on his or her ability to carry out normal day-to-day activities. That effect must be:
■ substantial (that is, more than minor or trivial);
and
■ adverse; and
■ long term (that is, it has lasted or is likely to
last for at least a year or for the rest of the life of the person affected).
3.3 Physical or mental impairment includes sensory impairment. Hidden impairments are also covered (for example, mental illness or mental health
conditions, learning disabilities, dyslexia, diabetes and epilepsy).
3.4 In addition to the basic definition of a ‘disabled person’ there are some special provisions and exceptions. This means that in the case of people with severe disfigurements the disfigurement is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities. Some progressive conditions are automatically deemed to be
disabilities for the purposes of the Act, others will be subject to the special rules on progressive conditions. Further details are provided in Appendix B.
3.5 In considering its duties under the Act, an
education provider should not use any definition of ‘disabled person’ which is narrower than that in the Act. An education provider who is requested to make a disability-related adjustment may ask the person requesting it for evidence that the impairment is one which meets the definition of disability in the Act. It may be appropriate to do so where the disability is not obvious or where the adjustment is not something that could have been
anticipated. However, education providers should not ask for more information about the
impairment than is necessary for this purpose. Nor should they ask for evidence of disability where it ought to be obvious that the Act will apply.
A woman who requires dialysis as a result of her health condition asks to miss lectures to attend regular hospital appointments. The education provider could legitimately ask to see a letter from the doctor or an appointment card.
However, the education provider then asks her questions about why she needs dialysis and the cause of her health condition. These are
unnecessary questions and are likely to amount to discrimination.
3.6 In order to avoid discrimination, it would be
prudent for education providers not to attempt to make a fine judgement as to whether a particular individual falls within the statutory definition of disability, but to focus instead on meeting the needs of each student and applicant.
People who have had a disability in the past
3.7 People who have had a disability within the
meaning of the Act in the past are protected from discrimination even if they no longer have the disability.
An applicant discloses on her application form that from 1992 to 1994 she had long-term depression after her father died. Refusing to interview or offer her a place on a course
the disability preceded the Disability Discrimination Act 1995 is irrelevant.
Overlap with other definitions
3.8 The definition of disability used in the Act is not the same as other definitions in other legislation. In particular, the definition is not the same as the definition of ‘difficulty in learning’ used in the Further and Higher Education (Scotland) Act 2005 or the definition of ‘learning difficulty’ used in the Learning and Skills Act 2000. The Disability
Discrimination Act definition is based on ability to carry out normal day-to-day activities, whereas the Learning and Skills and Further and Higher Education (Scotland) Acts definitions relate specifically to learning. Some people may be covered by both, and others may be covered by only one of these definitions. Education providers should be aware that they may need to make different provision for people covered by the different pieces of legislation.
More information about the meaning of disability
3.9 For a fuller understanding of the concept of
disability under the Act, reference should be made to Appendix B. A government publication,
Guidance on matters to be taken into account in determining questions relating to the definition of disability, provides additional help in
understanding the concept of disability and in identifying who is a disabled person. Where
relevant, the guidance must be taken into account in any legal proceedings.
People who have been victimised
3.10 The Act also gives rights to people who have been victimised, whether or not they have a disability or have had one in the past. (See paragraphs 7.2 to 7.8.)
Students
3.11 The Act applies to any disabled people (including those overseas) who are enquiring about, or applying for, admission to a course in Great
Britain, and any disabled students (including those overseas) attending, undertaking or enrolled on a course in Great Britain.
A disabled student from Germany applies to a university in Britain to undertake a year’s study as part of his course. The British university has a duty not to discriminate against him when he is enquiring about the period of study, when he is applying to the university, or whilst he is
attending the university.
3.12 A student does not have to be undertaking a complete course to have rights under the Act. Someone who is enquiring about, applying to, attending or undertaking a course of study at an educational institution (however long or short the study period) is covered. This includes people doing single modules, evening courses or distance learning. Similarly, anyone enquiring about, applying to or enrolled on a course or
using recreational or training facilities provided by a local education authority (England and Wales) or education authority (Scotland) is protected by the Act.
s 55
s 31A(3)
A disabled school pupil applies to do a taster course at her local further education college as part of a programme to encourage young people to stay in learning after 16. The further education college has a duty not to discriminate against her when she is enquiring about or applying for the taster day, or during the day she attends the college.
A disabled adult learner decides to undertake a distance learning course in computer studies provided by a higher education institution. The higher education institution has a duty not to discriminate against the learner when he
enquires about or applies for the course, or when he is enrolled on the course.
Ex-students
3.13 The Act also applies to any disabled person who has been a student. This is explained in greater detail in paragraphs 9.49 to 9.52.