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Disabled people: defining disability

This content applies to England

The legal definition of disability.

Legal definition

Under the Equality Act 2010 a person is disabled if s/he has a physical or mental impairment which has a substantial and long-term adverse effect on her/his ability to carry out normal day-to-day activities. People who have had a disability in the past can also fulfil the definition.[1]

See the Equality law section for more information about the Equality Act 2010.

Normal day-to-day activities

This term is not defined by the Equality Act 2010 and the statutory 'list of capabilities' issued under previous disability legislation has been repealed to make it easier for individuals to meet the definition. Professional and specialised skills may be considered normal day-to-day activities.[2]

Impairment

Any medically recognised condition could amount to a physical or mental impairment. Mental illness does not need to be clinically recognised.[3]

Some conditions such as cancer, HIV infection and multiple sclerosis automatically amount to a disability.[4] Certain categories of blind person are deemed to be disabled.[5] A severe disfigurement (apart from tattoos and non-medical piercings) is to be treated as impairment with substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities.[6]

Regulations may specify conditions which will not amount to impairment (and so to a disability).[7] Current regulations exclude addiction to alcohol, nicotine or any other substance unless addiction was originally the result of administration of medically prescribed drugs or other medical treatment.[8] Tendencies to set fires, steal, physically or sexually abuse other persons, or engage in exhibitionism or voyeurism, are also excluded.

Long-term

Under the Equality Act 2010, an impairment has a long term effect if it:[9]

  • has lasted for at least 12 months
  • is likely to last for at least 12 months, or
  • is likely to last for the rest of the life of the person affected. As such, a terminal illness will meet this criteria regardless of its duration.

Substantial

Substantial effect is now defined as one that is greater than the effect which would be produced by the sort of physical or mental conditions experienced by many people who have only minor or trivial effects.[10] Determining whether an impairment has a substantial adverse effect requires a comparison between how a person would carry out an activity with and without it.[11]

Children under the age of six with an impairment that does not have a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities are to be treated as disabled if the impairment would normally have a substantial and long-term adverse effect on the ability of a person aged six years or over to carry out normal day-to-day activities.[12]

The positive effects of any medical treatment and/or the use of prosthesis or other aid are to be disregarded when determining whether impairment has a long term adverse effect.[13]

Intermittent/recurring conditions

If an impairment ceases to have a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if the substantial and long-term adverse effect is likely to recur.[14] A substantial effect is likely to recur if it 'could well happen'.[15]

The correct test applicable to questions of whether a substantial adverse effect of a condition is recurring has been formulated by the courts.[16]

Progressive conditions

If a person's ability to carry out day-to-day activities is affected by a progressive condition, that condition is to be treated as an impairment having a substantial and long-term adverse effect on that person's ability to carry out day-to-day activities if the condition is likely to result in the person developing such impairment.

Regulations may provide for a condition of a prescribed description to be treated as being, or as not being, progressive.[17]

Statutory guidance on the meaning of disability

Guidance on the definition of disability under the Equality Act 2010[18] is in force since 1 May 2011, subject to transitional arrangements covering cases arising out of acts of discrimination occurring before 1 May 2011.[19]

The statutory Code of Practice on Services, Public Functions and Association, with effect from 6 April 2011, replaces the old Codes subject to transitional arrangements and can be used in evidence in legal proceedings brought under the Equality Act 2010.[20] It covers discrimination in services and public functions under Part 3 of the Act, and discrimination by associations under Part 7. It applies to private and public providers of services, those exercising public functions and membership associations.

Both Code and Guidance must be taken into account by courts and tribunals when they appears to be relevant to any questions arising in proceedings brought under the Act.

Registering as disabled

Some disabled people may be registered as disabled with their local social services department. This can give them access to services such as reduced fees for facilities and blue badges for parking. If a person is not registered and wishes to be, s/he should contact her/his local social services office.

However, it is not necessary for a person to be registered as disabled in order to access the majority of the housing and support options mentioned in this section.

Wales

The information on this page applies only to England. Go to Shelter Cymru for information relating to Wales.

[1] s.6 and Sch.1 Equality Act 2010.

[2] Chacon Navas (Social policy) [2006] EUECJ C-13/05; Paterson v Commissioner of Police of The Metropolis [2007] UKEAT 0635/06/2307.

[3] Hospice of St Mary of Furness v Howard [2007] UKEAT 0646/06/1805.

[4] para 6 Sch.1 Equality Act 2010. 

[5] reg 7 Equality Act 2010 (Disability) Regulations 2010 SI 2010/2128.

[6] para 3 Sch.1 Equality Act 2010.

[7] para 1 Sch.1 Equality Act 2010.

[8] reg 4 Equality Act 2010 (Disability) Regulations 2010 SI 2010/2128.

[9] para 2(1), Sch.1, Equality Act 2010.

[10] s.212(1), Equality Act 2010.

[11] Paterson v Commissioner of Police of The Metropolis [2007] UKEAT 0635/06/2307.

[12] para 2(1), Sch.1, Equality Act 2010.

[13] para 5 Sch.1 Equality Act 2010.

[14] para 2(2) Sch.1 Equality Act 2010.

[15] SCA Packaging Ltd v Boyle and Equality and Human Rights Commission (Intervener) [2009] UKHL 37.

[16] Swift v Chief Constable of Wiltshire Constabulary [2004] UKEAT 0484/03/1802.

[17] para 8 Sch.1 Equality Act 2010.

[18] Equality Act 2010 - Guidance on matters to be taken into account in determining questions relating to the definition of disability, ODI, 2011. 

[19] ss.2 and 3 Equality Act 2010 (Guidance on the Definition of Disability) Appointed Day Order 2011 SI 2011/1159. 

[20] s.2 Equality Act 2010 Codes of Practice (Services, Public Functions and Associations, Employment, and Equal Pay) Order 2011 SI 2011/857; s.2 Former Equality Commissions' Codes of Practice (Employment, Equal Pay, and Rights of Access for Disabled Persons) (Revocation) Order 2011 SI 2011/776.

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