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.
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 if these arguments do not twork? Does he still have a disability? The answer may well be yes. The position is often not clear though.
Schedule 1 para 5 Equality Act 2010 (previously DDA Schedule 1 para 6) says so far as relevant:
“(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if-.
(a) measures are being taken to treat or correct it, and
(b) but for that, it would be likely to have that effect.
(2) ‘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. However, the House of Lords in SCA Packaging v Boyle (2009) has made things easier by clarifying that ‘likely’ means only ‘could well happen’. The effects do not have to be more probable than not.
Cases on Sch 1 para 5 (or its DDA predecessor) apart from Goodwin include the following:
SCA Packaging v Boyle (2009) The Court of Appeal in Northern Ireland confirmed that a voice management regime to avoid recurrence of vocal nodules could be ‘measures’ within para 5 Sch 1. Also, as mentioned above, the House of Lords held that in looking at whether the impairment would be ‘likely’ to have a substantial effect without the measures, ‘likely’ meant only ‘could well happen’. The recurrence did not have to be ‘more probable than not’
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 5 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 5 Sch 1. “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 5.
AE Proctor v Hutton (2000): the EAT seems to have considered using a spell check or dictionary as being measures falling within the provision.
Metroline v Stoute (link to bailii.org) 2015 – the EAT held that simply avoiding sugary drinks is not a sufficient measure to be disregarded for a Type 2 diabetic. However, the decision is weakened because the claimant had been barred from appearing to argue his case. Further, the EAT did say a particular diet may be regarded as a measure to be discounted, though avoiding sugary drinks was not sufficient to be a particular diet. (Also, note that a diabetic diet involves much more than avoiding sugary drinks!).
Electronic fluency devices
It certainly seems that there can still be a ‘disability’ within the Equality Act 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 (not necessarily most probable but what ‘could well happen’) if the device were not being used. The device is presumably an ‘other aid’ within Sch 1 para 5.
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 Apps & devices (stamma.org) about such devices.
There is an analogous situation in para B14 of 2011 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.
1) Therapy as ‘measure’
Firstly the speech and language therapy is a ‘measure’ being taken.
Speech and language therapy may well come within Sch 1 para 5 as ‘medical treatment’. Para B12 of the 2011 Guidance says that in this context, “medical treatments would include treatments such as counselling, the need to follow a particular diet, and therapies, in addition to treatments with drugs.” Also the 2011 Guidance at para B14 uses an example of counselling being given to a person with depression, which is closer to speech and language therapy than the more ‘medical’ examples, such as drugs or prostheses, commonly used to illustrate the rule.
Even if if speech and language therapy were not seen as ‘medical treatment’, para 5 is not limited to the examples of ‘measures’ given (see SCA Packaging v Boyle and Carden v Pickerings Europe Ltd, as well as the wording of para 5 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 could well – notwithstanding any benefit obtained from therapy to date – have an impairment which would have the relevant adverse effect (Woodrup case, modified by SCA Packaging v Boyle). The adverse effect does not have to be more probable than not.
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 5 may continue to apply as regards speech techniques which the person needs to use (see next subheading).
2) Speech techniques as ‘measure’
The second ground on which Sch 1 para 5 may apply to a person in therapy is that speech techniques they use are ‘measures’ within para 5. This argument is helped by SCA Packaging v Boyle (2009), which held that a voice management regime recommended to avoid recurrence of vocal nodules fell within para 6.
This could apply even if it is decided that were 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 effects of the stammer are ‘likely’ to be substantial if those techniques are not used ongoingly. SCA Packaging v Boyle (2009) establishes that the test is whether the adverse effect of the stammer ‘could well’ be substantial if the techniques are not used.
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 5, so that one should look at what the effects of the stammer would be were the techniques not being used. SCA Packaging v Boyle, in particular, helps this argument.
The techniques may have been learned from a current or previous speech and language therapist, or from a course with another practitioner (eg Mcguire Programme, 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 voice management regime in SCA Packaging v Boyle and 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 5, 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 5. 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.
On the same lines, I would argue (though at first glance this might be more controversial) that Sch 1 para 5 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 5 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 if I am wrong and Schedule 1 para 5 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 S 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 B10 of the 2011 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 5 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 D22 of the 2011 Guidance on ‘Indirect effects’ may be helpful here.
Para B7 of the 2011 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.