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Disability: Failure to modify behaviour

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Last updated 17th July, 2011.

This page looks at how far if at all para B7 of the 2011 Guidance might require a person who stammers to take reasonable steps to reduce the effects of his stammer. For therapy generally, see my Therapy page.

Introduction

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 (see Commissioner of Police of the Metropolis v Virdi, 2006). Is this relevant for people who stammer?

The first point to make is that the 2011 Guidance is not law. Courts must take the Guidance into account but they are not bound to follow it. I mention this because it is not at all clear that para B7 is supported by the legislation or case law. Courts will not necessarily follow para B7. However, I discuss the position below in case they do.

Speech techniques

What if a person is not using a strategy or technique? Could a court ask itself whether it would be reasonable for him to do so, and try and decide how his speech would be if he did?.

In all likelihood not. Firstly, the kind of examples given from para B7 of the 2011 Guidance do not suggest that this is the kind of behavioural modification it has in mind. This is presumably because para B7 will not apply if the modifications to behaviour fall within EqA Schedule 1 para 5, which I believe speech techniques should do (see my Therapy page).

Even disregarding these points, an argument such as “Well, he wouldn’t stammer if only he did such and such” shows a lack of understanding of stammering. Certain techniques may be useful for some people who stammer but not for others. In any event it can be difficult to learn to apply them in the ‘outside world’, beyond the therapy setting. Further, they are likely to break down sometimes (or often). In addition, the person may well relapse more generally, at least for periods, and relapse is common. Furthermore some techniques may involve a loss of spontaneity which the person legitimately values.

I very much doubt therefore that a tribunal could legimately try to consider how a person’s stammer would be were he trying to use certain techniques. Indeed I would expect it to be impossible for a tribunal to make any meaningful determination on this.

Other steps to reduce stammering

At most, the effect of para B7 may be that, for example, a person who stammers more when tired should get a good night’s sleep, so far as it is reasonable to expect him to do this. This appears to be more the kind of behavioural modification envisaged by the Guidance.

Even here though, it seems unreasonable to say that a person who stammers should reasonably be expected to get an early night rather than going out partying with his friends. That does not appear to be a reasonable way to be expected to restrict one’s life. It might perhaps be reasonable to get an early night before a particularly important event the next day, but this would not help one’s speech in normal day-to-day situations generally, which is what the ‘disability’ definition focusses on.

In any event, this type of modification to behaviour is unlikely to tip the balance, such that one’s stammer has a less than ‘substantial’ (ie less than ‘minor or trivial’) adverse effect.

Avoidance strategies

Practices such as word substitution and avoidance are not steps that it should be considered reasonable for a person with a stammer to take in order to speak fluently, given speech and language therapy aims to steer people away from these. In any event, they do not seem to alter whether the stammer has a substantial effect. See further Hiding the stammer: Avoidance strategies – paragraphs B7-B9 and the rest of that page.

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