The Secretary of State for Education was recently asked in Parliament if she would meet with campaigners to discuss the “duty of care” owed by higher education providers to their students.
Janet Daby – the Minister for Children, Families and Wellbeing in the Department for Education (DfE) responded on her behalf, and also outlined the department’s current view on the law for holding negligent institutions to account.
At first glance, her response was unhelpful – arguing the department’s position is that a duty of care in higher education may arise in “certain circumstances”:
Such circumstances would be a matter for the courts to decide, based on the specific facts and context of the case being considered, and will be dependent on the application by a court of accepted common law principles.
It would be easy to argue that lawmakers, including Janet Daby and skills minister Jacqui Smith, should not simply defer to the courts on matters of law and institutional accountability.
After all, lawmakers have the power to create laws – so overall responsibility doesn’t rest solely with judges and their judicial interpretation of common law principles.
But perhaps Daby’s response was more helpful than it looked – because it directly confronts misleading statements that have persisted since 2023, particularly those made by former Minister Robert Halfon.
Although some might view her answer as a cautious response, in reality, it was a breath of fresh air – a much-need step in addressing the confusion that has clouded our understanding of legal responsibilities in higher education.
From Halfon’s Law to Daby’s Law
To grasp the significance of Janet Daby’s correction, we must first revisit the origins of the confusion – what I’ll call here Halfon’s Law.
Introduced by Robert Halfon in 2023, it laid the foundation for a misrepresentation of the legal duties owed by higher education providers to their students. Halfon’s Law is a belief that stemmed from a misunderstanding of online material, initially presented in a now-deleted AMOSSHE blog that was published in 2015.
In responding to the 128,000+ registered voters who signed our parliamentary e-petition calling for a statutory duty of care, Halfon asserted his department’s belief that universities already owed their students a broad and generalised duty of care. He 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.
At first glance, this might sound reasonable, but in truth, it was far from accurate. By conflating a general moral and legal principle – to act in a way that avoids causing harm to others – with a formal, court recognised duty of care that only arises in specific, legally-defined circumstances and relationships, Halfon introduced a dangerous oversimplification.
It was a distortion used to justify dismissing the petitioners’ call for a statutory duty of care, effectively silencing important conversations about the protections that students need.
Halfon’s Law, with the documented source having now been quietly removed from its original website, was a misstep in understanding the complexities of legal responsibilities in higher education. Its fall from grace is something to be celebrated.
Enter Daby’s Law: Janet Daby’s response marks a shift towards legal clarity. A duty of care may arise in certain specific circumstances, but ultimately, it is the courts that will determine the existence and application of any such duty on a limited case-by-case basis – should lengthy and costly litigation ever actually occur.
As it stands therefore, nobody truly knows what protections are in place, leaving students vulnerable, and institutions at risk of being punished for failing to do the right thing. As such, Daby’s position not only corrects the errors of Halfon’s Law, but also raises significant concerns, including the urgent need for a properly codified duty that both universities and their students can understand.
The advocacy that led to Daby’s law
Daby’s correction of the record didn’t happen by chance. It was the direct result of relentless behind-the-scenes efforts from advocates, especially ForThe100, who recognised the need to dismantle Halfon’s contention? – since it was a significant barrier preventing meaningful progress.
For too long, Halfon’s Law and its sweeping and factually incorrect statements had clouded the conversation around student safety and wellbeing, effectively stopping us from moving forward and pushing for the protections students desperately need. Too many policymakers thought it true – and so dismissed the need for a dedicated duty.
The subtle shift in content and tone, while preferable to outright inaccuracy, introduces its own set of challenges. Without clear or codified guidance, students, families, and institutions are left to navigate a murky and uncertain legal landscape.
That vagueness is deeply problematic. It means widespread confusion about rights and responsibilities, leaving institutions uncertain of their obligation, and exposed to unforeseen legal liabilities – while students are left unsure of the protections they can depend on.
Worse, the lack of clear, direct, and upfront standards is a reactive rather than proactive system, shifting the burden onto individuals to seek legal recourse only after harm has occurred.
This approach neither prioritises prevention nor ensures accountability, leaving gaps in a system meant to put students first.
It is now crucial that the government corrects the public response to our petition without delay. Halfon’s Law remains embedded in the official narrative, and its continued presence in government communications perpetuates confusion, and blocks meaningful progress.
More importantly, for over five decades, students have been without adequate legal protection, and this gap continues to undermine their safety and wellbeing.
Nobody should be reassured by a duty that arises in “certain circumstances” where those circumstances would be a matter for “the courts to decide”. Students and universities need instead to know where they stand – with the same sort of clarity on offer for the duty of care that universities as employers owe to their staff.
The next step is for the government to act – taking concrete steps toward enacting statutory reform that holds higher education institutions accountable for their acts and omissions with regard to student safety and wellbeing, and giving students and their families the confidence that when they enrol into a university, they know the minimum “duty of care” that they can actually expect.
