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Therapy, and using speech techniques or devices

This page outlines how it may be possible to disregard the effects of speech techniques and other therapeutic measures, so that one looks at how the stammer would be without them.

Introduction

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.
Often a person using a therapy technique will still have sufficient overt stammering, at least in certain situations, that he has a 'disability'. But what if techniques the person is able to use reduce his stammer to such a level that it does not have an substantial adverse effect on his normal day-to-day activities?. Does he still have a 'disability'?

There may well be other grounds to say he has a 'disability'. Effects may be hidden by avoidance strategies such as word substitution, or there may be a likelihood of future relapse at some stage - see main Disability page - What is a substantial effect?.

What if these arguments do not work? Does he still have a disability? The answer may well be yes. The position is often not clear though.

DDA Schedule 1 paragraph 6

What it says

Schedule 1 para 6 DDA, so far as relevant, says:

"An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to to treat or correct it, is to be treated as having that effect."

"...'measures' includes, in particular, medical treatment and use of a prosthesis or other aid."

In other words, there is a disability even if its effects are not evident because measures are being taken to correct it. One looks at the effects the stammer would be likely to have were the measures not being taken, and asks whether those would be a substantial adverse effect on the person's ability to carry out normal day-to-day activities.

The effects the disability would be likely to have but for the measures are often called its "deduced effects" following the Goodwin case. The EAT in that case acknowledged that ascertaining these effects may be difficult.

Cases

Other cases on Sch 1 para 6 include the following:

Carden v Pickerings Europe Ltd (2005): the EAT found that a plate and pins put in to treat an ankle fracture could fall within para 6 Sch 1 even 20 years later when the case arose, if they still served sufficient function. Whilst the plate and pins might well be 'aids', the EAT also acknowledged that the definition of 'measures' is non-inclusive - ie it is not limited to medical treatment, prostheses or other aids.

Woodrup v London Borough of Southwark (2002): the Court of Appeal said that where treatment was ongoing, one asked whether the person would have an impairment with the relevant effect if treatment were stopped at the relevant date. The court also stressed the evidential burden of proof on a person relying under para 6 Sch 1 DDA. "Those seeking to invoke this peculiarly benign doctrine ... should not readily expect to be indulged by the tribunal of fact. Ordinarily, at least in the present class of case, one would expect clear medical evidence to be necessary."

British Telecommunications plc v Abadeh (2001): the EAT pointed out that only treatment currently continuing could fall within the provision. It also discussed the test to be applied where treatment is ongoing.

Kapadia v London Borough of Lambeth (2000): counselling for depression was held to fall within Sch 1 para 6.

AE Proctor v Hutton (2000): the EAT seems to have considered using a spell check or dictionnary as being measures falling within the provision.

A diabetes case: a special diet controlling diebetes fell within the provision.

Electronic fluency devices

It certainly seems that there can still be a 'disability' within the DDA where a person who stammers uses an electronic device to be fluent. In assessing whether the stammer has a substantial adverse effect, you look at what would be the likely effect of the stammer if the device were not being used. The device is presumably an 'other aid' within Sch 1 para 6.

Electronic fluency devices used by people who stammer include 'delayed auditory feedback' (DAF) fluency devices and other feedback or masker devices. See the BSA website: Electronic fluency devices about such devices.

There is an analogous situation in para B13 of 2006 Guidance, which says that the question whether a hearing impairment has a substantial adverse effect is to be decided by reference to what the hearing level would be without a hearing aid.

Therapy

I would also very strongly argue that the Sch 1 para 6 can apply where the person is in speech therapy. There are two grounds for this:

1) Therapy as 'measure'

Firstly the speech therapy is a 'measure' being taken. It may come within Sch 1 para 6 as 'medical treatment'. Even if it is not medical treatment, para 6 is not limited to the examples of 'measures' given (see Carden v Pickerings Europe Ltd, as well as the wording of para 6 itself: "includes, in particular...").

So far as speech therapy is the 'measure' being taken, the test seems to be whether, if therapy were stopped at the relevant date, the person would - notwithstanding such benefit as had been obtained from prior therapy - have an impairment which would have the relevant adverse effect (Woodrup case). Bear in mind that even if the relevant adverse effect would not be there, the person may still have a 'disability' due to the danger of future relapse, and also that para 6 may continue to apply as regards speech techniques which the person needs to use...

2) Speech techniques as 'measure'

The second ground on which Sch 1 para 6 may apply to a person in therapy is that speech techniques they use are 'measures' with para 6.

This could apply even if it is decided that were to therapy to stop now the stammer would not have a substantial adverse effect. This is because the 'measures' are the speech techniques, so the important question is whether effcts of the stammer would be substantial were those techniques not used ongoingly.

This ground could also apply to people not in therapy. I deal with it more fully under the next subheading.

Use of speech techniques

I would argue strongly - though it is difficult to be confident without a court decision - that a person can still be 'disabled' if he is speaking fluently using speech techniques. These seem to me to be 'measures' within Sch 1 para 6, so that one should look at what the effects of the stammer would be were the techniques not being used.

The techniques may have been learned from a current or previous speech and language therapist, or from a course with another practitioner (eg Mcguire Programe, Starfish Project), or indeed from other sources such as self-help groups, websites or books.

Examples of the measures being taken to correct or mitigate the stammer might be block modification, or costal breathing.

I would say that even though the measures being taken to 'treat' the stammer, ie any therapy or course, may have stopped (as considered in Abadeh), there are still measures being taken, by the stammerer himself, to 'correct the stammer' (compare the plate and pins in Carden v Pickerings Europe Ltd).

Perhaps 'measures' could also include using a support network of telephone contacts after a course.

I do not see why this should not extend to a technique developed by the stammering person himself, or learned from a support group, website, books etc. That still seems to be within the wording of para 6, and (I would say) within its spirit. There seems little logical reason to treat this differently from techniques learnt in formal therapy. With any speech techniques, the person still has the underlying stammer - he is just taking therapeutic measures. A person without a stammer does not need to take measures to try and correct their speech.

A person who has reached a position where his fluency is now natural, without using a technique, presumably cannot rely on Sch 1 para 6. At this stage there are no measures being taken to correct the stammer (see Carden v Pickerings Europe Ltd). However, one can still look at how far there are any residual situations were the person does still have a problem, either overtly or where effects are hidden - or consider any likelihood of problems re-occurring at some stage in the future.

Word substitution and fillers

On the same lines, I would argue (though at first glance this might be more controversial) that Sch 1 para 6 also extends to techniques not recommended by therapists such as word substitution. (More on word substitution)

These too could be 'measures' taken to 'correct' the stammer. They are measures which mask a stammer which is really there.

If this kind of technique is not covered (either by Sch 1 para 6 or some other means), then the legislation would have the very odd result that speech therapy which encourages a person not to use word substitution might make the person more likely to be 'disabled' after the therapy than before it, as he may become less outwardly fluent. (More on this...)

The same applies to 'fillers', in other words inserting words such as 'actually'.

What about any speech techniques which are not disregarded?

What if I am wrong and Schedule 1 para 6 does not apply, at least to some techniques? The obvious result is that where the person is using the strategy or technique, then you look at his actual speech to see if the stammer has a substantial adverse effect. (This was the approach taken in Shaughnessy v The Lord Advocate.)

However, one would have to take into account that the person's strategies may (indeed will) break down sometimes, for example where he is placed under stress (para B9 of the 2006 Guidance). The tribunal In Paterson v Commissioner of Police of the Metropolis (2007) did actually comment, looking at the previous 1996 Guidance, that coping strategies will prevent the impairment having adverse effects only where they can be relied on in all circumstances. If this is correct, then given that there probably aren't speech techniques that can be relied on in all circumstances, maybe the effect of speech techniques should be disregarded even if Sch 1 para 6 does not apply.

Presumably one would also take into account any adverse effects produced by the technique. For example, if an individual using costal breathing were taking deep breaths, perhaps also pausing his speech more than usual to do so, that might well qualify. Para D11 of the 2006 Guidance on 'Indirect effects' may be helpful here.

Failure to make reasonable modifications to behaviour

Para B7 of the 2006 Guidance says that one should take into account how far the person can reasonably be expected to modify his behaviour so as to reduce or prevent effects of an impairment on normal day-to-day activities (Commissioner of Police of the Metropolis v Virdi, 2006).

However this does not seem to me to have great significance for people who stammer - see Failure to modify behaviour.


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Last updated 2nd July, 2006 (minor updates to 20th January 2008)