In this guidance we talk about disabilities, including long-term health conditions.
Disability is legally defined in the UK.
Focusing on support
We are including information about who is a disabled person, as people told us they would like to see it in this guidance.
Deciding whether someone is covered by the definition of disability as provided in equality legislation can be complex and time consuming. Any process that focuses on 'entitlement' to support, as opposed to the best method of support for someone, is unlikely to meet our expectations when it comes to supporting learners, as described in Promoting excellence.
The legal definition of disability
The Equality Act 2010 ('the Act') and Disability Discrimination Act 1995 ('DDA') define a disabled person:
1. 'A person has a disability if:
a. They have a physical or mental impairment, and
b. the impairment has a substantial and long-term adverse effect on the person's ability to carry out normal day-to-day activities.'
Disability affects a great amount of people. There are nearly 13.3 million disabled people in the UK, nearly one in five of the population.
Breaking down the components of the definition
· It may not always be possible (or necessary) to categorise a condition as either a physical or a mental impairment. It is not necessary to consider the cause of an impairment.
· 'Substantial' - more than minor or trivial.
· Long-term' - the effect of an impairment is long-term if:
· It has lasted for at least 12 months;
· It is likely to last for at least 12 months; or
· It is likely to last for the rest of the life of the person affected.
Disability includes situations where an impairment stops having a substantial adverse effect on a person's ability to carry out normal day-to-day activities, but the effect is likely to reoccur. The Disability Discrimination Act 1995 defines 'normal day-to-day activity'. The Equality Act 2010 does not define this. However, the guidance published alongside the Act gives some advice (pages 34-35).
Organisations must consider all of the factors above when deciding whether a person is disabled. We expect organisations to approach the issue in an open, supportive way.
If there is doubt about whether an individual will be covered, an organisation can choose to focus on identifying reasonable adjustments and support measures that will assist them. A court or a tribunal ultimately decide if there is a dispute on whether someone meets the legal definition.
What does the definition cover?
The definition covers a range of conditions that may not be immediately obvious from reading it. Many people who are covered by the definition of a disabled person do not describe themselves as disabled and so may not think of asking for support or reasonable adjustments.
For example, the definition may cover:
· Fluctuating or recurring conditions such as rheumatoid arthritis, myalgic encephalitis (ME), chronic fatigue syndrome (CFS), fibromyalgia, depression and epilepsy, even if the person is not currently experiencing any adverse effects.
· People with HIV, cancer and multiple sclerosis are deemed as disabled as soon as they are diagnosed.
· Other progressive conditions, such as motor neurone disease, muscular dystrophy, and forms of dementia.
· A person who is certified as blind, severely sight impaired, sight impaired or partially sighted by a consultant ophthalmologist is deemed to have a disability.
· Severe disfigurement is treated as a disability.
· A range of conditions are treated as a disability, as long as the other factors from the definition are met, in terms of having substantial and long-term impact on the ability to do normal day to day activities:
· Sensory impairments, such as those affecting sight or hearing.
· Auto-immune conditions such as systemic lupus erythematosis (SLE).
· Organ specific conditions, including respiratory conditions such as asthma, and cardiovascular diseases, including thrombosis, stroke and heart disease.
· Developmental conditions, such as autistic spectrum disorders (ASD) and Attention deficit hyperactivity disorder (ADHD).
· Specific learning difficulties, such as dyslexia and dyspraxia.
· Mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias; eating disorders; bipolar affective disorders; obsessive compulsive disorders; personality disorders; post-traumatic stress disorder, and some self-harming behaviour.
· Mental illnesses, such as depression and schizophrenia.
· Impairments produced by injury to the body, including to the brain.
· Someone who is no longer disabled, but who met the requirements of the definition in the past, will still be covered(for example, someone who is in remission from a chronic condition).
· Someone who continues to experience debilitating effects as a result of treatment for a past disability could also be protected (for example, someone experiencing effects from past chemotherapy treatment).
The guidance produced for the Act and DDA says it cannot give an exhaustive list of conditions that qualify as impairments. There are exclusions from the definition, such as substance addiction or dependency, or tendency to set fires, steal, and abuse of other persons, which can be found in the guidance published along the Act(Section A12, page 11).
Mental health and disability
A mental health condition can be considered to be a disability according to the definition. But not every mental health condition will be considered as a disability.
For a mental health condition to be considered a disability, it has to meet the criteria in the definition; to have a substantial and long-term adverse effect on normal day-to-day activity. Examples are given in the guidance published alongside the Act.