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Disability: Discounting speech techniques etc

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Last updated 22nd October 2020.

It seems tribunals should generally disregard the effect of speech techniques and other therapeutic measures, and consider whether the stammer “could well” have the required substantial effect if the person were not using them.

Summary

Summary: EqA Sch 1 para 5

The stammer may well have the required substantial effect even without using the special rule in Sch 1 para 5. Any speech techniques tend only to reduce stammering, and not to work all the time.

However this page is about how Sch 1 para 5 may be able to help. It says that if measures are being taken to treat or correct an impairment such as a stammer, the effect of the measures is discounted. The impairment is seen as having a substantial adverse effect on the person’s ability to carry out normal day-to-day activities if the impairment “could well” have such an effect were the measures not being taken. Below Equality Act Schedule 1 paragraph 5.

As to how this can apply to stammering –

Summary: Speech techniques

If the person is using speech techniques, for example block modification or costal breathing, it seems that under Sch 1 para 5 the tribunal should look at whether the stammer “could well” have the required substantial effect were the speech techniques not being used. Below Speech techniques and Sch 1 para 5.

The wording of the provision seems wide enough to go beyond techniques learned in speech and language therapy, though ultimately its scope will be for the courts to decide: below Speech techniques from where?

Summary: Speech therapy sessions

Discounting sessions with a speech therapist is only relevant if the therapy is still ongoing. It may be easier to rely on discounting speech techniques as outlined above. As regards discounting ongoing speech therapy sessions, 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 with a substantial adverse effect on ability to carry on normal day-to-day activities. Another possibility, under a different EqA provision, is to argue that the person could well have a future relapse at some stage after finishing therapy. Below Speech therapy and Sch 1 para 5.

Summary: Fluency apps and devices

It seems clear that apps and devices fall within Sch 1 para 5. Accordingly there is still a ‘disability’ within the Equality Act if a person who stammers uses an app or electronic device to be more fluent, but the stammer “could well” have the required substantial effect if the person were not using it. Below Fluency apps and devices: Sch 1 para 5.

Summmary: Word substitution and fillers

I would argue that the same rule also extends to techniques not recommended by therapists such as word substitution and inserting fillers. Below Word substitution and fillers.

Summary: What if speech techniques not disregarded?

If for any reason Sch 1 para 5 does not apply in a particular case, the tribunal would presumably look at the effects of the stammer as alleviated by the speech techniques etc. However, the tribunal would need to take into account the fact that speech techniques sometimes (probably often) break down, and also any adverse effects produced by the technique. Below What about any speech techniques which are not disregarded?

Introduction

Very often a person using a therapy technique will still have sufficient overt stammering and/or hidden effects, at least in certain situations, that he has a ‘disability’. But what if the person uses techniques or other measures which use reduce his stammer (including hidden effects) to such a level that it does not have a substantial adverse effect on normal day-to-day activities? Does he still have a ‘disability’?

There may well be other grounds to say he has a ‘disability’. For example the speech techniques (such as costal breathing) may mean the person speaks in an unusual way and/or more slowly (below), or (quite likely) there “could well” be a future relapse at some stage.

However even apart from those arguments he may still have a disability on the basis that the effect of the speech techniques etc should be discounted:

Equality Act Schedule 1 paragraph 5

What it says

“(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 effect is not evident because measures are being taken to correct it. The House of Lords in SCA Packaging v Boyle held that “likely” means only “could well happen” – the substantial effect does not have to be more probable than not. The question is whether the stammer could well have a substantial adverse effect on the person’s ability to carry out normal day-to-day activities were the measures not being taken.

The effects which the impairment could well have but for the measures are often called its “deduced effects”, following the case of Goodwin v Patent Office.

Cases

Apart from Goodwin, appeal cases on Sch 1 para 5 or its DDA predecessor include:

SCA Packaging v Boyle, House of Lords, 2009
The Northern Ireland Court of Appeal confirmed that a voice management regime to avoid recurrence of vocal nodules could be ‘measures’ within Sch 1 para 5. “Measures” were defined as including but not restricted to medical treatment and prosthetic aids. The voice management regime was in the nature of a measure which was followed to mitigate the risk of adverse consequences which would flow if it was not followed; it militated against the recurrence of hoarseness and ultimately nodules.

Also the House of Lords held that “likely” means only “could well happen”, when considering whether the impairment would be “likely” to have a substantial effect without the measures. The recurrence need not be “more probable than not”.

Woodrup v London Borough of Southwark, Court of Appeal, 2002
The Court of Appeal said that where treatment was ongoing, the question was 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.”

Notes: As to the first paragraph, presumably after SCA Packaging (above) the test is now whether the impairment “could well” have the relevant effect if treatment were stopped at the relevant date. As to the second paragraph, the “could well” test now sets the evidential bar rather lower, though expert evidence may still be important.

Metroline v Stoute (bailii.org), EAT, 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 before the court to argue his case. Also the EAT did say that “a particular diet” may be a measure to be discounted, though avoiding sugary drinks was not enough to be a particular diet.
Note: A diabetic diet involves much more than avoiding sugary drinks!

Carden v Pickerings Europe Ltd, EAT, 2005
The EAT found that a plate and pins put in to treat an ankle fracture could be measures within para 5 Sch 1, even though they were put in 20 years before 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: it is not limited to medical treatment, prostheses or other aids.

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

Kapadia v London Borough of Lambeth, EAT, 2000
The EAT held that counselling sessions for depression with a Consultant Clinical Psychologist were treatment within the meaning of what is now Sch 1 para 5.

AE Proctor v Hutton, EAT, 2000
The EAT seems to have considered that using a spell check or dictionary were measures falling within the provision.

Speech techniques and Sch 1 para 5

It seems that speech techniques being used by a person to help with their stammer are “measures” which should be disregarded under para 5: below Legal basis. (See below on word substitution or fillers.) Assuming this is right, the court should look at whether the stammer “could well” have the required substantial effect if the speech techniques were not being used.

Examples of measures being taken to correct or mitigate a stammer could include block modification or costal breathing.

Speech techniques seem to fall within the wording of Sch 1 para 5 as “measures … being taken to treat or correct” the impairment. The argument is helped by SCA Packaging v Boyle (2009), which held that a voice management regime recommended to and followed by the claimant to avoid recurrence of vocal nodules fell within para 6. The speech techniques are measures being taken by the person who stammers to treat or correct the impairment, like the measures being taken by the claimant in SCA Packaging.

However I’m not aware of any court decision directly on speech techniques.

Speech techniques from where?

The techniques may have been learned from a current or previous speech and language therapist. That is probably the argument a tribunal is most likely to “feel comfortable” with.

However the statutory provision does not say the measures have to come from a medical practitioner, so I do not see why the wording should not include for example:

  • techniques learned on a course not run by speech and language therapists, for example costal breathing learned on the McGuire Programme or Starfish Project
  • techniques learned from other sources such as a stammering conference, self-help group, social media, website or book (these will often come directly or indirectly from a speech and language therapist or from someone who runs stammering courses, but may not necessarily).
  • One could also argue it includes techniques developed by the individual himself.

With availability of adult stammering therapy on the NHS becoming more and more patchy (available in some areas but not others), many people who stammer are likely to have to rely on sources other than personal speech and language therapy.

It will be down to the tribunals and courts to decide what falls within Sch 1 para 5, but the statutory wording seems wide.

Natural fluency?

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, the person may still sometimes stammer, either overtly or where effects are hidden. In any event it is very possible that he “could well” have substantial effects in future so as to still be treated as having a disability now: see Longer-term variations.

Speech therapy and Sch 1 para 5

Ongoing speech therapy sessions are presumably a ‘measure’ to be disregarded under para 5: below Legal basis. It seems the court should look at whether the stammer “could well” have the required substantial effect if the therapy sessions stopped.

Ongoing speech therapy: Legal basis for coming within para 5

In summary:

  • Under Sch 1 para 5(2) “measures” include “medical treatment and use of a prosthesis or other aid…”. Speech and language therapy may well count as “medical treatment”.
  • In any event para 5 is not limited to medical treatment, prostheses or other aids.

Speech therapy may be “medical treatment”

Firstly, speech and language therapy might well be ‘medical treatment’:

Kapadia v London Borough of Lambeth, EAT, 2000
The EAT held that counselling sessions for depression with a Consultant Clinical Psychologist were treatment within the meaning of what is now Sch 1 para 5.
Note: like speech and language therapists, clinical psychologists are registered with the Health & Care Professions Council. There seems to be no reason why it should make a difference that he was a “consultant”.

Also para B12 of the 2011 Guidance says:

“…medical treatments would include treatments such as counselling, the need to follow a particular diet, and therapies, in addition to treatments with drugs.”

The 2011 Guidance at para B14 also uses an example of counselling being given to a person with depression. This is closer to speech and language therapy than the more ‘medical’ examples, such as drugs or prostheses, which are commonly used to illustrate Sch 1 para 5.

Speech therapy as a “measure”, whether or not it is medical treatment

Even if speech and language therapy is not “medical treatment”, para 5 is not limited to the examples of “measures” given (see SCA Packaging v Boyle, Carden v Pickerings Europe Ltd, and the wording of para 5 itself “includes, in particular…”). The therapy could fall within the general wording of para 5 as “measures … being taken to treat or correct” the impairment.

Non-qualified therapists? Ongoing use of support network?

How about courses like the McGuire Programme or Starfish Project which are not run by qualified speech and language therapists. As I understand it, essentially the person who stammers goes on a 3-4 day intensive course, and ongoing support afterwards is through self-help groups, a support network of telephone contacts, and perhaps being assigned a personal coach (though one can go on future courses).

The ongoing support might be ongoing “measures” within Sch 1 para 5, particularly if one has a personal coach. However it may be easier to argue primarily that the ongoing use of costal breathing and any other speech techniques are the “measures” within that provision: above Speech techniques.

Ongoing speech therapy: applying the Sch 1 para 5 test

Firstly, so far as one is looking to discount speech therapy sessions (rather than speech techniques, above) as “measures”, Sch 1 para 5 can only apply while the therapy is ongoing. The therapy may last no more than a few sessions, particularly on the NHS. This limits the time during which Sch 1 para 5 can apply to therapy, as opposed to any speech techniques which the person may continue to use.

During therapy the stammer may well have substantial effects in any event, without needing Sch 1 para 5. However if one does want to rely on Sch 1 para 5 as regards ongoing speech therapy sessions (as opposed to speech techniques), 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 substantial effect on normal day-to-day activities (Woodrup case, modified by SCA Packaging v Boyle).

Even if the claimant cannot show that the relevant substantial effect “could well” be there on therapy being stopped, there are other EqA provisions under which the person may still have a ‘disability’ on the basis they could well have a future relapse. It seems common for speech to be less difficult for a period after therapy but for the person to relapse later.

Also para 5 may continue to apply after therapy as regards speech techniques (above) which the person uses ongoingly.

Electronic fluency apps and devices: Sch 1 para 5

It seems clear that these fall within Sch 1 para 5. Accordingly there is still a ‘disability’ within the Equality Act if a person who stammers uses an app or electronic device to be fluent, but the stammer “could well” have the required substantial effect if they were not using it.

In practice this seems unlikely to be important. People tend not to use these apps or devices all the time, only for occasional particularly difficult situations. Indeed it has been reported that using an app or device a lot can make it less effective, because the person stops paying so much attention to what the app/device is playing into their ears. Also apps and devices do not work for everyone.

Apps and electronic fluency devices used by people who stammer mainly use altered auditory feedback (AAF). This involves delayed auditory feedback (DAF) which plays back one’s voice with a short delay, and/or frequency altered feedback (FAF) which plays it back at a higher pitch. Sometimes white noise so you can’t hear yourself speaking. See the BSA website Apps & devices (stamma.org) about these apps and devices.

There is an analogy with para B14 of 2011 Guidance, which says: “if a person with a hearing impairment wears a hearing aid the question as to whether his or her impairment has a substantial adverse effect is to be decided by reference to what the hearing level would be without the hearing aid”.

Word substitution and fillers

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)

It can be argued that these too are “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’ within the Equality Act 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?

If for any reason Sch 1 para 5 does not apply in a particular case (and if other points discussed on Hiding the stammer do not apply), the tribunal will presumably consider whether the stammer as alleviated by the speech techniques etc has a substantial effect on normal day-to-day activities.

However, the tribunal should take into account that the person’s strategies will break down sometimes, for example where he is placed under stress (see para B10 of the 2011 Guidance). The tribunal In Paterson v Commissioner of Police of the Metropolis (2007) commented, 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. There are probably no speech techniques which can be relied on in all circumstances. However there will still be the question whether the adverse effect of the stammer in normal day-to-day activities is substantial.

Presumably the tribunal should also take into account any adverse effects produced by the technique. For example, if an individual using costal breathing is taking deep breaths, perhaps pausing his speech more than usual, perhaps speaking more slowly, that seems likely to be an adverse effect, and it may be “substantial”. Para D22 of the 2011 Guidance on ‘Indirect effects’ may be helpful here.

Failure to make reasonable modifications to behaviour

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.

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