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Who is protected: Longer term variations in stammering

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

Likelihood of recurrence
Past disability

Broadly speaking, an impairment is treated as long-term (and so potentially within the Act) if it lasts or is likely to last at least twelve months (Schedule 1 para 2(1) #). An adult stammer will practically always meet this test.

In looking at periods when a stammer is much improved due to therapy or speech techniques, it should first always be remembered that the stammer may well be treated as continuing as if the help weren't here, so that the person is still "disabled" and the following is irrelevant (see the section on "Therapy..."). What is dealt with in the following are two further grounds on which a person whose current stammer (if any) does not have a substantial adverse effect may argue he still has a disability - namely likely recurrence or past disability.

Likelihood of recurrence

Where an impairment does cease to have a substantial adverse effect, it is to be treated as continuing to have that effect if the effect is likely to reoccur (Schedule 1 para 2(2) #). So say a significant stammer has become negligible for some reason, maybe because of a recent course. If the substantial (ie more than minor or trivial) effect is likely to reoccur, the person is still treated as disabled. In some cases this may perhaps be a psychologically difficult issue for the person, if he is hoping and perhaps believing fervently that his speech will stay that way - he may not want to say it is likely to revert, whether or not it is likely. The test is whether the recurrence is more probable than not (guidance paras B7-8: DRC's 'Guidance' web page).

This provision (Schedule 1 para 2) is also likely to apply where a person has become substantially fluent after having had a more severe stammer and can only now expect the occasional difficult patch. It seems that the stammer is treated as continuing in its more severe state provided it is more probable that not that the person will occasionally - possibly even rarely - have occasions when the stammer has the required substantial effect on the ability to carry out normal day-to-day activities. It is not clear whether likely reoccurrences could be single occasions or would need to be more protracted - possibly para B3 of the guidance on epilepsy implies that single occasions can be enough. How likely any coping strategy is to break down is taken into account (para B5).

Past disability

Another argument that a person is disabled even over a period when he has become fluent is that the Act's protection extends to past disabilities (section 2 #). This provision is there partly because it may be difficult to know whether a past disability will reoccur. Certainly if someone is discriminated against because they had a substantial stammer in the past, he is likely to be protected under this provision.

It is not clear to me whether this provision also applies where the discrimination is because the person does presently have a stammer, albeit its effects now are not "substantial", but the effects used to be substantial in the past. Para B9 of the guidance maybe implies that the provision does still apply in this situation.

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Last updated 28th May, 2001