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Archive: Wider definition of ‘disability’?

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Last updated 14th May 2009.

It has been proposed in the past that an impairment should not need to have a ‘substantial’ or ‘long-term’ effect in order qualify as ‘disability’. This page outlines the proposal and its importance. The proposal is not currently accepted by the Government.

Importance

In April 2009, the House of Commons Work and Pensions Committee recommended that the legal definition of ‘disability’ be widened, except as regards the reasonable adjustment duty. Someone claiming for less favourable treatment would no longer need to show that their impairment has a ‘substantial’ effect on normal day-to-day activities. The proposal is not currently accepted by the Government.

The existing test of ‘disability‘ is not that difficult to meet for stammering. However, a person may be unsure whether their particular stammer has significant enough effects. In any event, if the employer etc disputes the point, the person will need to bring enough evidence of the effects of the stammer to satisfy the tribunal that the stammer meets the legal test.

If the proposal is adopted, it could be much easier for a person who stammers to feel confident that their stammer is protected by the DDA. Hopefully less favourable treatment related to any stammer (or other impairment) would fall within the DDA. The focus would be on questions such as was the treatment related to the stammer, and if so was the treatment justifiable.

At present we have the odd position that the less severe the stammer, the less likely there is to be a fair reason for unfavourable treatment, but the greater chance the employer etc. has of arguing that the stammer is not protected by the DDA.

Of course the effect of the proposal would depend on various things such as the detailed wording, guidance issued, and how it is interpreted by the courts.

Work and Pensions Committee proposal

The Work and Pensions Committee recommended in 2009 as follows:

“84. We believe that for the purpose of direct and disability-related discrimination the social model – protection from discrimination to everyone who has (or has had) an impairment without requiring the effects of that impairment to be substantial or long-term – should apply. The focus should be on whether or not the treatment of an individual was justified, or whether it was on the grounds of their impairment. It is inequitable to protect some disabled people from discrimination but not others because their impairment is less significant.

“85. However, for the third discrimination ground – the failure to make reasonable adjustments – a medical model approach must be retained. This will ensure clarity for business about the extent to which they have to make adjustments and ensures that the most vulnerable receive the support they need.”

(Source: Work and Pensions Committee report The Equality Bill: how disability equality fits within a single Equality Act (link to parliament.uk)).

Part of the reasoning behind the Work and Pensions Committee view is evidently the complexity and cost that can be involved in establishing that a person falls within the DDA:

“76: ….Cloisters and the Discrimination Law Association state that where it is unclear whether or not an individual meets the definition – and this is relatively common – they will be “put to proof”, which will usually mean an extensive witness statement explaining what they can and cannot do; an expert medical report; and a hearing at which the claimant will be cross examined.”

The issue is also considered in a Human Rights Committee report, October 2009 (link to parliament.uk), para 53-55, which however gives greater emphasis to the abolition of the ‘long-term’ requirement.

Based on Disability Rights Commission recommendation

The Work and Pensions Committee was here supporting – as regards ‘less favourable treatment’ – the Disability Rights Commission’s recommendation in July 2006 that the definition of disability should be altered to cover any impairment, without having to show that its effects are substantial or long-term.

The DRC’s view, after consulting on the issue, was that disability discrimination law should move away from protecting a group of ‘disabled’ people and instead protect anyone who experiences discrimination on the grounds of an impairment. If the definition is amended in this way, it would no longer normally be an issue whether the complainant has a disability. The focus would shift to such issues as whether there has been discrimination.

The DRC’s recommendation followed a review of the definition which had been requested in 2004 by the cross-party Parliamentary Scrutiny Committee on the Draft Disability Discrimination Bill (link to committee report). The DRC also recommended:

  • that help on interpretation of ‘impairment’ under the new definition could be provided by statutory guidance and Ministerial statements in Parliament;
  • considering the exclusion from the definition of a limited number of trivial conditions such as flu, for both policy and presentational reasons;
  • if the main DDA definition is changed, providing a more targeted definition of disability for the public sector duty, requiring public authorities to focus attention on those who are most excluded as a result of their impairment. E.g. there might be a requirement on them to promote equality for “people with impairments who are substantially excluded”. Who is covered by this might vary according to the nature of the service.

The DRC’s recommendation followed a consultation, to which the British Stammering Association contributed.

EHRC view

According to the Work and Pensions Committee (above), the Equality and Human Rights Commission also proposed that the definition of disability should be changed completely, according to the social model (para 74 of Committee’s report).

Raised in Parliament

The proposal to extend the definition of disability was raised in Parliament by Labour MP Roger Berry, secretary of the all-party parliamentary group on disability, in the Second Reading debate on 11th May 2009. (communitycare.co.uk article, 12/5/09)

Government view

The Government rejected the proposal, though the issue was brought up again by MPs during the passage of the Equality Act through Parliament.

The Government considered that disability discrimination law should only protect those people who are disabled in the generally recognised sense of the term – i.e. because they have a long-term or permanent impairment with substantial adverse effects – and that a substantial change to the definition risks broadening coverage of disability discrimination law too widely

(Source: Government response to the Discrimination Law Review (pdf file, link to equalities.gov.uk), July 2008, para 11.58)