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Definition of 'disability'

(Applies only to acts of discrimination before 1st May, 2006.
Link to postion from May 2006 onward.)

Introduction
"Physical or mental impairment"
"Long-term"
"Substantial adverse effect" on "normal day-to-day activities"

A person is "disabled" for the purpose of the Act if he has a "disability" as defined. Many people with a stammer would not see themselves as "disabled" at all. However, the words "disability" and "disabled person" are given a special meaning under the Act and what matters is whether you fall within this statutory definition rather than whether you would generally be considered by yourself or others as disabled.

Under section 1 # of the Act a person has a disability "if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".

"Physical or mental impairment"

It does seem that a stammer is a "physical or mental impairment ". This was undisputed in the Shaughnessy, Alderson and Whittick cases, though they do not provide legal authority. The Employment Tribunal in Blacker found a 'speech impediment' to be a physical impairment. There are strong arguments to support stammering being a physical or mental impairment:

• The causes of stammering are still uncertain.
• However, I would say stammering is clearly 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 (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.)
• Some people might suggest that stammering is "environmental", but presumably this is "mental" within the definition.
• Other evidence may be useful to confirm that stammering is covered. For example, 2002 research in Hamburg found a physical difference in part of the brain of people who stammer (left Rolandic operculum), 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. (More links on BSA research links page.) One could call this either physical or mental, but it is hardly "neither".
• Also the statutory guidance on the definition of disability (see below) mentions stuttering - which is the same as stammering - twice in contexts which imply it is covered (paras A8 and C19; see also para C12 on a "speech impairment"). The Code on Employment (see here) in para 7.25 also goes on the basis it is covered.
• 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 followed it seems likely that stammering would 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. It appears from Blacker that to fall within the DDA the impairment cannot simply be a hybrid of physical and mental, but this does not seem to mean that an impairment with both physical and mental aspects should be excluded.
• What if stammering were instead seen as a 'mental' impairment? Before 5th December 2005, Schedule 1 para 1 of the Act said that a mental impairment includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness. The Disability Discrimination Act 2005 abolished this requirement with effect from 5th December 2005. However, even so long as this requirement did apply (ie for discrimination etc occuring before 5th December 2005) it was most likely not relevant to stammering because (a) stammering is more likely to be a 'physical impairment' - see above, (b) stammering presumably is clinically well recognised, and (c) stammering may well not be an 'illness'. On points (b) and (c):
  • The guidance on the definition of disability (see below) at para 14 says it is very likely that a clinically well-recognised illness would include those specifically mentioned in publications such as the World Health Organisation's International Classification of Diseases (ICD-10), which does address stammering - see ICD and stammering.
  • In fact I think that if stammering is a mental impairment it is one which does not involve a mental "illness" (Dunham v Ashford Windows), in which case Sch 1 para 1 should not apply. I understand that stammering is a "condition" rather than an "illness". There should therefore be no DDA requirement for it to be clinically well-recognised.
• I accordingly assume in the rest of the discussion that stammering is indeed a "physical or mental impairment".

"Long-term"

Broadly, long-term means at least 12 months. An impairment which ceases to have a substantial adverse effect is treated as continuing if it is likely to recur. (Schedule 1 para 2 #)

"Substantial adverse effect" on "normal day-to-day activities"

There are guidance notes on whether an impairment has a substantial adverse effect on normal day-to-day activities, and on whether an effect is long-term. These are not an authoritative statement of the law but the tribunals and courts looking at these issues are obliged to take any relevant guidance into account where the position under the statute is not clear. The notes are called Guidance on matters to be taken into account in determining questions relating to the definition of disability, dated 1996. They are available online from the DRC's 'Guidance' web page.
(NB: important new Guidance will apply where the discrimination occurs on or after 1st May 2006. The new guidance contains major changes as regards stammering, and is not reflected on this page.)

In deciding whether something is a normal day-to-day activity, account is taken of how far the activity is normal for most people and carried out by most people on a daily or frequent and fairly regular basis; activities only done by a particular group of people or in a particular kind of work do not count (para C2 of guidance) Under Schedule 1 para 4(1)(f) # only certain listed activities, can be included as a normal day-to-day activity, but these include speech. See more on "normal day-to-day activities.

Para A1 of the guidance gives some general guidance on what is a "substantial" adverse effect:

Meaning of substantial adverse effect
A1. The requirement that an adverse effect be substantial reflects the general understanding of "disability" as a limitation going beyond the normal differences in ability which may exist among people. A "substantial" effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects. A "substantial" effect is one which is more than "minor" or "trivial".

The time taken to carry out an activity
A2. The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time that might be expected if the person did not have the impairment....

Para C12 of the guidance comments that a severe speech impediment is clearly within the Act, and para C19(i) deals with less obvious issues on speech disabilities in general as follows:

"Account should be taken of how far a person is able to speak clearly at a normal pace and rhythm and to understand someone else speaking normally in the person's native language. It is necessary to consider any effects on speech patterns or which impede the acquisition or processing of one's native language, for example by someone who has had a stroke.

Examples

It would be reasonable to regard as having a substantial adverse effect:

• inability to give clear basic instructions orally to colleagues or providers of a service;
• inability to ask specific questions to clarify instructions;
• taking significantly longer than average to say things.

It would not be reasonable to regard as having a substantial adverse effect:

• inability to articulate fluently due to a minor stutter, lisp or speech impediment;
• inability to speak in front of an audience;
• having a strong regional or foreign accent;
• inability to converse in a language which is not the speaker's native language."

Decisions of tribunals and courts will also be important in setting precedents for how these provisions are to be interpreted in the context of stammering. The only decision I am aware of so far is Shaughnessy v The Lord Advocate. However, there is a lot to be seen already from the guidance and to some extent from other decided cases.

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© Allan Tyrer 1999-2005
Last updated 12th June, 2005 

'Disability' menu pre-May 2006

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Is the stammer a disability?

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Any stammer covered?

Related areas

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Postion from May 2006