2011 Guidance on definition of disability

With effect from 1st May 2011, this Equality Act 2010 guidance replaces the 2006 guidance previously in force for England, Wales and Scotland. Download 2011 guidance from ODI website (pdf file). For Northern Ireland there is different guidance.

This 2011 guidance for Equality Act 2010 took 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. See SI 2011 No. 1159 (link to legislation.gov.uk).

Summary of key points

These are some key points comparing the 2011 guidance with the 2006 version, and linking to more detail below.

The example of stammering on the telephone is still in the guidance, and indeed is even more helpful than before: Example of stammering on telephone.
The stammering example that was at para B8 of the 2006 guidance has been deleted. There were problems with this example and it did need to be either deleted or amended: Paragraph B8 and avoidance strategies.
The 2011 guidance finally gets away from a statement about fluency/stammering that might seen as saying a 'minor' stammer is not a disability: Minor stammer.
As an example of what it would be reasonable to regard as having a substantial adverse effect, the guidance no longer says "taking longer than someone who does not have an impairment to say things." However, time taken to speak is clearly still relevant: Taking a longer time.

Introduction

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 important in giving tribunals more detailed guidance on how the very general wording of the legislation should be applied.

The guidance is not an authoritative statement of the law. However, broadly for acts on or after 1st May 2011 unless they began before that date (see above), tribunals are required to take it into account where relevant (EqA Sch1 para 12). The House of Lords did decline to take such guidance into account when it came to statutory interpretation - SCA Packaging v Boyle (2009).

The following is an outline of some main points in the 2011 guidance as regards stammering, focussing particularly on changes from the 2006 guidance:

Example of stammering on telephone - para D17

Text of the example

2011 guidance, para D17
"...A man has had a stammer since childhood. He does not stammer all the time, but his stammer, particularly in telephone calls, goes 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 avoidance strategies. He tries to avoid making or taking telephone calls where he believes he will stammer, or he does not speak as much during the calls. He sometimes tries to avoid stammering by substituting words, or by inserting extra words or phrases.

"In these cases there are substantial adverse effects on the person's ability to carry out normal day-to-day communication activities."

That 2011 version compares with 2006 example:

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."

Comments on telephone example

As can be seen, this example in the 2011 guidance is based on one in the previous 2006 guidance.

The example 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 Equality Act. (Another example on avoidance, at paragraph B24, is also relevant by analogy. That talks of there being a substantial effect where a woman with significant facial scarring avoids numerous social situations, which some people who stammer also do.)

Under Equality Act 2010, as under the previous DDA, effects of the impairment need only be substantial in the sense of being more than 'minor or trivial'. This para D17 example is helpful in setting out that a very 'normal' type of stammer falls within the Equality Act - the stammer does not have to be severe.

The wording in the example that "his stammer...goes beyond the occasional lapses in fluency found in the speech of people who do not have the impairment" ties in with paragraph B1 of the 2011 guidance. Paragraph B1 says: "The requirement that an adverse effect on normal day-today activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people...". It can be argued that stammering does in the nature of things go beyond normal differences between people. See also below Minor stammer.

The 2011 wording goes beyond the 2006 version in that the 2011 guidance says there are substantial adverse effects in the example given, rather than just it would be reasonable to regard there as being substantial effects.

Another improvement is that the 2011 version makes clear that it is talking of 'avoidance strategies', rather than using the term 'coping strategy'.

Paragraph B8 and avoidance strategies

The previous example about stammering at para B8 of the 2006 guidance has gone. This is welcome in the sense that there were significant problems with the example - it needed to be either deleted or amended. The example was of a woman who stammers, who avoided using the telephone and giving verbal instructions at work, limited social contact outside her immediate family, and avoided challenging situations with service providers. The (2006) guidance said the tribunal should consider how far it was reasonable to expect her to place such restrictions on her life. While the example was useful in making clear that the extent of her stammer was hidden by her avoidance, its statement of the legal position was incorrect, and indeed seemed to be inconsistent with what the text of the 2006 guidance said about avoidance strategies. More on previous para B8 example.

This section of the new 2011 guidance - from para B7 onwards - is still not ideal. In particular, it is unclear why in the new para B9 example inability of someone with a mental health condition to go to on the tube in the rush hour would not clearly be a substantial adverse effect on ability to carry out a normal day-to-day activity. However, there are numerous arguments one could make (only one of which is the helpful para D17 example above) why the effect of a stammer should not be seen as reduced by the possibility of using avoidance strategies in normal day-to-day situations. More: Hiding the stammer.

It is very possible that paras B7 to B9 of the 2011 guidance still understate the extent to which avoidance strategies are consistent with and indeed create a disability as defined in Equality Act 2010. However, with the deletion of the stammering example here, it is welcome that those issues with the guidance no longer appear to be directed at stammering.

Minor stammer

The 2011 guidance finally gets away from a statement on fluency/stammering that might seen as saying a 'minor' stammer is not a disability.

The 1996 guidance said that a 'minor' stammer is not within the DDA. The 2006 guidance says that inability to articulate fluently due to a lisp 'or other minor speech impediment' is not to be wthin the DDA. This is rather confusing - a lisp does not affect 'fluency' and the best known speech disorder which does is stammering. So could a 'minor' stammer be an example of a 'minor' speech impediment which the 2006 guidance says is not covered?

The 2011 guidance is much better. There is no mention at this point of fluency, so the statement clearly does not apply to stammering. The 2011 guidance simply says that 'Inability to articulate certain sounds due to a lisp' would not be a disability (in Appendix of 2011 guidance).

This does not necessarily mean that any stammer is a disability. But one could make the argument that any stammer will go beyond the normal differences which exist between people, as stated in para B1 and the Example at paragraph D17 above. See generally (though based on the 2006 guidance): Is any stammer covered?

Taking a longer time

The 2006 guidance at para D25(i) said 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." It is a pity that the 2011 guidance does not include this.

However, paragraph B2 of the 2011 guidance says that the time taken to carry out a normal day-to-day activity compared with a person without the impairment is relevant. Para B3 deals with the 'way in which an activity is carried out' which again will typically be different for people who stammer. Para B4/B5 on cumulation of effects on numerous day-to-day activities will also often be relevant for stammering, as well environmental factors dealt with in para B11. The Example at paragraph D17 is very helpful in indicating that a very 'normal' level of stammering is within the Equality Act,

Avoiding social interactions

An example which will be relevant to some people who stammer is: "Persistently wanting to avoid people or significant difficulty taking part in normal social interaction or forming social relationships, for example because of a mental health condition or disorder". This is listed in the Appendix as something it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities.

Smaller points

Treatment/therapy

Measures being taken to treat or correct an impairment are disregarded in deciding what effect it has. One looks at whether the impairment would have a substantial adverse effect without the measures. It is interesting that to illustrate this, the 2011 guidance uses an example of counselling being given to a person with depression (para B14). This is closer to speech and language therapy than the more 'medical' examples, such as drugs or prostheses, commonly used to illustrate the rule. For more on the rule: Therapy, and using speech techniques or devices.

Public speaking

Like the 2006 guidance, the Appendix of the 2011 guidance says that inability to speak in front of an audience simply as a result of nervousness is not a disability. For consideration of this in relation to stammering, see Normal day-to-day activities: Speaking an audience.

What is a 'particular' disability?

It can be relevant what counts as a particular disability, or whether people share the same disability. For example, in deciding whether there is indirect discrimination it is relevant whether a practice etc puts people who share a certain disability at a particular disadvantage. The issue can also arise where an employer says it is an occupational requirement for a job candidate to have a particular disability. The 2011 guidance addresses this in a new Section F.

This issue may only rarely be important in practice. So far as the issue is relevant, Section F of the 2011 guidance seems to draw the boundary quite widely. In particular, it sees 'mobility impairment' as a particular disability, even though that would cover many types of medical condition. The issue is addressed very briefly in the Statutory Code of Practice on employment (pdf, link to EHRC) para 4.16, and Statutory Code of Practice on services (pdf, link to EHRC) para 5.17 when they say that people with a particular disability would be, for example, people with an "equivalent visual impairment".

It is unclear whether on this basis 'speech impairment' or 'fluency impairment' might be seen as the relevant classification, rather than 'stammer'. Perhaps not, because a stammer has a particular type of effect on speech. Or "particular disability" might be something inbetween. In any event, this will be a matter for the courts to decide.

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