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( IRLR 23, EAT)
Mr Abadeh had suffered a blast of high pitched noise through an earphone. As a result he suffered a permanent hearing loss, tinnitus, and post traumatic stress disorder. However, the employment tribunal held the adverse effects were not substantial and so he was not disabled.
Mr Abadeh appealed to the EAT and, amongst other things, argued that the tribunal had not considered the psychotherpeutic treatment he had been receiving and whether the effect of that should be disregarded under Paragraph 6 of Schedule 1 of the DDA.
The EAT commented that where treatment has ceased the effects of that treatment should be taken into account in order to assess the disability. Paragraph 6 of Schedule 1 applies only to continuing medical treatment i.e. to measures that "are being taken" and not to concluded treatment where the effects of such treatment may be more readily ascertained.
"Where treatment is continuing it may be having the effect of masking or ameliorating a disability so that it does not have a substantial adverse effect. If the final outcome of such treatment cannot be determined or if it is known that removal of the medical treatment would result in either a relapse or a worsened condition, the medical treatment must be disregarded under paragraph 6 of Schedule 1. Where however the medical evidence satisfies the Tribunal that the effect of the continuing medical treatment is to create a permanent improvement rather than a temporary improvement, such permanent improvement should be taken into account as measures are no longer needed to treat or correct it once the permanent improvement has been established."
The EAT went on to illustrate its comments with two examples, in one of which it commented:
"... If however the accepted prognosis is that such stiffness [or walking], albeit still seriously disabling, will be resolved with further physiotherapy, such recovery can be taken into account..."
The EAT cites the Guidance at 1996 B6 dealing with the effects of treatment on recurring effects.
In the present case it was not clear on the medical evidence at present available to the EAT as to whether the improvement in the post traumatic stress disorder produced by the treatment was likely to be permanent or only temporary and likely to return once the treatment has ceased. The tribunal rehearing the matter would need to assess this on the evidence.
A full transcript of the judgment is available at www.employmentappeals.gov.uk/Public/Upload/EAT11249919102000.doc.
The EAT may have been saying that one can take into account the effects of future therapy if it can be determined that the therapy will result in there not being an impairment with the relevant substantial effects. This seems inconsistent with the legislation, and with the following statement by the Court of Appeal in the later case of Woodrup v London Borough of Southwark:
"One asks the question whether, if treatment were stopped at the relevant date, would the person then, notwithstanding such benefit as had been obtained from prior treatment, have an impairment which would have the relevant adverse effect?"
The Court of Appeal statement seems to be the correct one under the legislation, and I would expect it to be followed.
In any event, in the case of speech therapy for a person who stammers I do not see how the effect of future therapy could be determined. The point is therefore unlikely to be relevant for stammering.
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Last updated 2nd July, 2006