Proving you are disabled(neurodiversity)
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While it should not be a problem there are situations where organisations or individuals do not understand and/or try to deny that they know the neuro diverse are disabled.
If you need evidence for diagnosis look here
The purpose of this document to show how you can prove to a court, employer, school local authority or other body that you meet the definition of disability used in the Equality Act 2010(The Act).[1]
The Equality Act 2010 definition of disability
The Act (s6(1)) says that a person has a disability if they have a physical or mental impairment which has a long term and substantial adverse effect on their ability to carry out normal day-to-day activities. Physical or mental impairment includes sensory impairments such as those affecting sight or hearing.
• Long term means that it has lasted or is likely to last for at least 12 months or for the rest of the disabled person’s life. (Sch1, para 2(1) )
• Substantial means more than minor or trivial. S212(1)
• Where a person is taking measures to treat or correct an impairment (other than by using spectacles or contact lenses) and, but for those measures, the impairment would be likely to have a substantial adverse effect on the ability to carry out normal day-to-day activities, it is still to be treated as though it does have such an effect. (Sch1, para 5)
The terms used in the act are important as neuro diversity may be denied by challenging these factors.
Long term is not usually an issue as all neuro diverse conditions are lifelong and therefore if otherwise proven long-term automatically follows. However, offering evidence of this such as reference to ICD 11[2] is advisable as some still try to deny that neurodiverse conditions are long term
Substantial is often a term that leads to dispute as often organisations/individuals use/substitute a definition that does not meet The Act definition to deny disability.
The UK government's Definition of disability under The Act[3] states ‘substantial’ is more than minor or trivial, e.g it takes much longer than usual to complete a daily task like getting dressed.
This makes it clear you would always concentrate on what you cannot do or do with difficulty not what you can do. If there are any parts of normal life that you cannot do then you will almost certainly meet this definition of disability, if it takes much longer it would usually apply to difficulties in reading and writing. If you take you more than say 25% longer it is a strong argument that you meet this definition.
Normal day-to-day activities are
activities which are carried out by most men or most women on a fairly regular and frequent basis. The term is not intended to include activities which are normal only for a particular person or group of people, such as playing a musical instrument, or a sport to a professional standard, or performing a skilled or specialised task at work. However, someone who is affected in such a specialised way but is also affected in normal day-to-day activities would be covered by this part of the definition.Day-to-day activities include – but are not limited to – activities such as walking, driving, using public transport, cooking, eating, lifting and carrying everyday objects, typing, writing (and taking exams), going to the toilet, talking, listening to conversations or music, reading, taking part in normal social interaction or forming social relationships, nourishing and caring for one’s self. Normal day-to-day activities also encompass the activities which are relevant to working life.
(Statutory Code of Practice EHRC appendix 1 section 14,15)
To be clear activities that are relevant to working life at all levels include assessments and training activities.are included in the definition.
Taking measures to treat or correct an impairment
This is important as if this is not taken into account correctly the definition of substantial will be undermined.
Someone with an impairment may be receiving medical or other treatment which alleviates or removes the effects (though not the impairment). In such cases, the treatment is ignored and the impairment is taken to have the effect it would have had without such treatment. This does not apply if substantial adverse effects are not likely to recur even if the treatment stops (that is, the impairment has been cured).
(Statutory Code of Practice EHRC appendix 1 section 16 )
Treatment includes both drugs and other therapies including employment or other support
Measures here include clearly adjustments such as specialist IT etc. However, it is often missed/ignored that any corrective measures the individual uses (greater than a non disabled person needs)even if unseen also apply if they have any negative effects. Thus
- masking in any form that involves cognitive load (amount of mental work or processing)
- taking mental action to fit in at school/work
- going somewhere or doing something you find uncomfortable to “fit in”
- avoiding sensory stressful environments
* not going to party’s or noisy events
- using specific more expensive materials
- taking longer
- avoiding distractions
- needing quiet space that involves moving somewhere that others would not have to do
- extra functions such as proofreading
and many other compensatory activities should all be considered.
Before assessing for disability under the Equality Act these actions must be removed/eliminated as the assessment is made without compensatory behaviour unless that can be guaranteed to be successful at all times(and not cause other negative effects). Since most compensatory behaviors can fail under stress or in difficult or unusual circumstances they are therefore not usually to be counted in the assessment of for disability.
Presenting evidence of disability
If you are trying to prove disability, particularly to a court of law, it is important that you present the facts in a way that people with no pre-existing knowledge of neuro-diversity will understand the evidence you are presenting as it may well be that those trying to deny your disability will present a situation that distorts/confuses the issues that are relevant to proving disability.
What you are trying to demonstrate is that your neuro-diverse condition has an effect on normal day-to-day life that is more than minor or trivial in conditions that exclude any measures being taken to correct the situation.
To be most effective the evidence needs to be produced in a way that directly connects it with what the act requires. I show below the types of evidence you can produce in what I believe the order of most significant in legal terms.
Evidence from a professional report
This is evidence from an independent expert(s) in the area of the neuro-diversity and is often also a diagnostic report.
Occupational health reports can be particularly useful they confirm the diagnosis indicate that it is a disability or that the person probably be considered disabled and includes evidence of recommendations (adjustments) recommended to an employer
These reports can often be found in your GPs medical records normal practice for all NHS organisations and most private clinical professionals to send copies of all reports or letters issued to the GP. GPs records are, unless lost which is now unusual, lifelong.
To ensure that the importance of this evidence is understood the following details should be included in information covering the report when being sent/supplied (wherever possible)
1. Medically qualified(doctor)
Name
Qualification
Specialty
General Medical Council registration number
2. HCPC registered Clinical or Educational Psychologist (doctorate level)
Name
Qualification
Specialty
Health Care Professionals Council Registration number
3. HCPC registered Clinical professional (SALT, OT, Physiotherapist or other Psychology practitioner)
Name
Qualification
Specialty
Health Care Professionals Council Registration number
4. Assessor with an Assessment Practising Certificate (APC)
Name
Qualification
Details of SpLD Assessment Standards Committee (website as you can assume recipient will know of it)
APC Code
How to use report to evidence disability
1. The diagnosis or label given in International Classification of Diseases( ICD11) is accepted by the UK government and NHS.ICD11 is the international accepted classification of disorders accepted by the United nations. In most of the neuro diverse conditions it clearly indicates that the diagnosis alone meets the criteria for disability as it uses the term significant effects in areas that would be considered normal life are required to make the diagnosis.
This is true of 6A02 Autism spectrum disorder. 6A05 Attention deficit hyperactivity disorder and 6A04 Developmental motor coordination disorder also known in UK as Dyspraxia.
Dyslexia it is less clear as in ICD 11 “Dyslexia” is used for the acquired form of the disorder and 6A03 Developmental learning disorder for the inherited form. And this many need to be pointed out as it causes some confusion in some psychological reports where the terms are often used synonymously.
In reports that include a diagnosis you may need to emphasise the importance of this pointing out in covering documentation that to make the diagnosis the professional confirms details that would indicate the diagnosis also meets the Act definition of disability and therefore if the recipient does not accept the disability then they are challenging the professional’s judgment and that the challenge should be made directly to the professional not to the “disabled “ person as they do not have the expertise to confirm or deny professional judgement to the court or other people. In the case of a court situation the respondent/defendant should be asked if they are challenging the professional judgement in which case the professional should be called as a witness and any professional evidence from the respondent would also need to be seen and defended in the court.
2. In the case of professional report you may choose to include test results like WAIS WAIT, Ados etc .These test results carried out in as near as possible ideal conditions for assessing the situation (i.e as much as possible excluding the effects of adjustments workarounds et cetera) can only reasonably be challenged/defended by an appropriate professional with expertise in the specific tests involved. However they are easily misinterpreted by those lacking in appropriate training (teachers, employer, lawyers etc), so providing them needs careful consideration..
Even where the professional has not produced a specific diagnosis there can be very strong evidence of disability in the test results. However if interpretations of disability are challenged the professional needs to be called to give evidence or a report produced to interpret the meaning of the tests. The lack of a specific diagnosis, for example, may not mean there is not evidence confirming disability.
3. If the report includes recommended adjustments it should be pointed out that it would be unusual for a professional to recommend adjustments to an Employer, School, University or the individual where there are only has minor or trivial effect and no underlying disability. Therefore if the professional is making such recommendations is indicating very clearly that the overall effects are more than minor or trivial and therefore are significant. (indicating disability)
4. the report may often include examples that can be used to point out disability if it appears to be being questioned.
5.In addition, The Employment Appeal Tribunal in MS K KALER v INSIGHTS ESC LTD his Honour Judge Barklem made it clear in Para 25
I note that the diagnosis was not made for the purposes of the ET. That being so, a general comment made in the assessment that autism is a disability for the purposes of the Equality Act 2010 would not have bound the ET, which is entitled to reach its own conclusion. However, I conclude that a formal diagnosis from a qualified practitioner as to the key issue before the ET,(Asperger’s being, as I understand it from the papers before me, a form of autism) would probably have had an important influence on the hearing.
That he would expect that it would have an important influence on the outcome means that unless the employer has professional evidence to challenge the opinion the tribunal decision on the balance of probabilities is wholly predictable.
Evidence from third party
Evidence from third party or parties is often very useful particularly if the evidence is from an independent source.
If the evidence occurs before any issues having arisen, it is likely to be considered more important to the courts etc.
Payments from government Benefits or Social services.
Personal Independence Payments(PIP) disability living allowance ESA and attendance allowance are strong evidence of disability and should be included as evidence as should any disability component of universal credit.
Evidence from education
Evidence coming from school, colleges, universities and employers as well as school teachers lecturers and managers etc can be extremely useful in evidencing and can often be obtained using a subject access report to the school college University et cetera. Schools are required to keep records for seven years after you have left school so usually to the age of 25.
What is useful information/evidence you can use from education:
1. Any evidence of adjustments being made is evidence of disability being accepted even if not named.
2. Impact on learning - a teacher/educator raising concerns over a difficulty is clearly showing a more than minor or trivial effect.
3. Evidenced in reports or the marking of work and modules can show clear evidence of the effect of the disability on learning
4. Teachers and educators implementing any adjustments can then that can then indicate creating an improvement is very strong evidence.
5. Exam test results improving with extra time or adjustments is also evidence
Evidence from employers/managers
1. Evidence from supervision or competence related to disability is evidence of impact
2. Changes or changes/adjustments the way you work that improve a situation and can be shown to related to the disability is also evidence of impact.
3. Occupational health records will often include important information/evidence
Evidence from parents, relatives and friends
1. The history of disability related symptoms or signs is particularly useful if it predates any complaints grievances court cases etc as it shows it was recognised before there was a reason for the person to “exaggerate” symptoms.
2. Friends/relatives can give symptoms and signs that indicate that the problem is long-term
3. Parents can sometimes produce evidence of historical issues sometimes in school reports or previous concerns.
Personal evidence
Important both in courts and for diagnostic purposes.
Usually for proving disability to a court If you haven't got a diagnosis that confirms disability
For legal purposes
Solicitors often seem to make this out to be the most important factor in deciding disability whereas independent professional or otherwise is likely to be the most compelling if supporting reported disability.
It is important that if the personal impact statement is not supported by other evidence or that evidence is not convincing that it is presented to a court in a way that they will understand its significance in terms of the Equality Act definition of disability.
The courts have made it clear as described in Mr A Elliott v Dorset County Council: UKEAT/0197/20/LA (V), and in almost all case this should be referenced.
The judgement included “The term “substantial” is defined by Section 212 The Act as “more than minor or trivial”. If this statutory definition is met, on a consideration of the ordinary meaning of the words,that takes precedence over the Guidance and Code, including the reference to the “general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people”. The tribunal has to consider whether the Claimant is affected to a more than minor or trivial extent in carrying out day-to-day activities (which may include work activities) as a result of the impairment in comparison to what the situation would be if the Claimant did not have the impairment.”
Thus the first major point is to make it clear that any comparator is the "claimant" without a disability.
This is important because the respondent may claim or try to claim that you are not disabled because you can do some day-to-day activities to an average standard or even just can do them.
The comparison should be whether you can do them to the standards expected of somebody with your general ability.
Example
Can you read at the same speed and accuracy as someone of the same overall ability and education not can you read
Can you communicate and understand and communicate emotions etc to the level expected by you overall ability not can you communicate.
You should write the whole of your personal impact statement on this basis.
Secondly the respondent will often ignore extra time effort or adjustments used to meet a high standard to suggest there is no disability,
You may even need to try without using your support techniques that are probably automatic like phone reminders and help from other people to enable you to write your statement from the correct position. You need to describe the difficulties you have if the aids or work rounds are not available both physical and mental i.e if you cannot use a work round when stressed then describe the problem when stressed.
You should therefore write your impact statement on the basis of the effects of your disability has when you are using no adjustments, support or work rounds.
Thirdly the Equality Act and the courts are expected to look at what you cannot do (or cannot do without significant (more than minor or trivial) extra effort than those without your disability not what you can do.
This allows you to include evidence of the extra effort you have to make to compensate your disability as having to compensate proves disability.
Any denial on the part of the respondent (school etc) may be challenge if they are basing it on a different standard for the neuro diverse condition than they would for other physical disabilities, This would be discrimination.
Example they would not claim because a person in a wheelchair can get from A to B they do not have a disability.
For diagnostic purposes
The purposes of diagnosis you are evidencing that you have symptoms or signs
see Personal evidence for diagnostic purposes
.
References
[1] Equality Act 2010 https://www.legislation.gov.uk/ukpga/2010/15/contents
[2] International Classification of Diseases 11th Revision The global standard for diagnostic health information
[3] https://www.gov.uk/definition-of-disability-under-equality-act-2010 A to B they do not have a disability
Disclaimer: This page is for general information only and does not constitute legal advice. For individual guidance, contact ACAS or the Equality Advisory and Support Service (EASS). See the full Legal and Support Disclaimer for details.
