THE INDUSTRIAL TRIBUNALS 

CASE REF: 250/04

CLAIMANT:	David Alexander Kerr

RESPONDENTS:	(1)  Northern Ireland Civil Service
	(2)  Department for Social Development

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

The claimant’s asthma was a disability within the meaning of Section 1 of the Disability Discrimination Act 1995.

Constitution of Tribunal:

Chairman:		Mr Travers (Sitting Alone)

Appearances:

The claimant was represented by Mr Teddy Martin, Employment Relations Consultant.

The respondents were represented by Mr Peter Coll, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.

REASONS

ISSUES

1.	This case was listed for pre-hearing review to consider the issue of, “Whether there was a disability within the meaning of Section 1 of the Disability Discrimination Act 1995”.

2.	The claimant suffers from asthma.  At the outset of the hearing, the respondents’ representative indicated that the respondents accepted that the claimant suffered a physical impairment within the terms of section 1(1) of the Disability Discrimination Act 1995 [“DDA”].  The issue for the tribunal is whether or not that impairment, “has a substantial and long-term adverse effect on his ability to carry out normal day to day activities” [section 1(1) DDA].

FACTS

3.	The tribunal heard from the claimant and his mother.  Additionally, the tribunal was referred to a medical report prepared by the claimant’s general practitioner [“GP”].

4.	The claimant was diagnosed with asthma shortly after his birth.  The GP states that asthma sufferers may not evidence symptoms at any given point in time, but this can change rapidly and cause wheezing, shortness of breath, and respiratory distress.  The doctor goes on to state that asthma attacks can be precipitated by respiratory infections, colds, exercise, dust, stress, “or for no obvious reason”.

5.	Throughout the claimant’s life, medication has been required to control the symptoms of his asthma. 

6.	During childhood the claimant experienced difficulties in managing his symptoms.  In one school term alone, he missed 74 days of schooling due to his asthma.  At the age of five, following a severe asthma attack, the claimant suffered a collapsed lung and required hospital treatment.  This happened again during a family holiday abroad when the claimant was twelve years old.  Due to problems with controlling his symptoms, the claimant, from the age of 8 to the age of 15, attended a consultant specialising in respiratory conditions.  During that time, the claimant suffered frequent exacerbations of his symptoms.

7.	Since the age of 15, the number of asthma attacks suffered by the claimant has reduced.  He has become better at recognising the early warning signs and managing the symptoms and medication himself.  The claimant uses inhalers, and occasionally a nebulizer, to deliver the medication necessary to control his symptoms.

8.	Twice a day the claimant uses an inhaler to administer a dose of one type of medication to control his asthma.  He may use other inhalers containing different sorts of medication if he feels an asthma attack coming on, or in an emergency situation.  The claimant always ensures that he keeps with him a supply of inhalers wherever he may be. 

9.	In order to manage his symptoms better, the claimant has taken care to identify and to try to avoid the circumstances which might trigger an asthma attack.  He identifies the main triggers for him personally as, “cold weather, stress, some exercise and cats”.

10.	In the event of an asthma attack, the claimant finds it, “difficult to walk as I become breathless, my physical co-ordination becomes difficult as I am unable to lift or carry everyday objects, and my ability to concentrate becomes impaired.  I find it nearly impossible to be able to carry out any activities when my breathing is laboured.  I also have trouble sleeping and often feel exhausted.”  The claimant’s asthma attacks can last, “for hours or days”. 

11.	In his report, the GP notes the claimant’s need to use inhalers both in the past and “for the foreseeable future”.  Despite the inhalers, the GP cautions that the claimant, “continues to need to be careful in dealing with his asthma and avoiding situations which may cause an exacerbation or acute episode”. 

12.	The GP records that situations which make an exacerbation of the claimant’s asthma likely include, “dusty or smoky atmospheres, or excessive physical exertion.  Stressful situations can also exacerbate attacks.”

13.	Between 8 October 2003 and 16 December 2003, the claimant attended the GP five times related to one exacerbation of asthma and a chest infection.

LAW

14.	The burden rests on the claimant of proving that he is disabled within the terms of the DDA.

15.	Definition of disability

Section 1(1) of the DDA provides as follows: 

“Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act 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.” [emphasis added]

16.	Long-term effects 

Paragraph 2(1) of Schedule 1 of the DDA provides that:

“The effect of an impairment is a long-term effect if – 

(a)	it has lasted at least 12 months; 
(b)	the period for which it lasts is likely to be at least 12 months; or 
(c)	it is likely to last for the rest of the life of the person affected.”

17.	Normal day-to-day activities

Paragraph 4(1) of Schedule 1 of the DDA provides that:

“An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following – 

(a)	mobility;
(b)	manual dexterity; 
(c)	physical co-ordination;
(d)	continence;
(e)	ability to lift, carry or otherwise move everyday objects;
(f)	speech, hearing or eyesight;
(g)	memory or ability to concentrate, learn or understand; or
(h)	perception of the risk of physical danger.”

18.	Effect of medical treatment

Paragraphs 6(1) and 6(2) of Schedule 1 of the DDA provide as follows:

“6(1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.

6(2) In sub-paragraph (1) “measures” includes, in particular, medical treatment…”

19.	Guidance

Section 3 of the DDA provides that a tribunal, in determining whether a person is disabled within the terms of the DDA, shall take into account any guidance on the subject published by the Department.

20.	The tribunal has taken into account the relevant guidance on matters to be taken into account in determining questions relating to the definition of disability.  The tribunal notes in particular the following matters of guidance:-

•	The requirement that an adverse effect be substantial suggests a limitation going beyond the normal differences in ability which may exist among people.

•	A substantial effect is one which is more than minor or trivial.

•	The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial.

•	Account should be taken of how far a person can reasonably be expected to modify behaviour to prevent or reduce the effects of an impairment on normal day-to-day activities.

•	In some cases people have such “coping” strategies which cease to work in certain circumstances (for example, where someone who stutters or has dyslexia is placed under stress.)  If it is possible that a person’s ability to manage the effects of an impairment will break down so that effects will sometimes still occur, this possibility must be taken into account when assessing the effects of the impairment.  

21.	Tribunal’s approach to determining whether or not there is a disability within the terms of the DDA

Morison J., sitting in the Employment Appeal Tribunal in England and Wales in the case of Goodwin v Patent Office [1999] IRLR 4, offered guidance as to how the tribunal should approach its task under section 1(1) of the DDA. 

22.	Morison J. identified four questions which must be answered under section 1(1):

(a)	Does the claimant have an impairment which is either mental or physical?

(b)	Does the impairment: affect the claimant’s ability to carry out normal day-to-day activities in one of the respects set out in para. 4(1) of the Schedule to the Act, and does it have an adverse effect?

(c)	Is the adverse condition (on the claimant’s ability) substantial?

(d)	Is the adverse condition (on the claimant’s ability) long-term?

23.	Woodrup v London Borough of Southwark [2003] IRLR 111

Mr Coll, on behalf of the respondents, has asked the tribunal to consider the case of Woodrup.  

As set out at paragraph 18 above, if the effects of an impairment are being controlled by medical treatment, the question of whether or not that impairment is likely to have a substantial adverse effect on the claimant’s abilities must be determined by reference to the effect of the impairment in the absence of the medical treatment.  In other words, the tribunal must deduce whether or not the impairment, if the controlling medical treatment was not administered, would have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities. 

In Woodrup the Court of Appeal of England and Wales addressed itself as to the evidence which might assist a tribunal in determining this question.

24.	Counsel relies in particular on paragraph 13 of the judgement where Simon Brown LJ comments: 

“In any deduced effects case of this sort the claimant should be required to prove his or her alleged disability with some particularity.  Those seeking to invoke this peculiarly benign doctrine under para 6 of the schedule should not readily expect to be indulged by the tribunal of fact.  Ordinarily, at least in the present class of case, one would expect clear medical evidence to be necessary.”

25.	Woodrup concerned a mental rather than a physical impairment, and psychotherapy rather than drug based medical treatment. 

In 1991, the appellant suffered a nervous breakdown.  Treatment was sporadic from 1993 until 1997.  After November 1997 until the hearing in early 2000 the appellant received twice weekly psychotherapy.  At the date of the hearing, the appellant was not suffering a substantial adverse effect on her ability to carry out normal day-to-day activities.  No medical evidence was adduced to support the claimant’s case under paragraph 6, the evidence was confined to what the claimant herself surmised would have happened if she was not receiving psychotherapy.

It was against this factual background that Simon Brown LJ made the comments set out above about “the present class of case”.

CONCLUSION

26.	The tribunal has concluded that the claimant’s asthma was a disability within the terms of section 1 of the DDA.  In reaching this conclusion the tribunal has considered all the submissions and evidence presented at the hearing. 

27.	Pursuant to paragraph 6 of Schedule 1 of the DDA, the tribunal finds that, but for the measures being taken to treat or correct it, the claimant’s asthma would have a substantial adverse effect on the ability of the claimant to carry out normal day-to-day activities. 

28.	The substantial adverse effect on the claimant’s abilities is set out in his evidence as recorded at paragraph 10 above, and in the GP’s comments noted at paragraph 4 above. 

29.	The long term nature of the effect of the impairment is evidenced by the long history of the claimant’s asthma and by the GP’s comment that it is likely that the claimant will continue to require inhalers, “for the foreseeable future”.  

30.	Counsel complains that the GP’s report, which is the only medical evidence adduced by the claimant, does not set out clearly, and with particularity, the GP’s opinion on the likely effect of the claimant’s asthma if the claimant did not take his regular medication. In support of this submission counsel relies upon paragraph 13 of Woodrup.

31.	As noted at paragraph 25 above, the facts in the case of Woodrup were quite different to those presented in this case.  The nature of the alleged disability was mental rather than physical, and the treatment was psychotherapy rather than drug based. 

32.	In conjunction with the claimant’s evidence, the tribunal has considered the GP’s report in its entirety.  The tribunal is satisfied that the claimant has discharged the burden of proving that he is disabled within the terms of the DDA.  

Chairman:

Date and place of hearing: 20th April 2007 at Belfast

Date decision recorded in register and issued to parties: