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Therapy, using speech techniques or devices, and recovery

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

Introduction
Person speaking "fluently" using techniques or a device may still be "disabled"
What about any speech techniques which are not disregarded?

Often a person using some therapy technique will still have sufficient stammer, at least in certain situations, that he has a "disability". This is very important to remember. 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?

Firstly he might be able to claim discrimination because of a past significant stammer. Secondly, if a period of bad stammering is more likely than not to recur in the future then he should still be treated as disabled. Both these points are covered under the section on "Longer term variations is stammering". What if these arguments do not work; does he still have a disability?

Person speaking "fluently" using techniques or a device may still be "disabled"

The answer may well be yes he does still have a disability. The position is often not clear though. Schedule 1 para 6 # says that:

"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"

So there is a disability even if it is not evident because measures are being taken are correcting it. Measures "include, in particular, medical treatment and use of a prosthesis or other aid"

So one looks at the effects the disability would be likely to have were the measures not being taken, and asks whether those would be a substantial adverse effect on one's ability to carry out normal day-to-day activities. These effects which the disability would be likely to have are often called the "deduced effects" following the Goodwin case. The case acknowledges that ascertaining these effects may be difficult. Other cases on this provision include the following:

The guidance on this area raises some difficult issues which I discuss in this note.

Fluency aids

My view certainly is that there can still be a "disability" where the "fluent" person with a stammer is using a DAF fluency aid or other feedback or masker device to be fluent. Compare para A13 of guidance on hearing aids. In other words you look at how speech would be without the device. (See the BSA website on such devices).

Therapy

I would also very strongly argue, though without a tribunal decision this is perhaps not quite so clear, that the provision can apply where the person is in therapy ("treatment"). I doubt that in the case of stammering a tribunal could be satisfied that the therapy would produce a permanent improvement after the therapy has finished as in the Abadeh case (if the case is correct that this is relevant). Even if the tribunal were satisfied that there would be a permanent improvement, if this improvement would come through continuing use of speech techniques I would argue that there are continuing measures being taken (by the stammerer) to "correct" the stammer so that para 6 would continue to apply even after the therapy.

Accordingly I would also argue strongly that a person can still be "disabled" if he is speaking fluently using speech techniques learned from speech and language therapists or other practitioners in the past. He may have stopped therapy, or done a one-off course e.g either with a speech and language therapist or with a practitioner such as Dave McGuire or the Starfish Project. For example, a measure being taken to correct the stammer might be block modification, or costal breathing. I would say that even though the measures being taken to "treat" the stammer may have stopped (as considered in Abadeh), there are still measures being taken (by the stammerer himself) to "correct the stammer". Perhaps these "measures" could also include using a support network of telephone contacts after a course.

Self-help

While perhaps not so obvious, it may be that the provision also applies where the technique was developed by the stammering person himself, or learned from a support group. This still seems to be within the wording of the para, and (I would say) within its spirit. There seems little logical reason to treat this differently from techniques learnt in therapy (see the note). The person still has a stammer which could have a substantial effect - that's why he needs to use the techniques to correct it - and if he is discriminated against because of the stammer he should be protected.

Word substitution and fillers

On the same lines, I would even argue (though at first glance this might be more controversial) that the provision also extends to techniques not recommended by therapists such as word substitution. These too could be "measures" taken to "correct" the stammer. They are measures which mask a stammer which is really there. Furthermore, if they are not covered, 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. If substitution is covered. it would go a long way to recognising the extent to which stammering is hidden "below the surface".

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

In any event, unless the guidance is clarified the courts will need to decide the position. The matter could have been considered in Shaughnessy v The Lord Advocate but was not.

There is a second possible argument for being "disabled" despite a speech technique where the technique itself produces speech which is so unusual that there is still a substantial adverse effect on the ability to speak and so a "disability". E.g. if an individual needed to take really deep breaths that might qualify, and again it is difficult to know where to draw the line. But remember that if Schedule 1 para 6 applies then the technique is disregarded, so there can be a "disability" even if there is no residual effect on the speech at all.

A person who has reached a position where his fluency is now natural, without using a technique, presumably cannot rely on Schedule 1 para 6. At this stage there are no measures being taken to correct the stammer. Of course one could still consider any residual situations were the person does still have a problem, either overtly or taking measures to correct the problem, or any likelihood of problems recurring at some stage in the future.

What about any speech techniques which are not disregarded?

What if Schedule 1 para 6 does not apply? 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.)

But what if he is not using the strategy or technique? Under paras A7-9 of the guidance, if a person can reasonably behave in a way such that the substantial adverse effect ceases or is sufficiently reduced there is no "disability". It is not at all evident that this is supported by the legislation. However, on the basis of what the guidance says (which is not law), apparently if a person who stammers could reasonably be expected to modify his behaviour so as to speak fluently or almost fluently, he may be treated as not having a "disability". However, this does not apply if would involve Schedule 1 para 6 measures.

The guidance specifically acknowledges though that "coping" strategies may cease to work in certain circumstances, "for example, where someone who stutters ... is placed under stress", and the possibility that the effects may reoccur in these circumstances must be taken into account. This was acknowledged by the tribunal in Shaughnessy v The Lord Advocate.

People arguing that a person who stammers does not have a "disability" may be tempted to say: "Well, he wouldn't stammer if only he did such and such". This shows a lack of understanding of the frustration of stammering, and accordingly for a person who stammers this suggestion can be very annoying. Generally, for people with a stammer it is definitely not like that, and a properly instructed court would hopefully agree. Most people who stammer rarely if ever chose to stammer when they could be fluent. To repeat, so far as Schedule 1 para 6 applies this issue does not arise anyway.

Hopefully practices such as word substitution and avoidance are not steps that it would be considered reasonable for a person with a stammer to take in order to speak fluently, given that a lot of therapy aims at eliminating this type of thing.

As a final unanswered question, can voluntary stammering - a technique often recommended by therapists and others - be taken into account in producing a substantial adverse effect?

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© Allan Tyrer 1999-2005
Last updated 15th October, 2005