Disability + non-disability = what?
17 Aug 2009
By James Medhurst
An intriguing but under-analysed problem is how to deal with a situation in which some symptoms of a medical condition would be able to qualify as a disability but others, in themselves, would not, such as a psychological condition resulting in impaired understanding but also a tendency to steal. If the tendency to steal were the only symptom, it would be an excluded condition that is deemed not to qualify as a disability and, as the education case of X Endowed Primary School v SENDIST confirms, the excluded condition can be severed from the other symptoms. The High Court states that the word “condition” can refer to either the condition as a whole or merely to some of the manifestations that result from it, echoing the similar reasoning concerning the word “impairment” in the case of McNicol v Balfour Beatty, rather than the words having distinct meanings as a literal reading of the statute would seem to imply.
But X Endowed School does not deal with the situation in which the non-disability is not an excluded condition. For example, there are some people with cerebral palsy who have substantially impaired speech, and mobility which is impaired but not to a substantial extent. However, the wide test in McNicol would appear to suggest that the cerebral palsy can itself be considered to be the impairment, with the effect that reasonable adjustments must be made for a mobility problem which would not amount to a disability on its own. This seems strange. Clearly the McNicol decision was intended to prevent tribunals from being confused by unnecessarily elaborate arguments on such a point, but there are side effects.
This is not just an academic criticism. The McNicol formulation can result in extremely difficult cases of the most bad-law-generating kind. The obvious and unavoidable example is Malcolm in which a decision to sublet a property was supposedly caused by schizophrenia. Far from producing insuperable problems of causation, an analysis based on separating disabilities from non-disabilities would have made it much easier to resolve. If the House of Lords had disapproved McNicol rather than Clark v Novacold then Mr. Malcolm would have failed on the straightforward ground that resisting the temptation to sublet is not an everyday activity. In my opinion, this would have had a much less damaging effect upon the law.
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