When is a person disabled?

A person has a disability if he has a physical or mental impairment, which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

What about people who have recovered from a disability?

People who have had a disability within the definition are protected from discrimination even if they have since recovered.

What does 'impairment' cover?

It covers physical or mental impairments; this includes sensory impairments, such as those affecting sight or hearing.

Are all mental impairments covered?

The term 'mental impairment' is intended to cover a wide range of impairments relating to mental functioning, including what are often known as learning disabilities.

What is a 'substantial' adverse effect?

A substantial adverse effect is something which is more than a minor or trivial effect. The requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people.

What is a 'long-term' effect?

A long-term effect of an impairment is one:

• which has lasted at least 12 months, or
• where the total period for which it lasts is likely to be at least 12 months, or
• which is likely to last for the rest of the life of the person affected.

What if the effects come and go over a period of time?

If an impairment has had a substantial adverse effect on normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur; that is if it is more probable than not that the effect will recur.

What are 'normal day-to-day activities'?

They are activities which are carried out by most people 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. The capacities list in the Disability Discrimination Act 1995 has not been included in the Equality Act 2010 to allow greater flexibility in the scope of the definition. (The original list was limited to mobility, manual dexterity, physical co-ordination, continence, ability to lift, carry or otherwise move everyday objects, speech, hearing or eyesight, memory or ability to concentrate, learn or understand, or perception of the risk of physical danger).

What about treatment?

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 (i.e. the impairment has been cured).

Does this include people who wear spectacles?

No. The sole exception to the rule about ignoring the effects of treatment is the wearing of spectacles or contact lenses. In this case, the effect while the person is wearing spectacles or contact lenses should be considered.

Are people who have disfigurements covered?

People with severe disfigurements are covered by the Act. They do not need to demonstrate that the impairment has a substantial adverse effect on their ability to carry out normal day-to-day activities.

Are there any other people who are automatically treated as disabled under the Act?

Anyone who has a diagnosis of HIV, cancer or multiple sclerosis is automatically treated as disabled under the Act. In addition, people who are registered as blind or partially sighted, or who are certified as being blind or partially sighted by a consultant ophthalmologist, are automatically treated under the Act as being disabled. People who are not registered or certified as blind or partially sighted will be covered by the Act if they can establish that they meet the Act's definition of disability.

What about people who know their condition is going to get worse over time?

Progressive conditions are conditions which are likely to change and develop over time. Where a person has a progressive condition they will be covered by the Act from the moment the condition leads to an impairment which has some effect on ability to carry out normal day-to-day activities, even though not a substantial effect, if that impairment is likely eventually to have a substantial adverse effect on such ability.

Are people with genetic conditions covered?

If a genetic condition has no effect on the ability to carry out normal day-to-day activities, the person is not covered. Diagnosis does not in itself bring someone within the definition. If the condition is progressive, then the rule about progressive conditions applies.

Are any conditions specifically excluded?

Yes. Certain conditions are to be regarded as not amounting to impairments protected by law. These are:

• addiction to or dependency on alcohol, nicotine, or any other substance (other than as a result of the substance being medically prescribed)
• seasonal allergic rhinitis (e.g. hay fever), except where it aggravates the effect of another condition
• tendency to set fires
• tendency to steal
• tendency to physical or sexual abuse of other persons
• exhibitionism
• voyeurism

Also, disfigurements which consist of a tattoo (which has not been removed), non-medical body piercing, or something attached through such piercing, are to be treated as not having a substantial adverse effect on the person's ability to carry out normal day-to-day activities.

Who is a service provider?

A 'service provider' is any provider of goods, facilities or services to the public.

It includes retail, health and education environments, essential public service buildings such as police stations, prisons, hospitals and libraries. It also applies to leisure and recreational facilities, such as swimming pools, sports centres, museums, theatres and cinemas.

Very few organisations are not providing a public service. Even in commercial buildings, it is likely that some parts will be considered to be open to the public eg. Reception and meeting rooms.

Why do I need an access audit?

Access Auditing is a structured approach to assessing existing facilities and reviewing the changes required in order to meet legal duties and provide facilities which are pleasant and accessible for everyone.

The audit should follow a logical sequence around the building and cover the widest potential user needs, including a full spectrum of disabilities.

Any action points identified within the report should be listed according to priority, scale and cost so that they may be dealt with in a realistic and practical manner and dove-tailed into any existing maintenance planning to minimise cost and disruption.

The report will identify key barriers and make prioritised recommendations for action; it may be used as a planning tool and an instrument for sourcing future grant funding or budgetary allowances.

Most importantly, the report should educate the reader on the principles of good access so that every refurbishment and redecoration opportunity is used to improve access at little or no extra cost.

What should an audit cover?

The audit route should retrace the customer journey or visitor experience.

Like building surveys, different levels of detail are applicable to varying situations and building use. Most professional access consultants will be able to offer you a variety of audit styles and can tailor these to meet bespoke requirements. Sometimes the audit will include fire egress and general health and safety observations.

Who should do the audit?

Access Audits should be conducted or supervised by someone with comprehensive knowledge in this specialist field and proven competency in pan-disability auditing. Ideally, the auditor should be a professional accredited as an Access Consultant by The National Register of Access Consultants (NRAC) or as an Inclusive Environments Consultant (IEC) by the Royal Institution of Chartered Surveyors. (A pan-disability approach will embrace physical, sensory, cognitive and learning impairments)

What is an access statement?

An Access statement can be used to set out the rationale behind access decisions taken and demonstrate that the best solutions have been sought, whilst working around any constraints or conflicting user needs. For new build, extensions or material change of use, any deviation from the guidance set out in the Approved Document to Part M of the Building Regulations may require an Access Statement alongside the submission.

Planning applications also now need a Design and Access Statement as a requirement under the Planning & Compulsory Purchase Act 2004.

The same document can also be used to pull together the many strands of information which contribute to inclusive service provision (sometimes referred to as the audit trail). It can set out the organisation's culture and intentions towards access provision, list action already undertaken, such as audits and awareness training, and future plans for improvements.

Many alterations or improvements can be gradually addressed as areas are refurbished or decorated, thus planned implementation of change can often be achieved at minimal expense - the access statement is a live document which can be used to ensure that design decisions (such as selection of colour palettes and corporate signage and style guides) take into account diversity in needs.

The ownership of the Access Statement is likely to change throughout the life of the building or space, resting with the people responsible for new buildings, alterations and management of existing facilities.

Any other questions

If you have a question about access which is not answered above, please send your query to Jean Hewitt Consulting at info@jhc.gb.com.