Home » Disability equality law » Is the stammer a disability? » Disability: Discounting speech techniques etc » Disability: Failure to modify behaviour

Disability: Failure to modify behaviour

Disclaimer – please read
This page does not apply outside Great Britain.
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.

Paragraphs B7 to B10

Para B7 of the 2011 Guidance says that in deciding whether someone has a disability, the tribunal should take into account how far they can reasonably be expected to modify their behaviour, “for example by use of a coping or avoidance strategy”, so as to reduce or prevent effects of the impairment on normal day-to-day activities.

Para B10 says the possibility that the strategy will break down in certain circumstances, for example under stress, must also be taking into account.

Paragraphs B7 to B10 also give some examples and say more on avoidance strategies – some of this is discussed on the rest of this page.

Some cases:

Commissioner of Police of the Metropolis v Virdi, EAT, 2006
The claimant had a loss of central vision in one eye. The EAT said the tribunal should have applied the guidance similar to B7 which was then available. For example moving his head when crossing the road or when trying to recognise someone would be a coping strategy which reduced the effect of his impairment.

The EAT had considerable doubts whether taking rests after reading or using the computer for a period could properly be considered a “coping strategy”. Rather than being a way in which he coped so as to enable him to read, this simply defined the nature of the adverse impact: he cannot read for periods without a break.

Metroline Travel v Stoute (bailii.org), EAT, 2015
The claimant had Type 2 diabetes. The EAT said that having regard to para B7 of the Guidance, it was unable to accept that abstention from sugary drinks constituted a substantial adverse effect on day-to-day activities caused by Type 2 diabetes. Nor did the EAT consider that abstaining from sugary drinks was sufficient to amount to a “particular diet” which could be ignored as a treatment or correction under EqA Sch 1 para 5.
This decision is controversial. One reason is that a diabetic diet involves much more than avoiding sugary drinks. Also its suggestion that nut allergies should not be seen as a disability ignores the great lengths to which those affected may need to go to avoid traces of nuts. See the discussion by Tamara Lewis linked below under Modifying or avoiding normal day-to-day activities?

Taylor v Ladbrokes (bailii.org), EAT, 2016
After quoting paragraphs B7 and B10 the EAT said it is important that this is guidance issued by a Minister. It is not the statutory language itself, but rather a gloss on it. “… as I think the case of Boyle itself illustrates, Tribunals should start with the statutory language, consider the guidance and decide, having looked at both, what the statute means, concentrating primarily on the language of the statutory provision itself.”

General discussion of paragraphs B7-B10

The first point to make is that the 2011 Guidance is not law, as pointed out in Taylor above. In some cases the courts must take the Guidance into account but they are not bound to follow it. It is not at all clear that para B7 is supported by the legislation or by case law. The EAT in Virdi, 2006 applied para B7, but that was before the House of Lords decision in SCA Packaging v Boyle where Baroness Hale said that in interpreting the statute the court starts “with a clean slate” The EAT in Metroline did not discuss the Boyle case. See further Legal effect of statutory guidance and codes.

Avoiding abnormal activities

An example in para B7 indicates that it would be reasonable to expect a person who has chronic back pain to avoid extreme activities such as skiing, but it would not be reasonable to expect the person to give up, or modify, more normal activities that might exacerbate the symptoms; such as shopping, or using public transport.

Yes one can see how the skiing example might perhaps be right, because that is an ‘extreme’ activity which has knock-on effects on ability to do normal day-to-day activities. Arguably, if the reason you can’t go shopping (a normal day-to-day activity) is that you did your back in going skiing, despite knowing that’s the likely result, then this doesn’t count as a substantial effect on normal day-to-day activities.

However, is that consistent with Kaltoft v Municipality of Billund (bailii.org), 2014? This was a case on obesity in which the ECJ said the origin of the disability does not matter; disability “does not depend on the extent to which the person may or may not have contributed to the onset of his disability”.

Modifying or avoiding normal day-to-day activities?

However avoiding abnormal activities such as skiing, or going up the Eiffel Tower (para 8 of the Guidance) is very different from taking reasonable steps to modify or avoid normal day-to-day activities. Perhaps the Guidance is right as regards, for example, turning one’s head to be able to see properly when crossing the road, as in Virdi above. But the law is not necessarily as set out in the Guidance (indeed the Guidance is self-contradictory as set out under Avoidance strategies below).

Issues of modifying or avoiding normal day-to-day activities are discussed by Tamara Lewis in Proving Disability and Reasonable Adjustments: A Guide to evidence under the Equality Act 2010 (pdf, unison.org), Sept 2018, at page 19. After talking about the example above on back pain and skiing, she says:

“On the other hand, if someone has to avoid normal and routine parts of life, they surely must be considered disabled…..

The idea that someone is not disabled if they can reasonably be expected to modify their behaviour is rather dangerous. To what extent is it “reasonable” to expect someone with migraine to avoid red wine and cheese or someone with asthma to give up smoking or owning a cat, if these are trigger factors? It should be strongly argued that as soon as someone has to follow restrictions on very normal activities, there is clearly a substantial adverse impact and they are disabled.”

She goes on to discuss those with diabetes and nut allergies.

Avoidance strategies: stammering

The guidance is not easy to understand. For example para B7 says “In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability.” But para B9 says “It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person.” Here though I try to make some sense of the guidance, with particular reference to stammering.

Word substitution

People who stammer often substitute words or phrases when they feel they are going to stammer, so as to appear fluent. See Hiding the stammer>Word substitution and fillers. An employer etc may argue this should be taken as reducing the adverse effect of the stammer under paragraph B7, in other words that one should look at the stammer as reduced by word substitution. It might also (though less likely in practice) argue that so far as a person does not substitute words but could be more fluent if they did, the stammer should be looked at as if they did substitute words.

Such an argument by an employer etc is not justified, for various reasons.

Firstly, the wording of paragraphs B7-B10 does not seem to support the argument. Para B9 says

“Account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment, or avoids doing things because of a loss of energy and motivation. It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person…”

Firstly “substantial social embarrassment” is a fair description of the main reason why people who stammer commonly try to avoid stammering, through use of word substitution or otherwise. Fatigue could also be relevant. In any event those reasons for avoidance are stated to be only examples – this presumably means that at least similar reasons should also be covered. (There is an example after para B9, but I don’t understand how that relates to the example.)

Secondly, the stammering example in para D17 of the Guidance expressly says “He sometimes tries to avoid stammering by substituting words, or by inserting extra words or phrases.” This implies that word substitution (and insertion of “fillers”) is one of the relevant effects in deciding that the stammer in the D17 example has a substantial adverse effect on the person’s ability to carry out normal day-to-day activities. The introduction to Section B of the Guidance (including B7-B10) says “This section should not be read in isolation but must be considered together with sections A, C and D.” Paragraph D17 seems to clarify (along with B9) that word substitution and use of “fillers” are not to be seen as reducing the effect of an impairment under para B7.

Thirdly (last but not least), it is not reasonable to expect a person who stammers to use avoidance behaviours. See below Unreasonable to say a person should not avoid.

Avoiding difficult situations

What if someone who stammers avoids eg phone calls, or socialising? On the face of it paragraphs B7-B10 do not cover this kind of avoiding situations which the person finds difficult (and if the paragraphs did cover them one could strongly argue the paragraphs are wrong). Para B9 says

“Account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment, or avoids doing things because of a loss of energy and motivation. It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person…”

“Substantial social embarrassment” is a fair description of why people who stammer will commonly avoid situations in which they expect to stammer. In any event those reasons for avoidance are only examples; this seems to mean that at least similar reasons should also be covered. (There is an example after para B9, but I don’t understand how that relates to the example.)

Furthermore the stammering example in para D17 of the Guidance expressly mentions avoidance of “making or taking telephone calls where he believes he will stammer”. It implies this is one of the relevant effects in deciding that the stammer in that example has a substantial adverse effect on the person’s ability to carry out normal day-to-day communication activities. The introduction to Section B of the Guidance (including B7-B10) says “This section should not be read in isolation but must be considered together with sections A, C and D.” Paragraph D17 therefore seems to clarify (along with B9) that avoiding phone calls – and doubtless similar things such as avoiding social situations – are not seen as reducing the effect of an impairment under para B7.

When para B7 says it includes “avoidance strategies”, maybe it

It is welcome that para B9 mentions substantial social embarrassment as something which may lead a person to avoid – this is very relevant to stammering. And it is this same para B9 which says it would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person. But what the guidance means overall is difficult to fathom.

…………..This is quite different from where the activity you might be expected to avoid is itself a normal day-to-day activity (eg making phone calls, socialising), and the question is how far the impairment affects one’s ability to do that activity which you avoid. This is the situation which applies to stammering. There is no basis in the wording of the Equality Act for saying that if it’s ‘reasonable’ to avoid a particular ‘normal day-to-day’ activity, then that activity somehow doesn’t count. Also bear in mind that one’s ability to do something can be affected even if one avoids it (see above Effect as how the stammer would be if no avoidance).

Unreasonable to say a person should not avoid

ddd

Speech techniques

Para B7 expressly refers to para B12 of the guidance which says that if measures are being taken to treat or correct an impairment, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment could well have that effect (under EqA Schedule 1 para 5: see Therapy, and using speech techniques or devices).

As discussed at that link, 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. Accordingly the effect of the stammer should be considered without use of speech techniques, rather than with them.

Also note that 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 apply them in the ‘outside world’ beyond the therapy setting, they are likely to break down sometimes (or often), and relapse after speech therapy is common. Furthermore some techniques may involve a loss of spontaneity which the person legitimately and reasonably values.

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.

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 a persons’ stammer has a less than ‘substantial’ (ie less than ‘minor or trivial’) adverse effect.

20th anniversary of stammeringlaw, 1999-2019