Legal Ease – The legal definition of ‘disability’

Legal Ease – The legal definition of ‘disability’

This resource is part of our Disability Essentials range. You can find here the other free resources that are included in this range.

---

What is a disability?

The Equality Act 2010 gives rights to disabled people who have, or have had, a disability which makes it difficult for them to carry out normal day-to-day activities. The term ‘disability’ covers both physical and mental impairments that have a substantial and a long-term effect on the person’s ability to carry out normal day-to-day activities.

A long-term effect is one which has lasted, or is expected to last, at least 12 months or the rest of the person’s life if shorter. Medical or other treatment and aids which alleviate or remove the effect of the impairment are to be disregarded when assessing whether the impairment has a substantial adverse effect on normal day-to-day activities.

This means people with conditions such as insulin dependent diabetes, epilepsy or depression for which they take medication and people who use prosthetics may be protected. The effect on normal day-to-day activities must be assessed as if the person was not taking the treatment. Treatment has been held in some cases to include psychotherapy and physiotherapy. A court will consider what effect the person’s depression might have had on them if they had not been receiving regular psychotherapy or physiotherapy sessions.

The exception is people who wear spectacles or contact lenses – the effect on them must be assessed while the person is wearing the spectacles or contact lenses.

Progressive conditions

Progressive conditions, such as rheumatoid arthritis, which initially may have a slight effect on day-to-day activities but are expected to have a substantial effect over time, are covered, as are conditions that have a substantial effect for short periods but are likely to recur, for example epilepsy.

Deemed disabilities

HIV, multiple sclerosis and cancer, however, are deemed to be disabilities from the date of diagnosis. People with severe disfigurements are also deemed to be disabled by the Act, as are people who are registered as blind or partially sighted with their local authority or an ophthalmologist.

Past disabilities

People who have had a disability in the past which had a substantial adverse effect on their normal day-to-day activities for a period of at least 12 months are also protected by the Act. This is the case even if their disability existed before the Equality Act 2010 or its predecessor, the Disability Discrimination Act 1995 (DDA) came into force and they have now fully recovered.

Exceptions

Some conditions are, however specifically excluded from protection under the Equality Act 2010. These are:

• Tendency to set fires
• Tendency to steal
• Tendency to physical or sexual abuse of others
• Exhibitionism
• Voyeurism
• Seasonal allergic rhinitis
• Addiction to alcohol, nicotine or another substance (unless the addiction was originally the result of administration of medically prescribed drugs or other treatment).

If, however, a person develops another condition as a result of or associated with an excluded condition (for example, liver disease as a result of an addiction to alcohol) this condition might be a disability in its own right. It doesn’t matter that it was caused by the excluded condition. If the consequential condition or illness has a long-term and substantial adverse effect on the person’s ability to carry out normal day-to-day activities, they will be protected by the disability provisions of the Equality Act 2010.

Why is the legal definition of disability important?

There is always a risk of both litigation and loss of reputation if an employer or service provider fails to follow the requirements of the law because they assume that an employee or customer will not meet the definition of disability. Remember that the purpose of a reasonable adjustment is to enable an employee to perform to the best of their ability or for a customer or service user to access your services.

If you are uncertain whether an individual is covered by the Act, you should assume that they are and make any reasonable adjustments that are necessary for them to do their job or use the service you offer.