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					                                                         Disability Intelligent
                                                                  Because independence matters

There are two main definitions used when considering what constitutes a disability. The
one being broadly applied in the UK is the one adopted in the Disability Discrimination Act
(DDA) and so it is here that we will start. The DDA states:

A disabled person is someone with 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.

This factsheet is an attempt to explain this statement and some of the phrases in it

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 & Long-term

When carrying out day to day tasks, the following should be taken into consideration.

   •   The time taken to carry out an activity compared to someone who is not disabled.
   •   Is the way in which an activity is carried out very different from how most people
       would perform the task and this is done because of the disability?
   •   The effect of several small impairments grouped together

If changing behaviour reduces the adverse effects of the impairment on day-to-day activity
then this may not be covered by the Act. It must be noted however, that people do not
have to go to great lengths to change their behaviour. For example, a person with a
stutter does not have to avoid going to places where they might meet people as this
change could itself have an adverse effect on their day-to-day activities. If the success of
the ways you try to reduce the adverse effect of your disability is lessened by
environmental factors, for example, extreme heat, humidity, how tired you are or how
stressed you are, then this should be taken into account.

Long-term

This means that the impairment has lasted or will last, 12 months or more from the onset
or for the rest of a person’s life, whichever comes sooner. The effects of some people’s
conditions come and go. However, if the adverse effects are more likely than not to
happen again within a 12 month period then it is likely that the person will be covered by
the DDA

Within this section we also need to look at the effects of treatment. In most cases the
treatment or equipment that a person uses for their disability or health condition should not
be considered in deciding whether they are disabled in terms of the law. Even if the
impairment is not obvious but without treatment would create substantial adverse effects,
then it should be considered a disability. In most cases, the law applies to people whose
condition would have a big effect on them were it not for medication or treatment.
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                                                       Disability Intelligent
                                                                Because independence matters



Therefore, 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 they are likely to be
disabled according to the DDA. The only exception is glasses or contact lenses, so those
people whose impairment is corrected by glasses are not covered. People who have
progressive illnesses are usually covered by the DDA from the moment the impairments
related to the condition begin to have an effect on the person’s day-to-day life. Having a
diagnosis with no symptoms may allow you to qualify depending on the severity, likely
degeneration and nature of the disability.

Another notable exception is severe disfigurements, which are usually covered by the
DDA. Their effects do not need to be assessed for a disfigurement to be considered
substantial. The degree and positioning of the disfigurement will be taken into account not
the impact on day-to-day activities.

Normal Day to Day Activities

These involve one or more of the following:

   •   Doing something with your hands
   •   Physical coordination
   •   Continence
   •   The ability to lift, carry or move everyday objects
   •   Speech, hearing or eyesight
   •   Memory or ability to concentrate, learn or understand
   •   Perception of the risk of physical danger

Sometimes it is clear that if a person has difficulty with one of the above then it will have
an impact on a variety of day-to-day activities. A person who was unable to walk would not
need to show how this would have an adverse substantial effect, for example. However,
these individual areas deserve some further attention in order to clarify what may or may
not demonstrate that a person meets the definition of disability in the DDA.

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, like chronic heart disease, a mental health condition, like anxiety, or a sight
impairment. Consider if a person is;

   •   Unable to travel a short distance in a car as a passenger
   •   Unable to use one or more forms of public transport
   •   Have difficulty in walking either slowly or without jerky movements
   •   Have difficulty going up or down steps or steep hills
   •   Have difficulty going through doors by yourself


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                                                        Disability Intelligent
                                                                 Because independence matters

Then it is likely they have a condition which has a substantial adverse effect on their
mobility. However, if the adverse effects occur after you have walked for one and a half
kilometres or a mile, or you are unable to travel as a passenger for more than two hours,
and this was your only limitation, it would be unlikely that you would have a substantial
adverse effect.

Manual dexterity & Physical Co-ordination

Loss of function in one or both hands especially if it is the hand used the most, or inability
to control small movements would amount to a substantial adverse effect. However, the
level of loss of function must be considered. If someone cannot use a knife and fork at the
same time, press keys on a keyboard slowly or use both hands simultaneously then they
are likely to have a substantial adverse effect. However, if the adverse effect is, for
example, that they cannot thread a needle or cannot type as quickly as others, it would be
unlikely that you would be considered to have a substantial adverse effect.

Physical Co-ordination is the control a person has over their body and includes hand-eye
coordination. You should consider whether carrying out several activities at the same time
is challenging. For example, does the person find it difficult to walk and use their hands at
the same time? Examples of having a substantial adverse effect would include finding it
difficult to pour liquid from one container to another or to put food in their mouth without
difficulty. However, if a person is just clumsy or can’t catch a ball, and this is their only
limitation, it is unlikely that they 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 there is infrequent loss of bowel control then this would
be considered a substantial adverse effect, as would loss of bladder control whilst asleep
at least once a month, frequent loss of bladder or bowel control. However, infrequent loss
of bladder control whilst asleep or infrequent minor leakage from the bladder would not be
considered a substantial adverse effect.

Ability to lift, carry or otherwise move everyday objects

What is important is whether a person is able to lift, carry or move everyday objects over a
reasonable period of time, or repeat these activities. This includes bags of shopping, a
briefcase, an overnight bag, a chair or other light piece of furniture, a kettle of water or
books. Having a substantial adverse effect might mean being unable to carry objects that
were not very heavy with one hand or being unable to carry a loaded tray steadily. Being
unable to carry heavy luggage without help or move heavy objects without an aid such as
a trolley this would be unlikely to be considered a substantial adverse effect.

Speech

For a person to be considered to have a substantial adverse effect, the pattern, rhythm
and clarity of speech in their own language must be considered. If someone is unable to
give clear basic verbal instructions or to ask questions to clarify instructions or it takes

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                                                        Disability Intelligent
                                                                  Because independence matters

them a lot longer to speak than most people, then it is likely that they would be considered
to have a substantial adverse effect. However, if they had a minor speech impediment,
stutter or lisp, or were unable to speak in front of an audience then this would be unlikely
to be considered a substantial adverse effect. If someone has difficulty talking in a
language that is not their mother tongue, then this would not qualify as a substantial
adverse effect.

Hearing

If a person uses a device such as a hearing aid, then consideration should be given to how
this loss of hearing would affect them without that device. Think about the effect
background noise has on hearing in comparison to others when experiencing the same
level and type of noise. If they are unable to talk to someone without raising their voice or if
someone could not hear or understand a person speaking clearly on a voice telephone it
would be likely that this would be considered a substantial adverse effect. However, not
being able to hold a conversation in a very noisy place such as a factory floor or busy
building site would be unlikely to be covered.

Eyesight

To consider whether there is substantial adverse effect on a persons sight, we need to
think about how their vision is with the correct glasses and/or contact lenses and with a
light level and type size that would be acceptable to most people for day-to-day visual
activities. 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 would be
reasonable to regard a person has having a substantial adverse effect if they could not
pass the eyesight test on a standard driving licence examination, recognise by sight a
known person across a moderately-sized room, were completely unable to distinguish
colours, could not read ordinary newsprint or walk safely without bumping into things using
glasses or contact lenses. However, it would not be reasonable to regard someone as
having a substantial adverse effect if they were unable to read very small print without a
magnifying glass or recognise someone they knew across a playing field or could not tell
red from green.

Memory or ability to concentrate, learn or understand

When considering this area, account should be taken of the 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 a person is able to learn. Also
consider their ability to read and use numbers. Examples of a substantial adverse effect
include;

   •   Random loss of consciousness
   •   Confused behaviour
   •   Never being able to remember the names of family or friends
   •   Not being able to cope with minor changes in routine
   •   Not being able to write a cheque without help
   •   Serious difficulty following a short sequence, such as a cooking recipe.

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                                                         Disability Intelligent
                                                                   Because independence matters

It would not be reasonable to say there was a substantial adverse effect if a person
sometimes forgets the name of a familiar person or are not able to concentrate on a task
for several hours. Similarly if you are not able to fill in a long, detailed, technical document
without help or are not able to read faster than normal speed or have minor problems with
writing or spelling.

Perception of the risk of physical danger

When considering how people see the risk of physical danger both playing down and
playing up the risks needs to be considered and should include dangers to well-being. If a
person often does not carry out basic functions such as eating, drinking, sleeping, keeping
warm or personal hygiene; is often reckless which puts them or others at risk, or takes
unnecessary steps to avoid normal activities without good cause because of fear or
anxiety, then these should be considered. A substantial adverse effect would be likely if
they were not able to work a piece of equipment safely, could not cross the road safely, did
not eat when they needed to or were unable to tell whether an object was very hot or cold
by touch.

However, a substantial adverse effect is not likely because of a fear of real heights or the
taking part in dangerous sports such as mountain climbing. The purpose of this exercise is
to identify whether it is likely that you will be covered by the DDA. It is only the courts that
can categorically decide whether you are covered

Previous disability

An employer should not assume that someone cannot do a job because of a past or
current disability. People can judge for themselves and should be given the chance to
prove their ability. If you have had a disability as described by the DDA and an employer
treats you unfairly as a result of this, then you will still be covered. It is unlawful for an
employer to treat a person less favourably if they have had a disability in the past.

For example; a woman had suffered from clinical depression for two years after the birth of
her child and subsequently applied for a job as a senior HR manager. On the medical
questionnaire she declared the period of depression and stated truthfully that this had
occurred four years previously. After being offered the job subject to references and
medical clearance, the offer was withdrawn. On questioning, the employer said that the job
was high pressure and they were concerned that it might cause a recurrence of her
condition. This woman would be covered under the DDA and the employers actions would
be deemed unlawful.




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