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'Disability': longer-term variations

Likelihood of recurrence
Past disability

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

The "2011 Guidance" means the official Guidance on matters to be taken into account in determining questions relating to the definition of disability (link to ODI) website, pdf).
This has effect from 1st May 2011, replacing the 2006 guidance, unless the act complained of was before 1st May or is a continuing act which started before 1st May. See further 2011 guidance.

Broadly speaking, an impairment is treated as long-term (and so potentially within the Act) if it lasts or is likely to last at least twelve months (EqA Sch 1 para 2). For older children and adults it will generally be obvious that this test is fulfilled.

There is a separate page on Stammering starting in adulthood, which is much less common than stammering starting in early childhood, and where it will be necessary to consider whether it has lasted or is likely to last 12 months.

This page focusses though on a long-standing stammer, and the issue of the legal position where for a substantial period the stammer does not have a substantial effect on normal day-to-day activities. (This may well not apply to many people!)

In looking at periods when a stammer is much improved due to therapy or speech techniques, it should first always be remembered that the stammer might be treated as continuing as if the help weren't here, so that the person is still "disabled" and the following is irrelevant (see the section on "Therapy...").

What is dealt with in the following are two further grounds on which a person whose current stammer (if any) does not have a substantial adverse effect may argue he still has a disability - namely

Likelihood of re-occurrence

Where an impairment ceases to have a substantial adverse effect, it is treated as continuing to have that effect if the effect is likely to reoccur (EqA Sch 1 para 2(2)).

How likely is 'likely'? It seems to be sufficient that a re-occurence 'could well happen'. It does not have to be 'more probable than not'. This was held by the House of Lords SCA Packaging v Boyle (2009), which departed from a different interpretation given in the then 2006 Guidance. This decision is reflected in para C3 of the 2011 Guidance: "'likely', should be interpreted as meaning that it could well happen".

The question has to be looked at as at the time of the alleged discrimination; it seems not to be relevant that a subsequent recurrence actually happened (Richmond Adult Community College v McDougall, 2008, Court of Appeal).

There is more on the meaning of 'likely' in section C of the 2011 Guidance.

Likelihood of relapse after course?

One example where this could apply is where a significant stammer pretty much disappears because of a recent course. If the substantial (i.e. more than minor or trivial) effect is likely to - in the sense of 'could well' - reoccur (not necessarily permanently), the person is still treated as disabled. This is a very real possibility as relapse after treatment is a significant issue for people who stammer.

Natural fluctuation of stammer

The provision is also likely to apply to where a stammer just varies over time. A person may have become substantially fluent after having had a more severe stammer and can only now expect the occasional difficult patch. It seems that the stammer is treated as continuing in its more severe state provided the person could well occasionally - possibly even rarely - have occasions when the stammer has the required substantial (ie more than minor or trivial) effect on the ability to carry out normal day-to-day activities.

It is not clear whether likely re-occurrences could be single occasions or would need to be a bit more protracted. Possibly a comparison with epilepsy implies that single occasions can be enough.

Past disability

Most of the Equality Act's protection extends to past disabilities (EqA s.6(4); and see also EqA Sch 1 para 9 on which law is to be used.)

Thus a stammer can be protected as a past disability if its effects on normal day-to-day activities were substantial but are no longer (para C12 of 2011 Guidance). It is not clear that this helps if the discrimination is on the basis of the current stammer rather than having had one in the past - though hopefully in this case the stammer will be treated as a present 'disability'.

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Last updated 16th July, 2011