Definition of disability
Under the Equality Act and DDA there are specific ways of defining disability which in most cases relate to duration and impact of impairment or symptoms rather than any specific diagnoses. The reason this matters is that enforcing disability rights in the UK is largely only available to people who are or have been legally-disabled.
The legal definition of disability focuses on the untreated or undiagnosed state of the condition or impairment. Many people who don’t consider themselves disabled could be legally-disabled for Equality Act and DDA purposes in some situations. Some people who identify as disabled may find themselves not accepted as legally disabled in some situations.
There are a handful of conditions: HIV, Cancers, Multiple Sclerosis (MS) and registered Partial or full Sight Impairments that are automatically considered legal disabilities from the point of diagnosis in the UK. This is because historically some organisations representing these impairment-groups lobbied for their inclusion.
Detailed guidance about proving disability
For more details of the technicalities see the following links:
- Equality Act – Brief definition of disability
- Equality Act – Detailed guidance on defining disability [PDF]
- DDA Brief definition of disability
- DDA Detailed definition of disability guidance by ECNI [PDF]
We don’t generally believe anyone should have to prove their disability prior to starting litigation for discrimination.
We do not believe Service Providers should generally require proof of disability before making services accessible or providing adjustments. The Codes of Practice on Services make no mention of proving your disability except at the level of legal claims.
Further and Higher Education
Further and Higher Education providers (usually colleges and universities) seem to be generally allowed to require Equality Act compliant evidence of impairments or conditions, or diagnostic reports containing specific tests for conditions like dyslexia, before they will formally provide reasonable adjustments. We’re not entirely sure how this is justified and are researching it.
While education providers have an anticipatory adjustments duty like other service providers, institutions will often claim they did not know, and could not have reasonably have known a student was disabled. They can also sadly be nasty about disability status during complaints and legal claims even when they have been treating a student as disabled.
Employers may also be allowed to request proof of conditions or impairments before providing disability support and adjustments in the workplace – again we are unsure how much this is allowed. It is generally a good idea to cooperate with getting proof and making sure you can prove you disclosed a likely disability.
While trying to complain
We also don’t think that it is reasonable to have to prove your disability status to service providers during pre-legal complaints stages. However, some disabled people do choose to provide some simple proof to stop the Respondent taking up a lot of time denying disability status.
Another option is to say something like: “I can prove my disability status should this complaint reach appropriate legal stages, but I hope things will not come to that”.
Sometimes Respondents keep demanding proof or more proof of disability throughout a complaint. Our usual advice is to tell them you will provide this at the appropriate legal stage and otherwise ignore these demands.
If you go to court, you are likely to be asked to provide proof of your disability at some point, especially if the Respondent is aggressively demanding it. Some people choose to provide proof early in the legal process to get the issue out of the way, others wait till it is officially requested.
Ultimately it is the court that determines if you are legally disabled and even in the Small Claims process for a simple access issue, an amazing amount of time can be wasted in legal processes around legal-proof.
Obtaining legally suitable proof
We recommend if you ask for proof of disability that you provide the author of the evidence with information about what the Equality Act or DDA require the evidence to cover as well as the specific information about your impairments that you want them to cover. You can print out one of the links at the top of this page.
GP (General Practitioner)
The easiest way can be to ask your GP to write a specific letter for proving your legal disability status which only contains the appropriate impairment and legal wording. You will probably have to pay for this letter, but if you settle or win a case, you may be able to reclaim this cost back (so get and keep the receipt). You may also be able to reuse the same evidence for more than one complaint/case.
The GP’s letter will need to specify:
The letter does not need to contain specific diagnosis information if this is unavailable, or something you wish to keep private.
If possible it is also helpful to get the GP to include wording like
I confirm that PERSON is disabled for the purposes of the Equality Act 2010 (or DDA). their disability has lasted (or expected to last) more than 12 months and has a substantial negative impact on their ability to carry out normal day to day activities.
Existing medical letters are often poor for Equality Act purposes because they tend to be written for other clinicians or other systems which don’t rely on Equality Act compliant proof.
Other clinicians such as those in hospitals may agree to write an Equality Act or DDA letter, but again, may need to be paid for their time to do so. This may be an option if a GP is not helpful or knowledgeable about your impairments.
Sometimes people have paid privately for a consultation or a letter when it needs to be specific or used in a hurry, but we wouldn’t expect this to be the norm for the Small Claims Court. If your case is in the fast or multi-track then obtaining and funding specific expert evidence may be discussed as part of the legal process.
Denial of disability proof
Respondents denying disability status
Organisations and their lawyers know that the easiest way to wreck many disability discrimination cases is to argue that the Claimant is not disabled, as this causes “legal tests to be failed” which means the case cannot proceed. Therefore there is a strong incentive for Respondents to keep claiming evidence provided is unsuitable and ask for more and more proof.
Refusal to accept legal disability status can extend to ignoring visible impairment effects and expensive aids like wheelchairs or hearing aids. Or evidence such as copies of blue badges, PIP awards or social services care plans.
Organisations also know that disability information is often very personal and sensitive, and not something a disabled person often wants shared – especially not with someone who has already hurt them by discriminating against them. Judges can be very poor at recognising when Respondents are abusing the disability-proof process because they are stuck in the “Claimant has to prove disability status” mindset.
A 2016 House of Lords inquiry into the Equality Act covered disability proof in Paragraphs 440-442 of thir report it still leaves the disabled claimant having to ask a court to challenge this abusive defence practice. Which in practice and our experience does not work.
Privacy of medical evidence in court
Evidence about your disability may be discussed in open court. One of our members has had some success in obtaining a reporting restriction about their disability information but was unable to get a private hearing about these issues despite receiving threats and detriment to employment. We hope to be able to update this page soon with details of the successful legal arguments used for a reporting restrictions for other people to try and use.