10 years of stammeringlaw 1999-2009
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'Physical or mental impairment'

Stammering is a physical or mental impairment. 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 Equality Act 2010, 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.)

"EqA" or "Equality Act" means the Equality Act 2010 (link to legislation.gov.uk)

The "2011 Guidance" means the official Guidance on matters to be taken into account in determining questions relating to the definition of disability (link to ODI) website, pdf).
This has effect from 1st May 2011, replacing the 2006 guidance, unless the act complained of was before 1st May or is a continuing act which started before 1st May. See further 2011 guidance.

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 Disability Discrimination Act 1995 (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

Structural and functional differences have been found in the brains of people who stammer compared with people who do not - see for example links on the BSA research links page. There is also genetic evidence (link to BSA research links page).

One could call these brain differences either physical or mental, but they are hardly "neither".

2011 Guidance

The 2011 Guidance on definition of disability gives an example specifically on stammering (para D17), clearly assuming it to be an impairment.

'Physical' or 'mental'?

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

The causes of stammering are uncertain. However the 2011 Guidance says at paragraph A7 that it is not necessary to consider how an impairment is caused. Paragraph A6 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 16th July October, 2011