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There is debate about what is meant by the terms 'disabled' and 'disability', and
how to use them, in different contexts.
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.
What does disability mean to you?
What is your understanding of what constitutes a disability?
How would you identify and define characteristics in such a way that they could
be applied to differentiate between 'disabled' and 'non-disabled' individuals?
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.
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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.
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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.
Is
the child disabled? (1)
Think of a child you know well, in or out of school, and consider whether or not
they would fall within the legislative definition of 'disabled'.
1. Does the child have difficulty with 'normal day-to-day activities'? You might
want to consider issues relating (but not limited) to:
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.
Is
the child disabled? (2)
Ability to lift, carry or otherwise 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.
Is
the child disabled? .... continued
2. Are any difficulties that the child has caused by an underlying impairment or
condition?
3. Has any impairment or condition that the child has lasted, or is it likely to
last, more than 12 months?
4. Is the effect of any impairment or condition that the child has 'more than minor
or trivial'?
If you have answered yes to questions 1 to 4, then the child is probably disabled.
If the child receives medical or other treatment to reduce or remove the effects of
his or her condition, he or she is likely to still be regarded as disabled. The test
is whether the effects would recur if the treatment
was stopped.
Definition
of 'in need'
Children with disabilities are children 'in need' as defined by section 17(10(c))
of the Children
Act 1989 and are, therefore, entitled to a range of support services, dependent
upon their
particular circumstances.
However, the definition of disability given in Part III of this Act is more medically
oriented than that within 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."
The definition within the Children Act 1989 reflects the definition applicable to adults
within section 29 of the National Assistance Act 1948, and is the definition that
also applies for children under the:
In order to identify the extent and level of services needed to comply with their
general duty towards children with disabilities, local authorities have to keep a
register of disabled children. The register helps local authorities and other agencies
to plan services for disabled children.
Whoever (health professional, education professional or social worker) is the first
to identify that a child has a disability is required to discuss all available services
with the parents. This should include discussion of the registration process.
Register
of children with disabilities (2)
Parents of disabled children are not required to register their children, and children
don't have to be on the register to have access to services.
Because of this, local authorities cannot be sure of the number of disabled children
who may require services. Without accurate records local authorities may find it difficult
to target resources.
Register of children with disabilities
Is your school/setting aware of which disabled pupils are and are not on
the local
authority register?
If so, are any pupils considered disabled
but not registered?
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