DRC consultation

The Disability Rights Commission has launched a consultation* on whether the statutory definition of disability should be widened.

The central proposal on which views are sought is that the Disability Discrimination Act's definition of disability should be broadened so that the law would provide protection against discrimination on grounds of impairment, regardless of the level or type of impairment.

The consultation is open-ended, however, in that the DRC has not taken any position on the desirability of change. The consultation ends on 28 February 2006 and the DRC will then make a decision as to what to propose to the government. Any change would be introduced as part of a Single Equality Act, and would be expected to come into force in about 2010.

Proposed alternative

The DDA's current definition of disability requires a person to show that they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This means that claimants seeking to use the Act must first prove that they meet all the requirements of the statutory definition. Research has established that the single most common reason for DDA claims to be unsuccessful in an employment tribunal is that the claimant did not establish that they fell within the definition of disability.

The alternative definition was proposed by the joint parliamentary scrutiny committee, which considered what later became the Disability Discrimination Act 2005. The DRC was asked to consult on whether the DDA should be changed to provide protection against discrimination on grounds of impairment, regardless of the level or type of impairment. The committee took the view that the focus of anti-discrimination legislation should be on the nature and extent of discrimination, and not on the nature and extent of the claimant's impairment.

The DRC says that the law could simply provide protection against discrimination on the grounds of "impairment" (or an alternative term with the same meaning) without further elaboration. The absence of a definition, however, "might lead courts to impose a more restricted interpretation than intended" and so it may be preferable if there was "a clearer indication of what is meant by the term 'impairment'."

Potential advantages

The consultation points out that: "If the law were to be extended in this way it would be greatly simplified, in that there would be no need to establish whether a person's impairment has a long-term or substantial functional impact. Anyone with any level of 'impairment' would receive protection from discrimination and entitlement to the removal of disabling barriers. For example, a person with a broken leg or short-term depression would be protected from discrimination on this basis."

The DRC acknowledges that such a definition would be a "radical reformulation of the law" and would cover many people who are not generally considered to be disabled. It points out, however, that: "It may be helpful to move away from thinking about the DDA as being concerned with 'disabled people', and instead think of it as being about 'disability discrimination'. Being protected against disability discrimination would not make a person 'disabled' any more than being protected against race discrimination means that everyone is a member of an 'ethnic minority'. Some people experience more substantial disadvantage than others on the basis of their impairment. Such people might be considered to be 'disabled', in that they experience significant social exclusion on the basis of their impairment. A far wider group of people could be protected from potential disability discrimination."

A broader definition would shift the focus of enquiry away from an individual's medical condition, as is required under the current definition, and towards the allegation of discrimination. This would accord with the recommendation of the scrutiny committee, which suggested that the statutory definition should reflect the "social model" of disability rather than the existing medical model. The social model of disability identifies disabling barriers as the problem to be tackled, whereas the medical model focuses on the impairment itself as being the cause of any limitation to opportunities.

Widening the definition would also largely remove the need for complex (and expensive) litigation over the nature of a person's impairment. At present, if a claimant's disabled status is contested by the employer, there will often be a preliminary hearing to determine this issue, at which expert medical evidence from both sides as to the claimant's health and its effects will be presented. The DRC points out that: "All applicants who consider that they have been discriminated against have to begin a case by describing all the functional restrictions arising from their physical or mental condition - emphasising all the things that they can't do. The negative connotations of the present definition (with its emphasis on establishing that someone is unable to participate in 'normal' day-to-day activities) are at odds with its role in an anti-discrimination statute …

By broadening the definition to cover anybody with an impairment, the focus shifts from the individual's condition onto the need or otherwise for a reasonable adjustment and whether treatment is fair."

Possible concerns

The DRC notes that a major concern with adopting a broader definition of disability is that it would "diminish credibility and trivialise disability rights".

One of the questions raised by the consultation is whether extending legal protection to more people would in practice weaken it for those already covered. "This might happen if cases brought on trivial grounds resulted in restrictive interpretations of the law, which are then applied across the board … Similarly, widening the scope of those who can ask for reasonable adjustments might lead to an increased focus on providing evidence that an impairment necessitated the provision of an adjustment."

In relation to reasonable adjustments, the DRC accepts that there may be concerns that extending the right to request these to a broader group may diminish their availability for those who most need them. It may be, it says, that "an additional mechanism is needed within the reasonable adjustment duty to require prioritisation to ensure that those who would most be disadvantaged by the absence of an adjustment are provided with one."

* Definition of disability: consultation document. Available from www.drc.org.uk/disabilitydebate.