Equality Act 2010 - is KC a disability?

[Steven Williams]

If you are diagnosed with keratoconus, a progressive, debilitating eye disease, are you protected against discrimination at work under this legislation (i.e is the condition,now like cancer, recognised as a disability as soon as it is diagnosed)?:-

http://www.equalityadvisoryservice.com/ci/fattach/get/586/1354033333/redirect/1/filename/disability-definition.pdf

[Anne Klepacz]

KC doesn't automatically qualify as a disability - it wouldn't make sense if it did, as people can be diagnosed with mild KC which won't ever progress very far and can be well corrected with glasses or contact lenses. But if KC does continue to progress to the point where it has a significant effect on daily activities then yes, it should qualify for protection against discrimination under the Equality Act. Of course, all the definitions in the act like 'significant' and what qualifies in length of time can be argued over. Charities like Action for Blind People have experts in employment and discrimination law who can better advise in individual cases than we can.
Anne

[kieran19685]

I had mild KC and have perfect vision with contacts. I certaintly dont class myself as disabled. I can do things better than most normal people with normal vision including obtaining a degree and having a well paid job.

[James_Ldn]

To give the other side of the story, I have mild KC yet I don't get perfect vision with contacts and it certainly has affected my ability to do my job. Keratoconus affects different people differently. Some people may have severe KC yet find a solution which works for them, some who have KC at a less advanced stage may still struggle.

[Andrew MacLean]

I don't think that keratoconus is a disability but I do think that it can leave some of us disabled.

[Steven Williams]

Have any of you actually thoroughly read and considered the full content of the link?

My interpretation of the content of the link is that KC is a disability upon its diagnosis as like cancer it is a progressive debilitating disease. This is an issue I would expect our charity to look into and if necessary use its funds to get legal clarification.

Persons with HIV infection, cancer and multiple sclerosis
A9.
The Act states that a person who has cancer, HIV infection or multiple sclerosis (MS) is a disabled person. This means that the
person is protected by the Act effectively from the point of diagnosis. (Sch1, Para 6). (See also paragraphs B18 to23 (progressive conditions)

Equality Act 2010
Guidance on matters to be taken into account in determining questions relating to the definition of disability

23 Progressive conditions

B18.
Progressive conditions, which are conditions that have effects which \increase in severity over time, are subject to the special provisions
set out in Sch1, Para 8 These provisions provide that a person with a progressive condition is to be regarded as having an impairment which has a substantial adverse effect on his or her ability to carry out normal day-to-day activities before it actually has that effect.

B19.
A person who has a progressive condition, will be treated as having an impairment which has a substantial adverse effect from the moment
any impairment resulting from that condition first has some adverse effect on his or her ability to carry out normal day-to-day activities, provided that in the future the adverse effect is likely to become substantial. Medical prognosis of the likely impact of the condition will be the normal route to establishing protection under this provision. The effect need not be continuous and need not be substantial. (

See also paragraphs C5 to C8 on recurring or fluctuating effects). The person will still need to show that the impairment meets the long-
term condition of the definition. (Sch1, Para 2)

B20.
Examples of progressive conditions to which the special provisions apply include systemic lupus erythematosis (SLE), various types
of dementia, and motor neurone disease. This list, however, is not exhaustive.

Equality Act 2010
Guidance on matters to be taken into account in determining questions relating to the definition of disability

24
A young boy aged 8 has been experiencing muscle cramps and some weakness. The effects are quite minor at present, but he has been diagnosed as having muscular dystrophy. Eventually it is expected that the resulting muscle weakness will cause substantial adverse effects on his ability to walk, run and climb stairs. Although there is no substantial adverse effect at present, muscular dystrophy is a progressive condition, and this child will still be entitled to the
protection of the Act under the special provisions in Sch1, Para 8 of the Act if it can be shown that the effects are likely to become
substantial.A woman has been diagnosed with systemic lupus erythematosis (SLE) following complaints to her GP that she is experiencing mild
aches and pains in her joints. She has also been feeling generally unwell, with some flu-like symptoms. The initial symptoms do not
have a substantial adverse effect on her ability to carry out normal day-to-day activities. However, SLE is a progressive condition, with
fluctuating effects. She has been advised that the condition may come and go over many years, and in the future the effects may become substantial, including severe joint pain, inflammation, stiffness, and skin rashes. Providing it can be shown that the effects are likely to become substantial, she will be covered by the special provisions relating to progressive conditions. She will also need to meet the ‘long-term’ condition of the definition in order to be
protected by the Act.

B21.
The Act provides for a person with one of the progressive conditions of cancer, HIV and multiple sclerosis to be a disabled person from the point at which they have that condition, so effectively from diagnosis. (See paragraph A9.)

Equality Act 2010
Guidance on matters to be taken into account in determining questions relating to the definition of disability
25

B22.
As set out in paragraph B19, in order for the special provisions covering progressive conditions to apply, there only needs to be
some adverse effect on the person’s ability to carry out normal day to day activities. It does not have to be a substantial adverse effect. If a person with a
progressive condition is successfully treated (for example by surgery) so that there are no longer any adverse effects, the special provisions will not apply. However, if the treatment does not remove all adverse effects the provisions will still apply. In addition, where the treatment manages to treat the original condition but leads to other adverse effects the provisions may still apply.

A man has an operation to remove the colon because of progressing and uncontrollable ulcerative colitis. The operation results in his no
longer experiencing adverse effects from the colitis. He requires a colostomy, however, which means that his bowel actions can only be controlled by a sanitary appliance. This requirement for an appliance substantially affects his ability to undertake a normal day-to-day activity and should be taken into
account as an adverse effect arising from the original impairment.

B23.
Whether the effects of any treatment can qualify for the purposes of Sch1, Para 8, which provides that a person with a progressive
condition is to be regarded as having an impairment that has a substantial adverse effect on his or her ability to carry out normal day-
to-day activities, will depend on the circumstances of the individual case

[Steven Williams]

The following responses received from the government's Equality Advisory Support Service for information:-

From: eass@custhelp.com
Date: 28/01/2014 12:18

Recently you requested personal assistance from our on-line support centre. Below is a summary of your request and our response.

We are continuing to work on your issue. To provide more information, click the following link or paste it into your web browser.
equalityadvisoryservice.com/app/account/questions/detail/i_id/41345


Response Via Email(Drew Hall) - 28/01/2014 12:18
Date: 28.01.2014
Subject: disability definition

Unfortunately as non-legal advisors, we cannot confirm for you whether or not you have a disability. We can only advise what may be considered to be one using the definition which I provided before.

Additionally to this, there are actually four cases where the definition is not needed, HIV, Cancer, Multiple Sclerosis and as I mentioned yesterday if someone has a sight impairment, which has to be registered by a GP or an Occupational health specialist.

It seems likely from what you have said that you would be considered to have a disability under the Equality Act, however it is for a judge to decide whether or not the definition applies to you.

If you need further clarification on this, you can find more detail on page 11 of the Equality Act Guidance which you can find on our website equalityadvisoryservice.com

Regards
Drew Hall BA
Equality Advisory Support Service

From: eass@custhelp.com
Date: 27/01/2014 16:58

Recently you requested personal assistance from our on-line support centre. Below is a summary of your request and our response.
If this issue is not resolved to your satisfaction, you may reopen it within the next 30 days.

Thank you for allowing us to be of service to you.

Response Via Email(Drew Hall) - 27/01/2014 16:58
Date: 27.01.2014

Subject: disability definition

The definition of a disability under the Equality Act is a physical or mental impairment which has a substantial, long term and adverse effect on a person’s ability to carry out normal everyday activities.

There are three circumstances where the definition is unnecessary as they are automatically classed as a disability. These conditions are: Cancer, all or partial sight impairment, and multiple scleroses.

Regards
Drew Hall BA
Equality Advisory Support Service

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[Anne Klepacz]

Thanks for the additional clariifcation, Steven. So as I understand it, anyone with an eye condition is only automatically classed as having a disability if they have been registered as visually impaired. As the current criteria for registration measure vision when wearing glasses or contact lenses, not many of our members qualify for this although we certainly do have some who have been registered (and in some cases have then come off the register when their sight has improved eg after a graft). But as I said before, people with KC who aren't registered can still be covered by the Equality Act if their KC has a 'substantial, long-term and adverse effect on everyday activities'. And employers should make 'reasonable adjustments' to enable those people to carry out their job. There's more information on this in the leaflets about KC and work which can be downloaded from the home page of this website.
Anne

[GarethB]

I know some optomotrists faught to have the term legally blind redifined which would help and they tried to gain support from within their profession and from the many charities that have visially impaired members. The legal definitions regarding blindness and many other tests to determine how vision should be tested is 100 years or more old.

For those with a hearing impariment, to deteremine if their level of disability, the hearing is tested without a hearing aid regardless if they have one or not.

Therefore if we were treated the same, our level of disability would be assessed with no visual correction.

The downside is non one would take the lead which was hampered by one emenent gentleman of one of the optometry groups saying if he took his glasses for shortsightedness does that then mean he is visually imapiered? This attitude I am afraid is also prevelant in the general community of people who aren't visually imapired such as we are but wear glasses because they are short or long sighted or choose to wear contact lenses for cosmetic reasons.

Such attitudes within the professional community show how out of touch some of them are so when some one did step up to tackle this very issue they found they were pretty much a lone voice so nothing was done!

As Ann pints out there are other aspects of legislation in place that protect us in this grey area and I and many others have found that working with Action for the Blind has resulted in the support we needed when it was required.

Fortunatly for the past six years I haven't needed such assistance, but I know it is there should I ever need it in the future.

[Steven Williams]

Thanks for the additional clariifcation, Steven. So as I understand it, anyone with an eye condition is only automatically classed as having a disability if they have been registered as visually impaired. As the current criteria for registration measure vision when wearing glasses or contact lenses, not many of our members qualify for this although we certainly do have some who have been registered (and in some cases have then come off the register when their sight has improved eg after a graft). But as I said before, people with KC who aren't registered can still be covered by the Equality Act if their KC has a 'substantial, long-term and adverse effect on everyday activities'. And employers should make 'reasonable adjustments' to enable those people to carry out their job. There's more information on this in the leaflets about KC and work which can be downloaded from the home page of this website.
Anne

It would be helpful if you could specifically refer to the links you are referring to Anne and if you could address these questions:-

1. Registered as visually impaired with who?

2. So who is responsible for making the decision and taking the lead role to register a person registered with KC as visually impaired?

3. At what stage/level of vision does a person with KC become defined as visually impaired? For instance is it when with contact lenses your vision falls below the driving standard of vision,or is it when you are informed that your only option is a graft?

There appears to be no parity/equity in classifying a progressive debilitating disease such as cancer, MS, HIV when it is diagnosed and not applying the same principle to keratoconus.

What action/representation does our charity intend to take on this issue?