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'Physical or mental impairment'

Is a stammer a physical or mental impairment? It seems that it is. It is less clear which it is (physical or mental), though there is one case suggesting it is a 'physical' impairment. It may be best to argue both. (Bear in mind that to be a disability within the DDA, the physical or mental impairment must also have a substantial and long-term adverse effect on one's ability to carry out normal day-to-day activities.)

The "2006 Guidance" means the Guidance on matters to be taken into account in determining questions relating to the definition of disability which took effect from 1st May 2006, on the DRC's 'Guidance' web page.
For discrimination which occured before 1st May 2006, see my previous web page.
Introduction

It was undisputed in the Shaughnessy, Alderson, Whittick, Calderdale Council, and Bradford Council cases that the claimant's stammer fell within the DDA. There was therefore no dispute that it was a 'physical or mental impairment' - though these cases do not provide legal authority. The Employment Tribunal in Blacker found a 'speech impediment' to be a 'physical' impairment.

As set out below, there are very strong arguments to support stammering being a physical or mental impairment - and I accordingly assume on the rest of this website that it is:

Wide meaning of 'physical or mental'

Stammering clearly seems to be an impairment and, on the face of it, if it is not physical it should be mental and vice versa.

This is very much supported by the Standing Committee Debates considering the DDA (Hansard, H.C., Session 1994-95, Standing Committee E, cols 71,72, 101) where the then Minister of Social Security and Disabled People, William Hague, made it clear that physical and mental are intended to be seen in their widest sense and should comprehensively cover all forms of impairment. (It should be possible to quote these extracts in court if necessary, under the rule in Pepper v Hart.)

The conclusion that stammering is a physical or mental impairment is also supported in other ways:

Brain scans

2002 research in Hamburg found a physical difference in part of the brain of people who stammer (Brain research helps us to understand stammering - on BSA website), and PET scan studies seem to show differences in the areas of the brain used in speaking by people who stutter versus people who do not. There are links on the BSA research links page. There is an interesting theory that one of the premotor systems in the brain (the medial as opposed to the lateral) is impaired in people who stammer - www.stammering.org/peralm.html. One could call this either physical or mental, but it is hardly "neither".

2006 Guidance

The 2006 Guidance on the definition of disability mentions stammering twice in contexts which imply it is covered (paras B8 and D25(1). Also, just to take one example from elsewhere, the Code on Employment in para 7.25 also goes on the basis it is covered.

'Physical' or 'mental'?

So stammering is either a physical or mental impairment, but which?

The causes of stammering are uncertain. However the 2006 Guidance says at paragraph A8 that it is not necessary to consider how an impairment is caused. Paragraph A7 says:

"It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment. The underlying cause of the impairment may be hard to establish.There may be adverse effects which are both physical and mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa."

For what it's worth though, the Employment Tribunal in Blacker found a 'speech impediment' to be a physical impairment. It cited the Court of Appeal decision in McNicol v Balfour Beatty Rail Maintenance in deciding whether the impairment was physical or mental. The Blacker case is not a binding precedent, but if it is followed stammering may well be viewed as a physical rather than a mental impairment.

From the McNicol case, it seems prudent where there is doubt (as with stammering) to argue in the alternative that the impairment is either physical or, if that fails, mental.

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Last updated 10th November, 2007