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2006 Guidance on definition of disability

This has been in force since 2006, but will be replaced by new guidance with effect from 1st May 2011. The 2006 guidance is available on the EHRC website (pdf file). It is not an authoritative statement of the law, but tribunals must take it into account where relevant. For Northern Ireland there is different guidance, issued in 2008.

This 2006 guidance is replaced by the 2011 guidance with effect from 1st May 2011. However, the 2006 guidance still applies where the act complained of happened before 1st May 2011, or is a continuing act which began before 1st May. (SI 2011 No. 1159 (link to legislation.gov.uk); and article 13 of SI 2010 No. 2317 (link to legislation.gov.uk))

The full name of this 2006 document is the Guidance on matters to be taken into account in determining questions relating to the definition of disability. It is crucial in giving tribunals more detailed guidance on how the very general wording of the legislation should be applied. It is not an authoritative statement of the law, but tribunals must take it into account where relevant. However, the House of Lords declined to take the guidance into account when it came to statutory interpretation - SCA Packaging v Boyle (2009).

The 2006 version was produced after consultation. The British Stammering Association sent in comments on the consultation draft, many of which are reflected in the final document.

The following is an outline of some of the more important points in the guidance as regards stammering:

Taking a longer time

The guidance at para D25(i) says that it would be reasonable to regard as having a substantial adverse effect "taking longer than someone who does not have an impairment to say things."

This should very often apply to a stammer. The wording does not necessarily mean a tribunal must regard taking a longer time as a substantial effect, but that it would be 'reasonable' to do so.

Examples in 2006 guidance:

Para D25(i): "A man has had a stammer since childhood. He does not stammer all the time, but his stammer can appear, particularly in telephone calls, to go beyond the occasional lapses in fluency found in the speech of people who do not have the impairment. However, this effect can often be hidden by his coping strategy. He may try to avoid telephone calls where he believes he will stammer, or he may not speak as much during telephone calls. He may sometimes try to avoid stammering by substituting words, or by inserting extra words or phrases.

".... it would be reasonable to regard these effects as substantial adverse effects."

Para D25(i): "It would be reasonable to regard as having a substantial adverse effect:
... taking longer than someone who does not have an impairment to say things.

Para B8: "In order to manage her condition, a woman with a persistent stammer uses coping strategies, such as avoiding using the telephone, not giving verbal instructions at work, limiting social contact outside her immediate family, and avoiding challenging situations with service providers. As a consequence, it may not be readily obvious that she has an impairment which adversely affects her ability to carry out normal day-to-day activities.

"In determining whether she meets the definition of disability, consideration should be given to the extent to which it is reasonable to expect her to place such restrictions on her working and domestic life."

BUT the text of Para B8 also says: "It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person."

Avoidance/concealment strategies

The longer example in para D25(1) about telephone calls, quoted in the box on the right, is excellent in setting out how people who stammer can try to hide the effects of their stammer. It is helpful in indicating that avoidance strategies (eg word substitution, avoiding situations) - or the effects they hide - can potentially be a substantial effect on normal day-to-day activities within the DDA. This example is different in the Northern Ireland guidance.

The text of para B8 is also helpful in that it says:

For more, see Hiding the stammer.

Unfortunately there is also an example on stammering and avoidance in para B8. While the example is helpful in acknowledging how a stammer can have hidden effects, the final sentence is very problematic. It talks about tribunals looking at the extent to which it is reasonable to expect a person who stammers to place restrictions on their working and domestic life, and seems to have no legal basis. I suspect (and hope) the final sentence will not be found useful by tribunals. For more, see Example in para B8.

Minor stammer

The 1996 guidance said that a 'minor' stammer is not within the DDA.

The revised guidance, whilst not clear on this, can at least be seen as consistent with the idea that any stammer (in a clinical sense) is within the Equality Act if it affects normal day-to-day situations. The major example in para D25(1) talks about a person "whose stammer can appear, particularly in telephone calls, to go beyond the occasional lapses in fluency found in the speech of people who do not have the impairment". This view is also consistent with para B1.

On the other hand, inability to articulate fluency due to a lisp 'or other minor speech impediment' is said not to be within the Equality Act. (This issue does not arise in the Northern Ireland guidance.)

How tribunals interpret the new guidance remains to be seen.

For more, see Is any stammer covered?

Situational nature of stammering

How widespread need effects be?

The phone call example in para D25(1) may be helpful in arguing that substantial effects in just one type of normal day-to-day activity, eg making phone calls, can be sufficient. That example focusses on telephone calls, and also para D3 on shopping. This is very welcome, though the position is not clear and again we need to see how tribunals apply the new guidance.

The point is not so important in practice if 'substantial' stammering need only go beyond the occasional lapses in fluency most people have, as people who stammer will commonly do this in various normal day-to-day situations.

For more, see How widespread need the effect be?

Public speaking

Para D25(1) says that inability to speak in front of an audience simply as a result of nervousness is not a disability. In the 1996 guidance, any inability to to speak in front of an audience was said not to be a disability. Even under the revised guidance, the public speaking would presumably still have to be a 'normal day-to-day activity' in order for speech difficulties there to be relevant. However the revision seems to imply that public speaking can at least sometimes be seen as a normal day-to-day activity, and there are indeed court decisions which support this argument: see Speaking to an audience.


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Last updated 3rd October, 2010