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This module is concerned with the definitions of disability contained within UK
legislation.
If children are disabled they have entitlements arising from their assessed needs.
This section identifies 'what counts as disability' within the context of different
acts of parliament.
You will have seen discussions around the use of the terms 'disabled' and 'disability'.
There is ongoing debate about what is meant by these terms and how to use them in
different contexts.
The Equality
Act 2010
Section 6 of this Act states that a person is disabled if they have a disability
which is defined as:
Physical or mental impairment.
Impairment that has a substantial and long term adverse effect on their
ability to carry out normal day-to-day activities.
Where treatment or the provision of aids reduces the disabling effects of a condition
that would otherwise meet the above criteria, then the impairment is
still considered to have a 'substantial adverse effect'.
A child with a progressive degenerative condition meets the criteria if their condition
is likely to result in a 'substantial and long term adverse effect' in the future,
even if it does not currently do so.
In order to interpret this definition, it is necessary to understand the meanings
of the terms used. This Act contains defined meanings for specific terms, but it should
be borne in mind that these terms may have different meanings when used in other legislation.
A snapshot
Equality Act
2010
Further discussion of the application of these definitions is available in the
Equality Act 2010
Guidance.
The implications of the Equality Act 2010 for schools and services are considered
later
in this module.
The impairment has a substantial and long
term adverse effect on their abillity to carry out normal day-to-day activities.
Impairment
Substantial
Long-term
Normal day-to-day activities
Impairment
The Act itself does not define the term impairment and case law has established
that a formal medical diagnosis is not always required, as long as it is proven that
functions are impaired. However, if no organic or mental cause of symptoms can be
found, it may be difficult to secure a tribunal endorsement that a person has an impairment.
The provision for a specifically described condition to be (or not to be) an impairment
may be made by parliament through Regulations.
Return
Substantial
The term substantial means 'more than minor or trivial' (section 212(1)). However,
the cumulative effect of a number of 'minor' impairments may be considered as 'substantial'.
Where the impact of an impairment is reduced or eliminated through measures taken
to correct it (eg medication, a prosthesis or other aid), the effects must be considered
as if these measures were not taken. This does not apply where spectacles or contact
lenses are used to correct sight.
Return
Long
term
Schedule 1 (Part 1, paragraph 2(1)) of the Act states that:
The effect of an impairment is long-term if:
(a) It has lasted for at least 12 months.
(b) It is likely to last for at least 12 months.
(c) It is likely to last for the rest of the life of the person affected.
If the substantial effects of a long-term impairment cease, it is still considered
as continuing if those effects are likely to recur.
Regulations may prescribe circumstances where, despite these circumstances, an
effect should (or should not) be considered long-term.
For example, a severe disfigurement is deemed to have had a substantial adverse
effect on the ability of the person to carry out normal day-to-day activities.
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Normal
day-to-day activities
These are actions that are carried out by most people on a daily basis, and there
is considerable case law to assist with determining which activities are included.
The Equality and Human Rights Commission defines normal day-to-day activities as
involving any of the following:
Mobility.
Doing something with your hands.
Physical coordination.
Continence (controlling your bladder and bowels).
Ability to lift, carry or move everyday objects.
Speech, hearing or eyesight.
Memory or ability to concentrate, learn or understand.
Perception of the risk of physical danger.
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Defining
disability: the Children Act 1989
So far in this section we have considered the applications of the Equality Act 2010, however the Children Act 1989 is also relevant as it contains a definition
of disability that is applicable within other
related legislation.
Children with disabilities are children 'in need' as defined by section 17(10(c))
of the Children
Act 1989 and are entitled to a range of support services depending on their circumstances.
The definition of disability given in Part III of this Act is more medically oriented
than the Equality
Act 2010.
'...a child is disabled if he is blind, deaf or dumb or suffers from mental disorder
of any kind or is substantially and permanently handicapped by illness, injury or
congenital deformity or such other disability as may be prescribed.'
Previous acts
The definition within the Children Act 1989 reflects the definition that is applicable to
adults within section 29 of the National Assistance Act 1948, and is the definition that also
applies to children under the two
following Acts:
A record of the number of
children with SEN is listed
on the Register of Children with Disabilities. Through discussion with the school,
SENCOs find out what records
are kept by each school and what data the school has to provide to local or
national bodies.
Think of a child that you know (in or out of school) and consider whether or not
they fall within the legislative definition of 'disabled'. Use the following questions
to help you.
When
does the law define a child as disabled? (2)
1. Does the child that you are thinking of have difficulty with any of the following
'normal day-to-day activities'?
Click here to read about the typical tasks or activities that a disabled child
might have particular difficulty with.
2. Is the child's difficulty caused by an underlying impairment or condition?
3. Has the child's impairment or condition lasted, or is it likely to last, for
more than 12 months?
4. Is the effect of the child's impairment or condition 'more than minor or trivial'?
If you have answered yes to questions one to four, then the child is probably disabled
under the Equality Act 2010. If the child receives medical or other treatment to reduce
or remove the effects of their condition, they may still be disabled. The test is
whether the effects would recur if they were to stop their treatment." (the user has
just been asked to think about a child, not a specific child called Tom.
Source: The previous paragraph is abridged from: DfES implementing the Disability Discrimination Act 2005 in schools
and early years settings 2006.
Mobility: getting to/from school, moving about the school and/or going on
school visits
Manual dexterity: holding a pen, pencil or book, using tools in design and
technology, playing a musical instrument, throwing and catching a ball
Physical co-ordination: washing or dressing, taking part in games and PE
Ability to lift, carry or move everyday objects: carrying a full school
bag or other fairly heavy items
Continence: going to the toilet or controlling the need to go to the toilet
Speech: communicating with others or understanding what others are saying;
how they express themselves orally or in writing
Hearing: hearing what people say in person or on a video, DVD, radio or
tape recording
Eyesight: ability to see clearly (with spectacles/contact lenses where necessary),
including any visual presentations in the classroom
Memory or ability to concentrate, learn or understand: work in school including
reading, writing, number work or understanding information
Perception of the risk of physical danger: inability to recognise danger
eg when jumping from a height, touching hot objects or crossing roads
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