Burns v Department of Social Development & Ors  (Preliminary Issue : Whether Applicant Disabled)  (5 Sep 2002)
THE INDUSTRIAL TRIBUNALS 

CASE REF:	02606/00

APPLICANT:		Martin Burns

RESPONDENTS:		1.	Department of Social Development
				2.	Social Security Agency
				3.	G Johnston

DECISION ON PRELIMINARY ISSUE

The unanimous finding of the Tribunal is that there is a disability within the meaning of the Disability Discrimination Act 1995.
Appearances:
The applicant was represented by Mr Ian Rosbotham of NIPSA
The respondents were represented by Mr Francis O’Reilly QC, instructed by the Departmental Solicitor

1.	A preliminary hearing was arranged to consider the following issue:-

“Whether there was a disability within the meaning of the Disability Discrimination Act”.

2.	In his originating application dated 25 September 2000 and filed in the Office of Tribunals on 29 September 2000 the applicant claimed that the respondents had treated him less favourably on grounds of his disability in that they had failed to make reasonable adjustments in respect of his disability.

By notices of appearance dated 27 October 2000 and filed in the Office of Tribunals on 31 October 2000 the respondents denied treating the applicant less favourably than it treated others and alternatively any such less favourable treatment was justified.

3.	The following facts were not in dispute:-

3.1	The applicant was born on 27 June 1962.
3.2	He joined the NI Civil Service as an Administrative Assistant on 4 December 1978.
3.3	He started in the Social Security Agency on 5 June 1995.
3.4	He is currently a Social Security Officer, Grade 1, equivalent to EOII.
4.	The Tribunal having considered the papers before it, the evidence of the applicant and the submissions of the representatives found the following facts:-

4.1	The applicant has suffered from asthma since infancy.

4.2	He controls his asthma by medication viz by use of a Ventolin Inhaler as required, though usually every morning and a Pulmicort Inhaler, two puffs every morning.  During a good period he does not use either.

4.3	From time to time he suffers severe attacks or exacerbations of his asthma.  When this happens he consults his GP and steroid treatment is given.

4.4	He has good years; he has periods when exacerbations are not frequent and periods when they are; minor attacks of asthma will usually lift after a day or two.  This is borne out by his work attendance records.

4.5	He does not have a nebuliser and he does not attend an asthma clinic.

4.6	When he is suffering from an exacerbation he has difficulty breathing and his mobility is severely restricted.

4.7	He had had 5 – 6 such exacerbations in past 9 years.  This is confirmed by his current GP from his medical records and is consistent with his work attendance records.  The applicant indicated that approximately 60% of his asthma attacks he could deal with himself and did not need to take time off work but the other 40% he did need to take time off.

4.8	Based on the infrequency of exacerbations, the applicant does not suffer from severe asthma.  He normally walks to and from his work, a distance of 1.5 – 2 miles.  He lives alone.

5.	S1 of the Disability Discrimination Act 1995 provides: “a person has a disability for the purposes of this Act if he had 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”.

S3(1) provides that the Secretary of State may issue guidance about matters to be taken into account in determining:-

(a)	whether an impairment has a substantial adverse affect on a person’s ability to carry out normal day-to-day activities; or

(b)	whether such an impairment has a long term effect.

The Guidance published states:-

A ‘substantial’ effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects.  A ‘substantial’ effect is one which is more than ‘minor’ or ‘trivial’.

Schedule 1 of the Act sets out the ‘normal day-to-day activities’.

4(1) 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.

It also sets our what is ‘long term’:

2(1) 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.

2(2) Where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

Paragraph 6 of the schedule deals with the effect of medical treatment:-

“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”.

‘Measures’ includes medical treatment and the use of a prosthesis or aid but glasses or contact lenses used to correct eyesight are excluded.

In Goodwin  v  The Patent Office [1999] IRLR 6 Mr J Morrison (President of EAT) sets out guidance to Industrial Tribunals in Disability cases.

Referring to S1(1) he says the words of this section require a tribunal to look at the evidence by reference to 4 different conditions.

1.	The impairment condition
2.	The adverse effect condition
3.	The substantial condition
4.	The long term condition

He points out that frequently there will be a complete overlap between 3 and 4 but it will be as well to bear all four of them in mind.  ‘Tribunals may find it helpful to address each of the questions but at the same time be aware of the risk that disaggregation should not take one’s eye of the whole picture”.

6.	The onus is on the applicant to establish that he falls within the definition of a ‘Disabled Person’.

6.1	The applicant has a physical impairment in that he suffers from asthma.

6.2	When the applicant has a severe attack, ie an exacerbation his mobility is affected in that because of breathing difficulty he is virtually unable to walk any distance.  The adverse effect condition is met during an exacerbation of his asthma.  The respondents’ OHS in his report of 17 November 1997 described the applicant’s disablement as ‘minimal’ but added that he ‘will suffer exacerbations of his condition requiring time off work’.

6.3	The applicant has had asthma since infancy so the long term condition is met.

6.4	Is the adverse condition upon the applicant’s ability substantial?  It does not affect him all the time, only when he has an exacerbation.  The applicant however is on medication which he claims enables him to control his condition except in severe exacerbations.

Mr Justice Morrison in his Guidance states:-

“The tribunal will wish to examine how the applicant’s abilities had been affected at the material time whilst on medication, and then address their minds to the difficult question as to the effects which they think there would have been but for the medication: the deduced effects.  The question is then whether the actual and deduced effects on the applicant’s abilities to carry out normal day-to-day activities is clearly more than trivial. -------------Although Parliament has linked the effect of medication to the substantial condition, as we have already said splitting the statutory words into conditions should not divert attention from the definition as a whole, and in determining whether the adverse effect condition is fulfilled the tribunal will take into account deduced effects”.

Further guidance is given by Mr Justice Nelson in the EAT decision in Abadeh v British Telecommunications PLC [2001] IRLR23.  In that case a tribunal was held to have misdirected itself in law by failing to deal with the medical treatment received by the appellant.

Mr J Nelson referring to Paragraph 6 of the schedule and to Mr J Morrison’s guidance in Goodwin states:-

“Where treatment has ceased, the effects of that treatment should be taken into account in order to assess the disability.  This is the case because Paragraph 6 applies only to continuing medical treatment, ie to measures that are ‘being taken’ and not to concluded treatment where the effects of such treatment may be more readily ascertained.

Where treatment is continuing, it may be having the effect of masking or ameliorating a disability so that it does not have a substantial adverse effect.  If the final outcome of such treatment cannot be determined, or if it is known that removal of the medical treatment would result in either a relapse or a worsened condition, the medical treatment must be disregarded under Paragraph 6 of Schedule 1. Where, however, the medical evidence satisfies the tribunal that the effect of the continuing medical treatment is to create a permanent improvement rather than a temporary improvement, such permanent improvement should be taken into account, as measures are no longer needed to treat or correct it once permanent improvement has been established”.

As the GUIDANCE at B6 states in relation to recurring effects:-

“If medical or other treatment is likely to cure an impairment, so that recurrence of its effects would then be unlikely even if there were no further treatment, this should be taken into consideration when looking at the likelihood of recurrence of those effects.  However as Section A describes, if treatment simply delays and prevents a recurrence, and a recurrence would be likely if the treatment stopped, then the treatment is to be ignored and the effect is to be regarded as likely to recur”.

7.	Asthma is a disease which is ‘controlled’ rather than ‘cured’.  Control is achieved by the taking of medication, usually by inhalers.

7.1	The British Medical Association Concise Guide to Medicines and Drugs indicates that Ventolin is a bronchodilator and that ‘bronchodilators can either be taken when they are needed, in order to relieve an attack of breathlessness that is in progress, or on a regular basis to prevent such attacks from occurring’.  It further indicates that Pulmicort is a costicosteroid and that costicosteroids may be given regularly, to treat asthma but are not effective for the relief of asthma attacks that are in progress but rather are preventative treatment.  (Pages 23-24 and 78).

7.2	The tribunal accepted the applicant’s evidence that 60% of the time he was able to control his asthma by using Ventolin and Pulmicort Inhalers.

7.3	The tribunal was satisfied on the evidence before it that if the applicant did not take this medication his condition would deteriorate and he would be more likely than not to suffer exacerbations of his asthma and such exacerbations would have a substantial adverse effect on his ability to carry out normal day-to-day activities and therefore, pursuant to Paragraph 6 of the schedule and the guidance given by Messrs Justice Morrison and Nelson, such medication should be disregarded.

7.4	The applicant therefore has a disability within the meaning of S1 of the Disability Discrimination Act 1995 and Schedule 1, Paragraphs 2, 4 and 6.

7.5	In reaching its decision the tribunal took into account that the applicant has had asthma since infancy and on occasions has suffered severe exacerbations necessitating medical attention, the nature of the medication he takes to control his condition and the frequency with which he takes it.

Chairman:

Date and place of hearing:  5 June and 5 September 2002, Belfast

Date decision recorded in register and issued to parties: