Statutory guidance on the meaning of disability

The Office for Disability Issues published revised statutory guidance in May 2011: Guidance on matters to be taken into account in determining questions relating to the definition of disability (see: http://odi.dwp.gov.uk). The guidance is an important resource for reps where there is any doubt as to whether the member was disabled. The Appendix to the guidance contains a useful list of examples of what might be normal day-to-day activities. Where an employer challenges the existence of a disability, this can be one of the most difficult aspects of an individual’s claim. For a recent example, see Sussex Partnership NHS Foundation Trust v Norris (UKEAT/0031/12/SM).

The statutory guidance provides many examples of impairments that can lead to disability, including:

• Sensory impairments, for example reduced sight or hearing;

• Fluctuating or recurring conditions such as rheumatoid arthritis, myalgic encephalitis (ME), chronic fatigue syndrome (CFS), fibromyalgia, depression and epilepsy;

• Progressive conditions, such as motor neurone disease;

• Organ specific conditions, such as asthma or cardiovascular diseases;

• Developmental conditions such as autistic spectrum disorders, dyslexia and dyspraxia;

• Learning difficulties;

• Mental health conditions and mental illnesses, such as depression, schizophrenia, eating disorders, bipolar affective disorders, obsessive compulsive disorders, personality disorders and some self-harming disorders;

• Conditions produced by a brain or body injury.

The cause of an impairment is irrelevant. Some conditions, such as alcohol dependency and arson, are excluded from the definition of disability, but someone can still be disabled even if the condition is caused by an excluded condition. For example, liver disease or depression can be a disability even if they result from alcohol dependency, which is outside the scope of the EA 10 (Hutchinson 3G v Mason [2013] UKEAT/0369/03).

A person can be disabled even if there is no firm diagnosis as to the cause of the condition. For example, someone with chronic back pain can be disabled even though doctors are unable to pinpoint its cause.

In Walker v Sita Information Networking Computing Limited ([2013] UKEAT/0097/12), the EAT considered obesity. The claimant weighed 21 stone and had many different mental and physical health problems, exacerbated by his weight. The EAT said that while obesity is not necessarily a disability in its own right, its presence can make an impairment more likely to amount to a disability.

Someone can be disabled if they have a life-long condition leaving them susceptible to infection. However, it is not enough just to demonstrate a general susceptibility to infection. The claimant’s medical evidence would need to show clearly that the infections are likely to have a substantial adverse effect on ability to carry out day-to-day activities (see Sussex Partnership NHS Foundation Trust v Norris UKEAT/0031/12/SM).