Guidance on the definition of disability

OFMDFM consultation

January 2007  

1.  Introduction

1.1 Law Centre (NI) is a public interest law non-governmental organisation.  We work to promote social justice by providing specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland.  We provide a specialist legal service (advice, representation, training, information and policy comment) in five areas of law: immigration, social security, community care, mental health and employment.

1.2  The services are provided to almost 500 member agencies.  Members include local Citizen Advice Bureaux, independent advice agencies, local solicitors, trade unions, social services, probation offices, constituency associations of local political parties, libraries and other civic organisations. 

1.3 We welcome the opportunity to respond to this consultation document as we have a particular interest in disability matters.  Guidance on the definition of disability is of particular relevance to our mental health and community care services.  The community care legal representation service deals with personal and support services for a range of people including those who are elderly, ill, disabled, incapacitated and carers.  Our community care advice line operates from both our offices and our community care legal representation service provides training for trusts and social services.  The mental health legal representation service offers legal representation for issues around admission to hospital for assessment, capacity, treatment, discharge delay, community services and other mental health related legal issues.

1.4 We welcome the extension of rights for people with disabilities through the Disability Discrimination Act (DDA).  The widespread recognition of the need for more positive action on the part of public authorities to promote and protect the rights of people with disabilities is long overdue and we are encouraged by the significant changes in legislation and policy that have occurred over the last few years.  There is an expectation that this momentum will continue to ensure that people with disabilities are finally on an equal footing with people without disabilities in all aspects of everyday life. 

1.5 Below we make some general comments in response and address the questions, which were posed for consultation.
 

2.  Summary of Recommendations

We welcome the revised version of this guidance, which is updated and revised to take into account the important changes to the DDA and to include reference to the Disability Discrimination (Northern Ireland) Order 2006 (the DDO).   We have, however, some recommendations to make regarding the current draft of the guidance.  We comment in more detail on each of these recommendations within the body of the paper and have highlighted the appropriate paragraphs for ease of reference.  In summary we recommend the:

	simplification of the format of highlighting parts of the text; (3.2 & 4.3)
	guidance to be made publicly accessible and available in alternative easy read formats; (3.3)
	development of a separate section on children with a disability for ease of reference; (3.4)
	inclusion of a summary section to conclude the guidance; (3.5)
	guidance include further specific reference to the need to satisfy all 4 elements of the definition of disability; (3.6 & 4.1)
	elaboration of the standard of proof of mental illness that is required in order for it to be regarded as an impairment for the purposes of the definition;  (4.6)
	citation of examples based upon case law. (5.3 & 6.3)

3.  Structure of the Guidance

Question 1: Do you think this structure is the right one?

3.1 We welcome the decision to maintain the same basic structure for the updated guidance as this builds on the format used for the original guidance and should therefore assist with an efficient transition to the new guidance. 

3.2 We appreciate that the formatting and structure of any guidance document is problematic given the quantity and detailed nature of the information included.  The guidance is an adequate format, reasonably clear and as concise as possible.  The numbering of the paragraphs and cross-referencing in the guidance is helpful.  The varying use of bold and boxed text, however, can be confusing.  This is particularly evident in Section D, where bold, boxed and bullet pointed text are all used.  Consideration needs to be given to how to highlight certain parts of the text in a clearer way as the current structure is somewhat untidy. 

3.3 Although the guidance is primarily designed for courts and tribunals it is also an important document for a range of individuals and organisations with an interest in disability matters.  It is therefore, important that the guidance is accessible to the wider population, including people with disabilities, and should be made available in alternative easy read formats. 

3.4 A separate section on children with a disability should be included for ease of reference.  We appreciate that this section has been included under Section D as it refers to the ability of children to carry out normal day-to-day activities. However, for ease of reference a separate section on children should be included. 

3.5 Consideration should also be given to the inclusion of a summary section at the end of the guidance to reiterate the major points and provide a firm conclusion to the document.  

Question 2: Do you think this format helps towards an understanding of how the individual elements of the definition of disability interrelate?

3.6 The format provides a reasonable guide to how the individual elements of the definition of disability interrelate and outlines the criteria that need to be met in order to qualify under the definition of disability.  The guidance should be more explicit, however, regarding the need to satisfy all elements of the definition of disability.  The guidance states that ‘those using the guidance for the first time should read it all, as each part of the guidance builds upon the part(s) preceding it’.  This is stated in the introduction but for clarity should be repeated in Section A to confirm that all four elements must be present in order for someone to meet the definition of disability. 

4.  Text of the Guidance: Question 3

Do you think the text is clear enough in its explanation of how the definition of disability works?

4.1 The text is clear and the language is easily understood.  We refer to our comments above, however, concerning the need to be more explicit regarding the requirement to satisfy all elements of the definition of disability. 

4.2 We welcome the recognition in the guidance that there are a wide range of impairments and that some impairments, though not so immediately obvious as others, may still be included within the definition of disability.  It is important that the guidance highlights the wide ranging meaning of ‘impairment’ to ensure that people with impairments are not incorrectly excluded from meeting this element of the definition of disability. 

Question 4: Do you think there are any parts of the text that are hard to understand? 

4.3 Overall, the guidance reads well and is easy to understand.  Section D contains the most information and has frequent use of examples and formatting styles, which makes it more complex than preceding sections.  As referred to at point 3.2, work needs to be done to ensure the information is presented in an effective format.

Question 5: Do you think it is equally clear how a person with a mental impairment is covered, compared to a person with a physical impairment?

4.4 The DDO was a welcome development for people with mental health problems in amending the DDA to remove the requirement that where 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.  It is vital that the guidance clearly states this change in legislation to avoid any confusion. 

4.5 The frequent use of examples of mental impairments within the guidance and the acknowledgement that people may suffer from physical and/or mental impairments is welcome.  Equally, the emphasis on the list of ‘capacities’ in Schedule 1, Paragraph 4 of the DDA in relation to the relevance to people with mental and physical impairments is a positive development. 

4.6 While we appreciate the standard of proof is for determination by the courts through the development of case law.  Further information regarding the standard of proof of mental illness that is required in order for it to be regarded as an impairment for the purposes of the definition would be helpful. 

5.  Examples in the Guidance: Question 6

Do you think other parts of the text would benefit from examples?

5.1 We believe there are sufficient examples in all sections and no further examples are required. 

Question 7: Do you think the examples are helpful in adding to an understanding of the related text?

5.2 The use of examples is very helpful to the overall understanding of the related text.  We welcome the broad use of various impairments and situations within the examples used in the guidelines.  The use of frequent examples of mental impairments is particularly welcome as mental impairment, in its broadest sense, has not previously been recognised as part of the definition of disability. 

5.3 The examples within the guidance, especially in Section D, refer to circumstances where it would be or would not be reasonable to regard the adverse effect on normal day-to-day activities as substantial.  Further information regarding the source of the definition of ‘reasonable’ in these circumstances would be helpful and whether the examples have come from case law or alternative sources.  Where examples are drawn from case law, these should be referenced.

Question 8: Do you think there are particular points which you consider might usefully be illustrated by examples?

5.5 See 4.1         

6.  Section D of the Guidance: Question 9: Do you think the distinction between ‘capacities’ and ‘normal day-to-day activities’ has been made sufficiently clear?

6.1 The guidance provides a good base of information regarding ‘capacities’ and ‘normal day-to-day activities’.  The distinction is relatively clear and the use of examples helps to confirm this distinction and the need for both elements to be present in order to meet this part of the definition of disability. 

6.2 We welcome the recognition in Section D that physical impairments can result in mental effects and mental impairments can have physical manifestations.  It is encouraging that the guidance is clear in advising that one type of impairment is not limited to one particular effect on the ability to participate in normal day-to-day activities.

Question 10: Do you think the bullet point examples are clear enough and help to illustrate the concept of a substantial adverse effect on day-to-day activities?

6.3 The bullet point examples are helpful in providing an easy reference tool for what is, or is not, reasonable to regard as having a substantial adverse effect.  As referred at point 4.3, we would welcome further information regarding the source of the definition of ‘reasonable’ in the bullet point examples. 

7.      Conclusion

7.1 Law Centre (NI) welcomes the opportunity to respond to this consultation document.  We trust you will find our comments helpful.  If there is any further way in which we could contribute to this process we would welcome the opportunity to do so.