Definition_of_disability

							DEFINITION OF DISABILITY
In law, the definition of disability is contained in the Disability Discrimination Act 1995, as amended. Section 1 states “a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”

Taken from ‘The Duty to Promote Disability Equality: Statutory Code of Practice, Scotland.’ When is a person disabled?
A person has a disability if he has a physical or mental impairment, which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

What about people who have recovered from a disability?
People who have had a disability within the definition are protected from discrimination even if they have since recovered.

What does ‘impairment’ cover?
It covers physical or mental impairments; this includes sensory impairments, such as those affecting sight or hearing.

Are all mental impairments covered?
The term „mental impairment‟ is intended to cover a wide range of impairments relating to mental functioning, including what are often known as learning disabilities.

What is a ‘substantial’ adverse effect?
A substantial adverse effect is something which is more than a minor or trivial effect. The requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people.

What is a ‘long-term’ effect?
A long-term effect of an impairment is one:    which has lasted at least 12 months, or where the total period for which it lasts is likely to be at least 12 months, or which is likely to last for the rest of the life of the person affected.

Effects which are not long-term would therefore include loss of mobility due to a broken limb which is likely to heal within 12 months and the effects of temporary infections, from which a person would be likely to recover within 12 months.

What if the effects come and go over a period of time?
If an impairment has had a substantial adverse effect on normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur; that is if it is more probable than not that the effect will recur.

What are ‘normal day-to-day activities’?
They are activities which are carried out by most people on a fairly regular and frequent basis. The term is not intended to include activities which are normal only for a particular person or group of people, such as playing a musical instrument, or a sport, to a professional standard or performing a skilled or specialised task at work. However, someone who is affected in such a specialised way but is also affected in normal day-to-day activities would be covered by this part of the definition. The test of whether an impairment affects normal day-to-day activities is whether it affects one of the broad categories of capacity listed in Schedule 1 to the Act. They are:         mobility manual dexterity physical co-ordination continence ability to lift, carry or otherwise move everyday objects speech, hearing or eyesight memory or ability to concentrate, learn or understand, or perception of the risk of physical danger.

What about treatment?
Someone with an impairment may be receiving medical or other treatment which alleviates or removes the effects (though not the impairment). In such cases, the treatment is ignored and the impairment is taken to have the effect it would have had without such treatment. This does not apply if substantial adverse effects are not likely to recur even if the treatment stops (i.e. the impairment has been cured).

Does this include people who wear spectacles?
No. The sole exception to the rule about ignoring the effects of treatment is the wearing of spectacles or contact lenses. In this case, the effect while the person is wearing spectacles or contact lenses should be considered.

Are people who have disfigurements covered?
People with severe disfigurements are covered by the Act. They do not need to demonstrate that the impairment has a substantial adverse effect on their ability to carry out normal day-to-day activities.

Are there any other people who are automatically treated as disabled under the Act?
Anyone who has HIV infection, Cancer or Multiple Sclerosis is automatically treated as disabled under the Act. In addition, people who are registered as blind or partially sighted, or who are certified as being blind or partially sighted by a consultant ophthalmologist are automatically treated under the Act as being disabled. People who are not registered or certified as blind or partially sighted will be covered by the Act if they can establish that they meet the Act‟s definition of disability.

What about people who know their condition is going to get worse over time?
Progressive conditions are conditions which are likely to change and develop over time. Where a person has a progressive condition he will be covered by the Act from the moment the condition leads to an impairment which has some effect on ability to carry out normal day-to-day activities, even though not a substantial effect, if that impairment is likely eventually to have a substantial adverse effect on such ability.

Are people with genetic conditions covered?
If a genetic condition has no effect on ability to carry out normal day-to-day activities, the person is not covered. Diagnosis does not in itself bring someone within the definition. If the condition is progressive, then the rule about progressive conditions applies.

Are any conditions specifically excluded from the coverage of the Act?
Yes. Certain conditions are to be regarded as not amounting to impairments for the purposes of the Act. These are:        addiction to or dependency on alcohol, nicotine, or any other substance (other than as a result of the substance being medically prescribed) seasonal allergic rhinitis (e.g. hayfever), except where it aggravates the effect of another condition tendency to set fires tendency to steal tendency to physical or sexual abuse of other persons exhibitionism voyeurism.

Also, disfigurements which consist of a tattoo (which has not been removed), non-medical body piercing, or something attached through such piercing, are to be treated as not having a substantial adverse effect on the person's ability to carry out normal day-to-day activities.

Words used to define disability
Taken from EHRC website December 2007 It may be helpful to look in more detail at the words used in the DDA definition of disability. This section explains some of the common terms and what they mean.

A physical or mental impairment
A physical impairment is a condition affecting the body, perhaps through sight or hearing loss, a mobility difficulty or a health condition. A mental impairment is a condition affecting ‘mental functioning’, for example a learning disability or mental health condition such as manic depression.

Substantial
‘Substantial’ means more than ‘minor’ or ‘trivial’. The following can help you to decide if your disability or health condition is substantial. When carrying out day-to-day tasks, does your condition make them more difficult in terms of:
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the time taken to carry out an activity, compared with someone who does not have your impairment; the way in which an activity is carried out, compared with how you might be expected to carry out the activity if you did not have the impairment; or the overall cumulative effect if the effects of more than one activity are taken together?

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If changing your behaviour reduces the adverse (or negative) effects of your impairment on day-to-day activity, then you may not be covered by the DDA. However, you do not have to go to great lengths to change your behaviour. For example, a person with a stutter does not have to avoid going to places where they might meet people. This change could itself have an adverse effect on your day-to-day activities. If the success of any coping strategies you use to reduce the adverse effect of your impairment is lessened by ‘environmental factors’ (such as extreme heat, humidity, how tired you are or how stressed you are), then this should be taken into account.

The effects of treatment
In most cases, the treatment or equipment that you may use for your disability or health condition should not be considered in deciding whether you are ‘disabled’ in terms of the law. Even if the impairment is not obvious, but without treatment would create substantial adverse effects, then it would still satisfy this part of the definition. In most cases, the law applies to you if your condition would have a big effect on you, were it not for medication or treatment.

So, for example, a person who takes medication for epilepsy which controls the condition well should consider the effect on day-to-day living if they did not take the medication. If epilepsy would have a ‘substantial’ effect on them without medication, then this part of the definition would be satisfied. The only exception is glasses or contact lenses: those people whose impairment is corrected by glasses or lenses are not covered. However, if you are certified as blind or partially sighted by a consultant ophthalmologist, or registered as blind or partially sighted with a local authority, you will be automatically considered as ‘disabled’. You do not have to show that your condition satisfies the definition set out in the DDA. If you have cancer, HIV or multiple sclerosis, you will automatically be considered as ‘disabled’ under the DDA. People who have other progressive illnesses, such as rheumatoid arthritis, are subject to special provisions in the DDA. A progressive condition is regarded as having a substantial adverse effect from the moment any impairment resulting from that condition has some effect on your ability to carry out normal day-to-day activities. Severe disfigurements are regarded as having a substantial adverse effect on your ability to carry out normal day-to-day activities, and you do not have to demonstrate or prove this. The degree and positioning of the disfigurement may need to be taken into account, not the effect on day-today activities.

Long-term
Long-term means that an effect of the impairment has lasted, or is likely to last, 12 months or more from the onset, or for the rest of your life. The effects of some conditions come and go. However, if the adverse effects are more likely than not to happen again, then the effect is treated as continuing.

Normal day-to-day activities
These are defined as involving any of the following: • mobility; • doing something with your hands; • physical coordination; • continence (controlling your bladder and bowels); • ability to lift, carry or move everyday objects; • speech, hearing or eyesight; • memory or ability to concentrate, learn or understand; or • perception of the risk of physical danger. Sometimes it is clear that if you have difficulty with one of the above, it will affect your ability to carry out many day-to-day activities. However, these individual areas deserve some further attention, in order to clarify whether a condition is likely to meet the definition of disability under the DDA.

Please note, the information below can only identify whether it is likely that you may be defined as disabled under the DDA: only the courts can categorically decide whether you are covered.

Mobility
This includes moving or changing position because a physical or mental condition stops you getting around unaided, using public transport, walking, sitting, standing, bending, reaching or getting around in an unfamiliar place. This could be because of a physical condition, such as chronic heart disease; a mental health condition, such as severe anxiety; or a sight impairment. For example, if you have difficulty in: • travelling a short distance in a car as a passenger • using one or more forms of public transport • walking other than at a slow pace or with jerky movements • going up or down steps or steep hills • going out of doors by yourself then it is likely you have a condition which has a substantial adverse effect on your mobility. However, if you experience some discomfort only after you have walked for about one-and-a-half kilometres or a mile, or have travelled as a passenger in a car for more than about two hours, and there are no other effects of your impairment, it is unlikely that this would be regarded as having a substantial adverse effect.

Manual dexterity
Loss of function in one or both hands (especially if it is the hand you use the most) or inability to manipulate small objects is regarded as a substantial adverse effect. But the level of loss of function must be considered. If you cannot use a knife and fork at the same time, press keys on a keyboard at the same speed as someone who does not have an impairment or co-ordinate the use of both hands together, then your impairment is likely to have a substantial adverse effect. However, if the adverse effect is, for example, that you cannot thread a needle or that you cannot type at speeds standardised for secretarial work, it is unlikely that you would be considered to have a substantial adverse effect.

Physical coordination
This is the control you have over your body and includes hand–eye coordination. You should consider whether carrying out more than one activity at the same time is challenging. For example, is it difficult to walk and use your hands at the same time? Examples of having a substantial adverse effect include finding it difficult to pour liquid from one container to another or to put food in your mouth without unusual concentration or assistance.

However, if you are simply a bit clumsy or can’t catch a ball, and this is the only effect of your impairment, it is unlikely that this would be considered as having a substantial adverse effect.

Continence
This covers the ability to control the release of urine or faeces. The frequency and extent of loss of control is considered. If you have infrequent loss of bowel control which is entirely unpredictable and leads to immediate major soiling, then this may reasonably be considered a substantial adverse effect, as would loss of bladder control while asleep at least once a month, and frequent minor loss of bladder or bowel control, particularly if it is unpredictable. However, infrequent loss of bladder control while asleep or infrequent minor leakage from the bladder is not considered a substantial adverse effect.

Ability to lift, carry or otherwise move everyday objects
What is important is whether you are able to lift, carry or move everyday objects over a reasonable period of time, or repeat these activities. Everyday objects include bags of shopping; briefcases; overnight bags; chairs or other light piece of furniture; kettles; or books. Having a substantial adverse effect might mean being unable to carry objects that were not very heavy with one hand or having difficulty carrying a loaded tray steadily. If you are unable to carry heavy luggage without help or move heavy objects without an aid such as a trolley, it is unlikely that this will be considered a substantial adverse effect

Speech, hearing and eyesight
This includes the ability to speak, hear or see and communication, either face-to-face, on the telephone or in writing. Speech When considering substantial adverse effects, the ability of a person to speak clearly at a normal pace and rhythm and to understand someone else speaking normally in their own language must be considered. If you can’t give clear basic verbal instructions or ask questions to clarify instructions, or it takes you a lot longer to speak than someone without a speech impairment, then it is likely that this will be considered a substantial adverse effect. However, if you have a minor speech impediment, stutter or lisp, or are unable to speak in front of an audience because of nervousness, it is unlikely this will be considered a substantial adverse effect. If you have difficulty talking in a language that is not your native language, it does not qualify as a substantial adverse effect. Hearing If you use a device such as a hearing aid, you should consider what your

hearing is like without the device and how that would affect you, particularly where the level of background noise is within the range at which most people would be able to hear adequately. If you have difficulty hearing someone talking at a level normal for everyday conversations or understanding a person speaking clearly on a voice telephone, it is likely that this will be considered a substantial adverse effect. However, inability to hold a conversation in a very noisy place such as a factory floor or busy building site is unlikely to amount to a substantial adverse effect. Eyesight You need to think about what your vision is like while wearing any glasses or contact lenses which could be used to correct your sight. This is unusual for the DDA, because a ‘substantial adverse effect’ is always considered without aids and corrections apart from in relation to sight. It is likely that a condition will be considered as having a substantial adverse effect on you if, even with sight corrected by glasses or contact lenses, you cannot pass the eyesight test on a standard driving test; have difficulty recognising by sight a known person across a moderately-sized room; are completely unable to distinguish any colours; have difficulty reading ordinary newsprint; or have difficulty walking safely without bumping into things. If you can’t read very small print without a magnifying glass, recognise someone you know across a playing field or tell red from green, it is not reasonable to consider your condition as having a substantial adverse effect on you.

Memory or ability to concentrate, learn or understand
You need to consider your ability to remember, organise thoughts, plan a course of action and carry it out, take in new knowledge, understand spoken or written instructions, as well as the speed at which you are able to learn. You should also think about your ability to read and use numbers. Examples of a substantial adverse effect include:
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random loss of consciousness and confused behaviour persistent difficulty remembering the names of family or friends difficulty coping with minor changes in routine after a reasonable time not being able to write a cheque without help big problems following a short sequence such as a cooking recipe or a brief list of things to do in the house difficulty taking part in normal social interaction.

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It is not reasonable to say there is a substantial adverse effect if you:
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sometimes forget the name of a familiar person

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are not able to concentrate on a task for several hours are not able to fill in a long, detailed, technical document without help are not able to read faster than normal speed have minor problems with writing or spelling.

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Perception of the risk of physical danger
This includes underestimating and overestimating physical danger, including danger to your wellbeing. You need to consider whether you often do not carry out basic functions such as eating, drinking, sleeping, keeping warm or personal hygiene; are often reckless, putting yourself or others at risk; or you take excessive steps to avoid normal activities without good cause because of fear or anxiety. It is likely that there is a substantial adverse effect if you have difficulty working a piece of equipment safely; persistent difficulty crossing the road safely; if you do not eat when you need to; or if you can’t tell whether an object is very hot or cold by touch. It is not likely that there is a substantial adverse effect if you have a fear of real heights or you underestimate the risks involved in dangerous sports, such as mountain climbing.