The Meaning of Disability
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Introduction
1 DDA 1995 makes it unlawful to discriminate against disabled persons in a number of different areas, including employment. The term “disabled person” is given a special statutory meaning. Unless the claimant can prove that he satisfies the statutory definition, he will not be able to bring a claim, however badly he is treated, even if he may be disabled for other purposes.
The statutory definition
Section 1
2 DDA 1995, s 1 provides as follows:
(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
(2) In this Act “disabled person” means a person who has a disability.
3 The words of the section therefore require a tribunal to ask itself four questions:
- Does the claimant have an impairment which is either mental or physical?
- Does the impairment have an adverse effect on the claimant’s ability to carry out normal day-to-day activities?
- Is the adverse effect upon the claimant’s ability substantial?
- Is the adverse effect upon the claimant’s ability long-term?
Schedule 1
4 Sch 1, para 2 provides that the effect of an impairment is only a long-term effect if-
(a) it has lasted at least 12 months;
(b) the period for which it lasts is likely to be at least 12 months; or
(c) it is likely to last for the rest of the life of the person affected.
5 Sch 1, para 4 provides that an impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following:
(a) mobility;
(b) manual dexterity;
(c) physical co-ordination;
(d) continence;
(e) ability to lift, carry or otherwise move everyday objects;
(f) speech, hearing or eyesight;
(g) memory or ability to concentrate, learn or understand;or
(h) perception of the risk of physical danger.
Past Disability
6 Modifications are made to the statutory definition by DDA 1995, Sch 2 which provides that, in the case of a past disability, the effect of an impairment is a long-term effect if it has in fact lasted for at least 12 months. If it ceases to have a substantial adverse effect within 12 months, it is to be treated as continuing to have that effect if that effect recurs.
Physical or Mental Impairment
7 The word “impairment” has been described by the EAT as meaning “some damage, defect, disorder or disease compared with a person having a full set of physical and mental equipment in normal condition.” It is not, however, defined in the DDA 1995.
Physical Impairment
8 Where the claimant is suffering from a physical impairment, there will generally be little difficulty in identifying the impairment in question. However, as noted in the 2006 Guidance, there may be adverse effects which are both physical and mental in nature. Effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa.
Mental Illness
9 It is no longer necessary to prove that a mental impairment is clinically well-recognised one. It is not necessary to have a mental illness to suffer from a mental impairment. Those with learning difficulties or specific conditions such as dyslexia will also be covered. However, a claimant who has a mental impairment which results from or consists of a mental illness will still have to prove that the mental impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
10 It is likely, however, that expert evidence will still be needed. See, for example, Dunham v Ashford Windows in which the EAT held that a tribunal hearing a mental impairment case based on learning difficulties should look for expert evidence of an identified condition.
Normal Day-to-Day Activities
What is Normal?
11 The obvious question which arises in considering whether an impairment has an effect on normal day-to-day activities is: Normal for whom? It is not relevant to enquire whether the activity is normal for most people. The most helpful way of considering what is meant by normal in this context is to contrast it with what is abnormal.
Work-Related Activities
12 The orthodox view was previously that work-related activities should be excluded from normal day-to-day activities. The relevance of work-related activities has now been recognised by the EAT in Paterson v The Commissioner of Police of the Metropolis. In this case, the claimant was a police officer who had achieved the rank of chief inspector despite the fact that he suffered from dyslexia. He complained that his employers had failed to make sufficient adjustments for him when undertaking examinations for promotion to the rank of superintendent. The EAT thought that carrying out an examination could properly be described as a normal day-to-day activity, even if it did relate to work. Since the effect of the claimant’s disability might adversely affect promotion prospects, then it must be said to hinder participation in professional life.
Substantial Adverse Effect
Meaning of “Substantial”
13 A substantial adverse effect in this context simply means one that is more than minor or trivial.
14 In order to identify whether an adverse affect is substantial the tribunal use a comparison exercise. The comparison is between the claimant’s ability to carry out normal day-to-day activities with the impairment, and his ability to carry out those activities without the impairment. How someone else copes with those same activities is not relevant. The fact that a person might have been an “over achiever” compared with the average person before being impaired is immaterial in assessing whether the impairment has a substantial effect.
Coping Strategies
15 If a person’s coping strategies are so successful that his impairment ceases to have a substantial adverse effect on his ability to carry out normal day-to-day activities, does that mean that he no longer satisfies the statutory definition?
16 The answer to that question depends on what it is reasonable to expect the disabled person to do. If a person can reasonably be expected to behave in such a way that the impairment ceases to have a substantial adverse effect on his ability to carry out normal day-to-day activities, he would no longer meet the definition of disability.
Deduced Effects
17 Where a person undergoes medical treatment (or takes other measures) that improve their abilities the tribunal should consider what the claimant’s abilities would be without that treatment. An exception is made in the case of glasses or contact lenses. A claimant cannot claim to be disabled within the meaning of the DDA 1995 if wearing glasses or contact lenses would correct the impairment.
Progressive Conditions
18 Special provision is made for progressive conditions by DDA 1995, Sch 1 para 8(1) which provides that where
(a) a person has a progressive condition,
(b) as a result of that condition, he has an impairment which has (or had) an effect on his ability to carry out normal day-to-day activities, but
(c) that effect is not (or was not) a substantial adverse effect,
he shall be taken to have an impairment which has such a substantial adverse effect if the condition is likely to result in his having such an impairment.
Severe Disfigurements
19 An impairment which consists of a severe disfigurement is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities.
Long Term Adverse Effect
20 As noted in paragraph 2.3 above, the effect of an impairment is treated as being a long-term effect if it has lasted at least 12 months or is likely to do so. In addition, DDA 1995, Sch 1 para 2(2) provides that where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.
Date of Assessment
21 It is now clear that the decision which the tribunal is required to make as to the likelihood of recurrence should be based on the evidence available at the time, and not on what in fact happened after the relevant date See Richmond Adult Community College v McDougall.
Excluded Impairments
22 The Disability Discrimination (Meaning of Disability) Regulations 1996 provide that certain conditions are deemed not to amount to impairments for the purposes of the DDA 1995. These conditions are as follows:
- addiction to, or dependency on, alcohol, nicotine, or any other substance;
- hay fever;
- tendency to set fires;
- tendency to steal;
- tendency to physical or sexual abuse of other persons;
- voyeurism.
Persons Deemed to be Disabled
Blind and Partially Sighted Persons
23 A person who is certified as blind or partially sighted by a consultant ophthalmologist, or is registered as such by a local authority, is deemed to meet the statutory definition.
Cancer, HIV and Multiple Sclerosis
24 As already noted above, cancer, HIV infection and multiple sclerosis are now deemed to amount to disabilities from the point of diagnosis.