When is a person disabled?

A person has a disability if he has 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.

What about people who have recovered from a disability?

People who have had a disability within the definition are protected from discrimination even if they have since recovered.

What does ‘impairment’ cover?

It covers physical or mental impairments; this includes sensory impairments, such as those affecting sight or hearing.

Are all mental impairments covered?

The Act previously required that where an impairment arose from, or consisted of, a mental illness, that illness had to be clinically well-recognised in order for it to be regarded as a mental impairment for the purposes of the Act. The Disability Discrimination Act 2005 amended the original Act to remove this requirement with effect from 5 December 2005. However, anyone who has an impairment including one resulting from a mental illness will still need to meet the requirements of the definition, in order to demonstrate that they have a disability under the Act.

What is a ‘substantial’ adverse effect?

A substantial adverse effect is something which is more than a minor or trivial effect. The requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people.

What is a ‘long-term’ effect?

A long-term effect of an impairment is one:

■ which has lasted at least 12 months, or

■ where the total period for which it lasts is likely to be at least 12 months, or

■ which is likely to last for the rest of the life of the person affected. Effects which are not long-term would therefore include loss of mobility due to a broken limb which is likely to heal within 12 months and the effects of temporary infections, from which a person would be likely to recover within 12 months.

What if the effects come and go over a period of time?

If an impairment has had a substantial adverse effect on normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur; that is if it is more probable than not that the effect will recur.

What are ‘normal day-to-day activities’?

They are activities which are carried out by most people on a fairly regular and frequent basis. The term is not intended to include activities which are normal only for a particular person or group of people, such as playing a musical instrument, or a sport, to a professional standard or performing a skilled or specialised task at work. However, someone who is affected in such a specialised way but is also affected in normal day to day activities would be covered by this part of the definition. The test of whether an impairment affects normal day-to-day activities is whether it affects one of the broad categories of capacity listed in Schedule 1 to the Act. They are:

■ mobility

■ manual dexterity

■ physical co-ordination

■ continence

■ ability to lift, carry or otherwise move everyday objects

■ speech, hearing or eyesight

■ memory or ability to concentrate, learn or understand, or

■ perception of the risk of physical danger.

What about treatment?

Someone with an impairment may be receiving medical or other treatment which alleviates or removes the effects (though not the impairment). In such cases, the treatment is ignored and the impairment is taken to have the effect it would have had without such treatment. This does not apply if substantial adverse effects are not likely to recur even if the treatment stops (i.e. the impairment has been cured).

Does this include people who wear spectacles?

No. The sole exception to the rule about ignoring the effects of treatment is the wearing of spectacles or contact lenses. In this case, the effect while the person is wearing spectacles or contact lenses should be considered.

Are people who have disfigurements covered?

People with severe disfigurements are covered by the Act. They do not need to demonstrate that the impairment has a substantial adverse effect on their ability to carry out normal day-to-day activities.

What about people who know their condition is going to get worse over time?

Progressive conditions are conditions which are likely to change and develop over time. Examples given in the Act are cancer, multiple sclerosis,

Muscular dystrophy and HIV infection. Where a person has a progressive condition he will be covered by the Act from the moment the condition leads to an impairment which has some effect on ability to carry out normal day-to-day activities, even though not a substantial effect, if that impairment is likely eventually to have a substantial adverse effect on such ability.

What about people who are blind or partially sighted?

People who are registered as blind or partially sighted, or who are certified as being blind or partially sighted by a consultant ophthalmologist are automatically treated under the Act as being disabled. People who are not registered or certified as blind or partially sighted will be covered by the Act if they can establish that they meet the Act’s definition of disability.

Are people with genetic conditions covered?

If a genetic condition has no effect on ability to carry out normal day-to-day activities, the person is not covered. Diagnosis does not in itself bring someone within the definition. If the condition is progressive, then the rule about progressive conditions applies.

Are any conditions specifically excluded from the coverage of the Act?

Yes. Certain conditions are to be regarded as not amounting to impairments for the purposes of the Act. These are:

■ addiction to or dependency on alcohol, nicotine, or any other substance (other than as a result of the substance being medically prescribed)

■ seasonal allergic rhinitis (e.g. hayfever), except where it aggravates the effect of another condition

■ tendency to set fires

■ tendency to steal

■ tendency to physical or sexual abuse of otherpersons

■ exhibitionism

■ voyeurism.

Also, disfigurements which consist of a tattoo (which has not been removed), non-medical body piercing, or something attached through such

piercing, are to be treated as not having a substantial adverse effect on the person’s ability to carry out normal day-to-day activities.