BLB Partner and specialist chronic pain solicitor, Andrew Atkinson, explores the increasingly topical subject of rights for people with invisible or hidden disabilities. Contact Andrew on 01225 462871 or email him.
Chronic pain, neurological problems, deafness, blindness, autism, psychiatric conditions, learning disabilities, epilepsy, diabetes, cystic fibrosis, chronic fatigue, Crohn’s disease – the list goes on. There really are any number of invisible disabilities.
How do you define invisible disability?
Defining invisible disability is more difficult than may first appear. The best attempt I have found comes courtesy of an American non-profit organisation, the Invisible Disabilities® Association, who say:
“In simple terms, an invisible disability is a physical, mental or neurological condition that is not visible from the outside, yet can limit or challenge a person’s movements, senses, or activities. Unfortunately, the very fact that these symptoms are invisible can lead to misunderstandings, false perceptions, and judgments [sic].”
They are sometimes referred to as hidden rather than invisible disabilities. Personally, I far prefer ‘invisible’ as the word ‘hidden’ suggests (to me anyway) deliberate concealment or even something to be ashamed of.
Invisible Disability Rights
In recent years, rights for those with invisible disabilities have become increasingly topical.
The starting point for all disability rights is the Equality Act 2010 (EA), which brought together a staggering 116 separate pieces of legislation into one Act. But disability is just one of nine characteristics protected by the EA, which provides a legal framework designed to protect the rights of individuals and advance equality of opportunity for all.
So, while it provides a benchmark for the further development of disability legislation, it is important to remember that the EA has an incredibly broad reach and is not simply a list of your rights. Should you have a question regarding a specific scenario, the EA is unlikely to provide you with a clear answer. There are innumerable disabilities and any number of scenarios where rights require clarification. It is up to the government and parliament to develop the legislation and, as and when required, for the courts to interpret it. In a few areas that has begun to happen.
Blue Badge parking permit for invisible disabilities
Back in 2018, we published an article heralding new rules to make it easier for those with invisible disabilities affecting mobility to apply for a Blue Badge parking permit.
The crux of the problem has been that Blue Badge permits are not issued centrally, but rather by the applicant’s local authority. While the rules were meant to embrace all conditions, visible or otherwise, it had long been apparent that different local authorities were not always interpreting the rules in the same way. The Department for Transport therefore sought greater clarity in the application process. While it is clear that the rule changes, which eventually came into force on 30th August 2019, are aimed particularly at benefiting people with mental health conditions, it is hoped that those with other invisible disabilities will benefit.
Employees with invisible disabilities
Employees with a disability are entitled to legal protection against discrimination and to “reasonable adjustments” to accommodate their disability. Often, however, people with invisible disabilities are reluctant to come forward and advise their employer of their limitation(s). Typically, this is through fear of being judged unfairly by their employer or colleagues – “you don’t look disabled” – or a desire to avoid the perceived stigma of being labelled disabled.
Some feel that colleagues will believe they are being treated advantageously, resulting in resentment.
From the employer’s perspective, making reasonable adjustments to enable a person to function the same as their colleagues can only have a positive effect on the business.
The TUC have produced some excellent guidance on supporting people with invisible disabilities in the workplace.
In an earlier article, we brought together Jennifer Renney-Butland, a specialist employment solicitor, and Gary Ford, a Vocational Occupational Therapist, to examine some of the numerous legal and practical challenges in the workplace faced by those suffering CRPS and chronic pain. The issues they discuss will, however, will be equally applicable to other types of invisible disability.
Benefits for invisible disabilities
A big problem with any application to the Department for Work and Pensions (DWP) for disability related benefits is the ‘one size fits all’ nature of the necessary forms and procedure. Conditions that are not visible cannot be measured easily and where symptoms can fluctuate – mental illness, fibromyalgia, chronic fatigue etc – applicants have traditionally struggled for parity of recognition alongside those with visible, quantifiable, unremitting disease and disability.
In numerous earlier articles, we have considered the myriad of issues to be overcome as applicants attempt to wade through the quagmire of benefits bureaucracy. Here are a few:
But the DWP are not the only benefits-awarding body. Last year, local authorities were urged by the Local Government and Social Care Ombudsman to check their procedures to avoid disadvantaging people with invisible disabilities. This followed the publication of three separate investigation reports into councils not doing enough to enable people to use their services. They involved one case of not making reasonable adjustments to help a woman with autism to repay overpaid housing benefit, and two councils not helping a man with severe dyslexia to deal with parking tickets and permits.