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Hiding the stammer - para B8 example

The example at paragraph B8 of the 2006 Guidance (now no longer in force) was very problematic. This pages discusses the problems. For a broader view of how avoidance under the Equality Act, see the relevant part of my 'Hiding the stammer' page.

This 2006 guidance is no longer in force, having been replaced by the 2011 guidance with effect from 1st May 2011.

"EqA" or "Equality Act" means the Equality Act 2010 (link to legislation.gov.uk)

The "2006 Guidance" means the official Guidance on matters to be taken into account in determining questions relating to the definition of disability (link to EHRC website, pdf).
This guidance is on longer in force, having been replaced by the 2011 guidance from 1st May 2011.

Introduction

The example at paragraph B8 of the 2006 Guidance finishes by saying that in determining whether the person has a disability within the DDA (or Equality Act 2010) "consideration should be given to the extent to which it is reasonable to expect her to place such restrictions on her working and domestic life". See box below for the full text of the example.

It is unclear what this means. Most of this page (basically the 'Criticisms' section below) addresses the possible interpretation that the avoidance is irrelevant if it is reasonable for her restrict her life by avoiding in that way. I deal at the end with another possible interpretation.

Criticisms

Disregards statutory test of normal day-to-day activities

Example at para B8 in 2006 guidance:

"In order to manage her condition, a woman with a persistent stammer uses coping strategies, such as avoiding using the telephone, not giving verbal instructions at work, limiting social contact outside her immediate family, and avoiding challenging situations with service providers. As a consequence, it may not be readily obvious that she has an impairment which adversely affects her ability to carry out normal day-to-day activities.

"In determining whether she meets the definition of disability, consideration should be given to the extent to which it is reasonable to expect her to place such restrictions on her working and domestic life."

The most important point is that there is nothing in the DDA (or Equality Act 2010) to say one should look at how it is reasonable to restrict her life.

The statute says one must look at whether there is a substantial effect on ability to carry out normal day-to-day activities. So far as the activities mentioned in the example are normal day-to-day activities (eg using the telephone, normal social contact), avoidance of those activities should be capable of being a substantial effect within the statute (for the reasons given under 'Avoiding situations, or keeping Quiet', on my 'Hiding the stammer' page). So far as the activities mentioned in the example are not normal day-to-day activities, presumably they would not fall within the statute.

If the statement in the example is interpreted as described above, it would mean that an effect on normal day-to-day activities is not relevant if it would be reasonable for the person to restrict their life by not undertaking them. So activities must be not only 'normal day-to-day' but also not ones the person can be reasonably expected to avoid. There is no legal basis for this view.

Inconsistent with message on 'avoidance strategies'

The text of para B8 says: "It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person." The example is clearly of avoidance strategies used by a person who stammers (they are not ways to 'manage' a stammer - see below). It is difficult to square that text with the example.

These are not ways to 'manage' a stammer

The example is also misleading, and gives the wrong message to people who stammer and others, when it suggests that the instances given in the example are ways to 'manage' the condition. A therapist would generally encourage a person who stammers to go into situations they are avoiding rather than restrict their life. For more on this, see Common sense.

Is the example a misapplication of para B7?

I suspect it is. Paragraph B7 of the 2006 Guidance says that one looks at whether steps could reasonably be taken so that the impairment ceases to have a substantial effect on ability to carry out normal day-to-day activities. (One may doubt whether this is correct in law, but let us go along with it for present purposes. See more on para B7.) Para B7 continues that it would, for example, be reasonable to expect a person with back pain to avoid parachuting. It would not be reasonable though to expect him or her to give up, or modify, more normal activities that might exacerbate the symptoms; such as moderate gardening, shopping or using public transport.

The discussion in para B7 of what activities it would be reasonable to give up makes me suspect that the similar wording in the B8 example is intended to refer back to it. However the para B8 example is talking about something completely different from para B7.

Para B7 seems to talking about activities that exacerbate one's symptoms beyond the actual activity being undertaken. Parachuting and gardening, for example, can make one's back more painful for at least a while afterwards. However, avoiding speaking situations, for example avoiding a phone call, does not improve one's ability to speak in those or any other normal day-to-day situations.

Viewing the same point from another direction, para B7 asks what steps could reasonably be taken to increase one's ability to carry out normal day-to-day activities. Para B7 is correct in saying that one must look at the person's 'ability' to do activities rather than whether he actually does them - see Goodwin v Patent Office. However avoiding situations such as phone calls in no way increases the ability of a person who stammers to make phone calls, or to speak in other situations. Even if avoiding phone calls were found to be a reasonable way to restrict one's life, it would do nothing to reduce any substantial effect of the stammer on the person's ability to carry out normal day-to-day activities. (Incidentally, it would be inconsistent with the para D25(1) example to say that avoiding phone calls was a reasonable way to restrict one's life - and see also the next paragraph on what restrictions are reasonable.)

If I am right that the para B8 example was intended to link up with para B7, it is therefore the result of flawed thinking. It is interesting though - and may be helpful - that para B7 gives such an extreme example of an activity which it would be reasonable for a person to avoid, namely parachuting. This may indicate (despite the flawed thinking) that ways in which it would be reasonable for a person to restrict their life as described in the para B8 example are limited to quite extreme situtations. These may well not be normal day-to-day activities in any event, so that one would rightly expect them not to bring the person within the definition of 'disability'. This does not make the example correct, by may perhaps neutralise its effect if it is applied (which I don't think it should be).

Impractical and perhaps offensive

If one tries to think about how on earth a tribunal would go about deciding whether it is reasonable to expect a disabled person to restrict their life in a particular way, one sees it would give the tribunal a huge amount of discretion. It very much depends on one's view of disabled people. Some may feel they should live restricted lives, some may think that if a person wants to do something then why not.

Personally I also find it rather offensive that tribunals should be asked to decide this. It is not an issue of whether the person can do a particular job, but in what circumstances should he be been seen as not having a disability at all because if he reasonably restricts his activities he does not stammer.

Bear in mind also that whilst para B8 takes stammering as an example, it presumably applies equally to all disabilities. The tribunal seems to be asked to look at what it would expect a hard-of-hearing person to give up for example - and if it is reasonable to expect him or her to give it up it does not count towards the person having a disability within the DDA or Equality Act.

Possible alternative interpretation?

Another possible interpretation of the final sentence of the para B8 example is that avoidance is only taken into account as having a substantial effect on normal day-to-day activities if it is reasonable to expect the person to avoid.

This makes a bit more sense at first sight. I don't think the example is intended to mean that, but I suppose it is just possible. It if did mean that, I do not see how it would be consistent with the legal position, particularly Goodwin v Patent Office (see more generally 'Avoiding situations, or keeping Quiet', on my 'Hiding the stammer' page), or indeed with the example in para D25(1). Also when avoidance is part of the complex that goes to make up a stammer, it seems nonsensical to ask whether the avoidance is something it is reasonable to expect the person to do. You might as well ask how reasonable is a fear of flying, or of spiders.

Hiding the stammer

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Last updated 3rd June, 2006