2006 Guidance on definition of disability

This replaced previous Guidance as from 1st May 2006 and is available at the DRC's 'Guidance' web page. 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.

The full name of this document is the Guidance on matters to be taken into account in determining questions relating to the definition of disability. It is very important 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.

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 original consultation documents are at www.dwp.gov.uk/consultations/2005/ - scroll down to consultation date 05/09/05.

The 1996 version (and not the new version) continues to apply in relation to any act of discrimination which occurred before 1st May 2006 - see SI 2006/1005 and SI 2006/1007.

The following is an outline of some of the more important changes as regards stammering:

Examples in revised guidance:
Para D25(1): "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 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.

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

it would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person; and
account should be taken of where a person avoids doing things which cause substantial social embarrassment. This is clearly applicable to people who stammer.

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 DDA 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 DDA.

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.

For more see Speaking to an audience.

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2006 Guidance on definition of disability

Minor stammer

Situational nature of stammering

How widespread need effects be?

Public speaking

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