact Kristine Scott, Partner, Head of Education Sector, on kscott@hcrlaw.com or 01242 246 403

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Kristine Scott, Partner, Head of Education Sector
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