Asperger’s and “High-functioning” Autism – a Disability in Law?

IndecisiveI have been prompted to write this post, in response to recent opinions and comments I have come across, challenging whether Asperger’s syndrome is in fact a disability.  Most puzzled to hear this, since it is an autistic spectrum condition and my understanding has always been, that it most definitely is a disability, I set about investigating.

For the purposes of claiming Disability Living Allowance (DLA), DLA will only be awarded depending on the effects of a condition on the individual, as there is variance between people as to degree and severity of impact.  So clearly the DWP uses the legal definition of a disability as regards impact in coming to it’s decision.  But the DWP medical guidance for decision makers (adults) list, has Asperger’s and autism on it: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/321674/a-z-adult-medical-conditions-jun-14.pdf

According to the UK Government, the definition of a disability under the Equality Act 2010 is:

You’re disabled under the Equality Act 2010 if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.

What ‘substantial’ and ‘long-term’ mean

  • substantial’ is more than minor or trivial – eg it takes much longer than it usually would to complete a daily task like getting dressed

  • long-term’ means 12 months or more – eg a breathing condition that develops as a result of a lung infection

There are special rules about recurring or fluctuating conditions, for example, arthritis. For more details about the special rules download the ‘Equality Act Guidance’.

Here is guidance on the Equality Act 2010 from the Office of Disability Issues: http://www.equalityhumanrights.com/sites/default/files/documents/EqualityAct/odi_equality_act_guidance_may.pdf  It clearly states that:

“Only those disabled people who are defined as disabled in accordance with section 6 of the Act, and the associated Schedules and regulations made under that section, will be entitled to the protection that the Act provides to disabled people.”

So I checked out section 6 and that states:

“6 Disability

(1) A person (P) has a disability if—

(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

(2) A reference to a disabled person is a reference to a person who has a disability.

(3) In relation to the protected characteristic of disability—

(a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability;
(b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.

(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)—

(a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and
(b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability.”

According to a legal adviser I communicated with recently, “there is dispute as to whether Asperger’s is a disability”.  To which my question is, by whom?  You will see shortly that this legal adviser knew something the rest of us don’t.  My research turned up the following, in addition to the above information:  http://www.autism.org.uk/about-autism/autism-and-asperger-syndrome-an-introduction/what-is-autism.aspx

“Autism is a lifelong developmental disability that affects how a person communicates with, and relates to, other people. It also affects how they make sense of the world around them.”

So the NAS considers autism a disability, they are at least part-funded by the Government and are universally accepted as the national autism charity in the UK.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/85011/disability.pdf see the section on “What is a Disability” on page 4, where autism is included.

A person receives a diagnosis of autism (including Asperger’s syndrome) because they have significant impairments that affect their day-to-day life, that’s why they are called diagnostic criteria.  By it’s very nature, autism means communication impairments.  When it’s a high-functioning autistic condition, having fluent speech makes the communication impairments no less disabling, struggling to understand humour, sarcasm, nuance, infer meaning, non-verbal body language, understand the intentions of others, literalness, all put the autistic person at a significant disadvantage and can cause all manner of difficulties.

The autistic brain is wired differently from the neurotypical brain.  There are over-connections in some areas and under-connections in others.  This means the individual processes things differently, in an atypical way.  That makes everything confusing and difficult, we are an a disadvantage – how is that not a disability?  How else do autistic people fall victim to “mate crime”, hate crime and criminal acts in general?

Many people with autism also have sensory problems, gastrointestinal problems, are more prone to epilepsy and many have a systemic connective tissue disorder known as Ehlers Danlos Syndrome – there is a strong link between EDS and autism.  We are also much more prone to sleep disorders because we have difficulties with melatonin production and processing.  Rigidity is part of autism, the need for routine and difficulty adapting to change or difference, which can have a very negative impact on functioning in day-to-day life, from the point of view of basic necessities as well as the expectations society places on us.  It is a complex condition.  The very fact that employment rates in autism are so poor, is indication enough of the impact it frequently has on the individual.  The fact that children with autism need additional support in education, some with occupational therapy and the rates of co-morbidity of additional conditions including ADHD, anxiety, depression etc. are so high, speaks for itself.  The fact that the person with Asperger’s or HFA is usually painfully aware of their differences and difficulties and the pressure society and we ourselves place on us, is an added difficulty.

Now we come to how a court of law will view a disability. After all, we have the Equality Act 2010 don’t we?  According to all the above, Asperger’s and autism are considered a disability and they definitely fit within the legal definition of the Equality Act.

When an Asperger’s friend had difficulties at work, they were disadvantaged in a way which amounted to discrimination by their employer.  They were put in a position of being compelled to take legal action, which sadly they lost.  Knowing the details of the situation, I felt this was very unjust.  It appeared that the reason they lost, was because the nature of Asperger’s as a disability, does not apply to the disabled overall, as a group.

“…the claimant had failed to establish group disadvantage for the purposes of section 19(2)(b)…. The reference to sharing the characteristic must be to the protected characteristic which in this case pursuant to Section 4 is disability. Despite observations to the contrary recited in the Equality and Human Rights Commission Code of Practice on Employment (2011), but applying the approach which would be adopted to other protected characteristics such as sex and race, the group disadvantage must be all disabled persons as opposed to a discrete group namely those suffering from Asperger’s Syndrome.”

I was dumbfounded by this, it’s bizarre.  By that criteria, no disabled person could claim disability discrimination in a court of law, because there is such a huge variety, nature or type of disability and everyone’s case is therefore different (either as an individual or as part of a “sub-group” of the disabled).  This makes a mockery of the law and renders the Equality Act 2010 effectively useless. It’s like saying if an employer removed a wheelchair ramp for people who are unable to walk and are wheelchair bound, knowing they had employees using wheelchairs who would be unable to access their place of employment, they didn’t discriminate against them because not all disabled people are in wheelchairs!  The friend in question is rightly countering with this:

http://www.legislation.gov.uk/ukpga/2010/15/section/19

19 Indirect discrimination

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

(3) The relevant protected characteristics are—

    age;
    disability;
    gender reassignment;
    marriage and civil partnership;
    race;
    religion or belief;
    sex;
    sexual orientation.

So it’s very confusing that my friend lost their case, because according to section 6 of the Equality Act 2010 this friend should have been protected.

My friend was penalised for something directly resulting from their Asperger’s and they were not given reasonable adjustments by their employer either, even though their employer knew they had Asperger’s.  It’s even more evident when you consider that the Equality Act 2010 guidance also says this:

“Indirect disability discrimination happens when there is a rule, a policy or even a practice that applies to everyone but which particularly disadvantages people with a particular disability compared with people who do not have that disability, and it cannot be shown to be justified as being intended to meet a legitimate objective in a fair, balanced and reasonable way. As with discrimination arising from a disability, it is necessary to strike a balance between the negative impact of rules or practices on some people and the reasons for applying them.  So you should consider whether there is any other way to meet your objectives that would not have a discriminatory effect.”

It sets a worrying precedent that a court of law came to this finding.  It gives carte blanche to employers to act as they want with complete disregard to the rights of the disabled, it places the rights of the disabled on very shaky ground.  Or are they now saying that only physical disabilities count?  Are invisible disabilities such as autism not as “important” as physical disabilities?  Because that’s discrimination in itself.

So with a diagnosis of ASC, you may have been to a special school, you may have had a statement of SEN, you may have needed all sorts of support growing up, you may live in supported housing and need support workers, you may claim DLA, you may be medicated for your difficulties and you may have co-morbid conditions causing you additional challenges, but no matter how much you are discriminated against, you cannot claim discrimination because disabled people as a group, do not all have the same disability or difficulties as you.  Well there is yet another law that isn’t worth the paper it’s printed on!

Some autistics like to say “I’m not disabled, I have a difference” and I do agree that the neurology we have is a difference, because autism is not a mental illness and I am also glad of the positive attributes it has given me.  But the way society is, the environment we have to exist in because there is no choice, makes life frequently disabling for most of us, and we’d be lying if we said there were not many disabling aspects of the condition – we would not have been diagnosed otherwise.  That’s not the same as saying you are ‘giving in’ to a disability and not trying to reach for goals or to make a success of your life.  But apparently, legally we are not disabled, despite what it says everywhere you check and we are unprotected in law.  So I ask – who is going to do something about this?  Why has a law been written which excludes those with Asperger’s and high-functioning autism, whilst pretending that it does not?

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23 thoughts on “Asperger’s and “High-functioning” Autism – a Disability in Law?

  1. Although the matter is very technical, the posting about “…- a Disability in Law?” raises an interesting point. It would be instructive to have a summary of the particular circumstances that lead to the complaint and, if possible, a reference to the Employment Tribunal decision.

  2. And what about this! http://www.learningdisabilities.org.uk/content/assets/pdf/publications/People_with_Asperger_Syndrome_Employment.pdf?view=Standard

    *The law and advice available*

    Disability and equality laws, as well as Health and Safety legislation, place a duty of care on employers to make reasonable adjustments for their disabled employees. In turn, this places an onus on Human Resources (HR) and Occupational Health (OH) departments to guarantee that the appropriate supports are in place to ensure that those with a disability (including Asperger syndrome) do not face barriers to employment success. With this in mind, the purpose of the joint project was to explore how people with Asperger syndrome who experience mental health problems can best be supported in the working environment. The aim was to produce a set of guidelines and information for HR and line managers.

    In essence, it is important for those in HR to appreciate that Asperger syndrome is considered a disability under both the Disability Discrimination Act (DDA; 2004) and the Equality Act (2010).

  3. Personally, I do not consider my autism a disability. I consider my OCD a disability, but that’s another story.
    However, I am quite high functioning, and I think low functioning autism can be considered a disability in many cases, where they are severe impairments or difficulties involved.

  4. Thanks for your comment maximusaurus. There are AS traits I have which I see as beneficial and I would not probably have if I were NT. But there are also traits which do affect my day-to-day life detrimentally (a recent experience of being badly let-down by someone I thought of as a friend, which I didn’t see coming is something for instance attributable to my difficulties in recognising intentions and other facets) although there is also something to be said for the fact that many of our difficulties are only difficulties because of the way society works and the expectations society has of us (in other words what is considered “normal”). I do think how disabling it is, depends not only on the degree of the impairments themselves but also the very individual circumstances someone finds themselves in. E.g. in the right circumstances it can be unnoticeable, but as I always say, put that same autistic person in in-conducive circumstances and watch them unravel and the autism become very apparent.

  5. Please read my blog by googling finolamoss, to find out, the real horror, of being labelled disabled in law.

    Under the Mental Capacity Act 05, effectively anyone, can be deemed to have, ‘an impairment of mind’, and then be deemed incapable of any decision, and effectively deemed insentient read my latest blog post.

    If you need special needs education, now you get no school at 16, and from 5, have a social worker in your life, under the new Education Care and Health statements, and can be removed from your parents, on made up evidence as to hygiene, neglect, parental capacity, anything the nanny state deems best for you, and sent to any residential school they want to place you in, so they can make huge profits, and put on any medication .

    Your special education funding, is dependent upon you being permanently behind, otherwise the school loses it. And gets more the less you achieve.

    See how such education, damaged my autistic daughter, but made millions for the educators.

    You also risk losing your babies to adoption under care orders.

    All highly discriminatory but state policy.

    So be careful what you wish for…………….

  6. Thanks for your post finolamoss, I have read some of your blog before and I understand what a terrible situation you have been in with your daughter. However, there are laws to protect the rights of disabled people or people with mental health issues, such as the Disability Discrimination Act 2005 and the Equality Act 2010. Innocent parents are having their children stolen by the state without any disability being involved, that is an issue with the child protection system being out of control and having no accountability. In fact, without a disability being found as the cause for a child’s atypical behaviour there is a strong possibility parents will be personally held responsible for their child’s difficulties and falsely accused of abuse or neglect. As for being deemed incapable, parents in families without disabilities being present (or named) can have LA paid for psychiatric assessments done on them branding them wrongly with personality disorders or mental illness which the court uses to remove their children anyway. As I’ve pointed out before, it’s not a problem with the disability label it’s a problem with the child protection system and the courts of protection.

    1. If a person, or child, is to be labelled ASD, then they should be made aware of the likely consequences.
      It a parent is labelled with ASD, this will be used against them, in the care courts, and it is almost inevitable, if targeted, that they will lose their children, particularly if young, and adoptable.

      If their child is labelled, then the social services will be involved, under the new Education, Health and Care statement, the school will require, before their child can start school.

      The effect of these statements is, that purely because of the child’s disability label, the parents, home, and child will be secretly monitored by social services, for neglect, emotional abuse, parental capacity, safety and hygiene .

      A SS file will be built up, and, often without warning, the parents may find themselves subject to care proceedings, brought to control whatever medication, residence schooling etc the social services want, and silent any dissent.

      Siblings, will also usually be made subject to such orders, as it strengthened the LA case.

      Once subject to special needs education, the school will want to maintain their extra income, and increase it, if possible, so this will not normally aid, your child’s scholastic progress, quite the reverse.

      A child subject to an ECHR, cannot attend a school after 16, and will get a home based education ad hoc package, usually, to prepare them with skills needed, which they should already have, to make them more manageable, in independent, away from family living at 18..

      As they have a label, it is more likely, that they will be found ‘incapable’ under the MCA, illegally, and have all their decision making removed from them and their parents at 18.

      They will then spend their life controlled, and captured by the state, and the label from 5, or under, has very much facilitated this.

      Read my article, ‘ Disability Trap’, on the care court and law’s attitude to disabled parents, and children, in the New Law Journal in net.

      Parents should get a second opinion, and, if they have the money, pay for private education as EHCs do not apply to private schools, and therefore intervention, is not then automatically placed in their child’s and families life.

      They should not allow themselves to be bullied, into having their child given any label, let alone, one as serious, and vague, as ASD.

  7. It is untrue that social services are always involved in an EHCP, I know this from personal experience. It may vary depending on where you live (as with so much within the UK relating to disability) but in my experience, unless you have social services currently involved when you apply for EHCP or there is an obvious need for their involvement, they will not be opening a file on the child. All disabled children are considered Child in Need according to law, but if you go back to what is in my blog post, some in the legal system are challenging whether Asperger’s and high-functioning autism are in fact considered a disability at all. The situation may be different with individuals considered “low-functioning”.

    You are making some grossly inaccurate statements such as “A child subject to an ECHR, cannot attend a school after 16, and will get a home based education ad hoc package”.

    Part of the new SEN Code of Practice and EHCPs is that the child’s and family’s views have increased weight under new law and there is even a section for each of them within the EHCP form. There are also rights under Article 12 The United Nations Convention On The Rights Of The Child (http://www.unicef.org/crc/files/Rights_overview.pdf) which underlines that children who are capable of forming views have a right to receive and make known information, to express an opinion, and have that opinion taken into account in any matters affecting them. My children for instance have stated they wish to go to university.

    You may have had an awful experience, for which I am truly sorry and I hope it is resolved for you and your daughter but unless you have some strong evidence that the issues you claim are widespread and happening regularly, this appears to be based on your own experiences and interpretations.

    Bearing in mind that LA’s usually always fight Statements of SEN/EHCP and parents end up going to SENDIST to get them, it would appear untrue that they are dishing them out for the purposes you state. In fact, someone I know, knows someone that works in the SEN department and told me that every time a parent loses claim for Statement of SEN (as was) a cheer went up round the department.

    Most parents don’t want a label for their child, but they do want an answer for their child’s difficult behaviour which often negatively impacts the whole family and as to why their child is suffering so much in school and why they are having such massive meltdowns. Without a diagnosis, it is extremely difficult and sometimes impossible to obtain support that a child needs or access to the right school.

    If social services are gunning for someone, they will do it regardless of a label (and as already stated, because there isn’t one) and they will prepare a file on your family because of any reason they can find, if they can’t and they want your children they will invent reasons. That is not because of disabilities, it’s because the social care system is corrupt.

  8. PS http://www.newlawjournal.co.uk/nlj/content/disability-trap requires a password to access. I am sure you will have identified some valid flaws, people need to campaign against the many flaws in both the courts of protection and the child protection system. But it’s not right to scare people out of seeking correct diagnosis for their child because often that is the only way they will obtain any support and autistic children can quickly head for nervous breakdown without that.

  9. Some autistics like to say “I’m not disabled, I have a
    difference.”

    Which is both correct and incorrect at the same time. To state it more accurately, I would say, “I don’t have a disability, I have a difference. However, it’s because of that difference I’m often disabled by societal presumptions.”

  10. Hi. I have enjoyed reading all this research. Thank you. I look forward to reading any comments in my email.
    I have Asperger’s Syndrome and I am grateful to some aspects of this. All the best Jan

  11. Greetings,

    I appreciate ur article and concure entirely. I’m nearly 50 and was just, 6 months ago, diagnosed. The life costs have been as staggering as they’ve been debilitating. I’ve lost (by way of blindside firing) 3 career defining jobs and a tech product that’s now on every post-2007 mobile device. My only saving grace has been my parents, they saved my life and have honestly, never let me down. I’m thankful for them.

    1. I’m so glad your parents have been there for you David and been the people you could rely on when the chips were down (no pun intended). It’s beyond tragic that autistic people with so much intelligence and so much to give, find they are held back and sometimes sent into a downward spiral, by the society we live in which doesn’t accommodate our differences.

  12. I have Aspergers, ADD, and tic syndrome (tourettes). Every time I fill in a job application I get asked if I have a disability and I say no. When it comes to medical information during interviews I tell the truth and tell them about my diagnosis. If this is not an issue should I mention them at all?

    1. No Matthew it’s entirely your decision. Obviously you can’t lie when it comes to the medical information, but if you don’t see yourself as disabled that’s your prerogative in stating you are not disabled. If you didn’t declare your conditions though and had problems performing your job due to lack of reasonable adjustments the law requires them to provide, you wouldn’t be able to say they discriminated against you because they would have been unaware. It may be that in the jobs you do you don’t need reasonable adjustments, but claiming reasonable adjustments can only happen if you explain why. There are employers now starting to see ASD as a benefit for employees, due to things like eye for detail but that isn’t across the board.

    2. It would appear ‘disability’ in law depends on the means/statute being used.

      ASD all’ levels’ were added in 2009 to the Mental Health definition of a mental Disorder for the purposes of the MHA.

      This then made it easier to section the autistic, as they were then by their label automatically mentally disordered.

      From an assessment for PIP/DWP the assessors decide who is too ‘disabled’ to work.

      If not disclosed in a job application/ interview, it may possibly lead to failure to disclosure and change of terms of employment, but not overtly/expressly because of autism, as this might result in a claim under the Sex Discrimination Act for discrimination on the grounds of autism which is covered by that Act.

      From an education perspective, SENS now EHCs, if autistic you would also have to prove you had special educational needs to warrant funding.

      So not much point in getting such a huge vague label by which you can be identified and pigeonholed by.

  13. @finnolamoss Totally agree about the discrepancy and it seeming that it’s for when it suits by the authorities.

    DLA/PIP assessors decide who is too disabled to work based on professional reports from doctors and consultants etc. Autism is listed as a condition that is one they consider for the purposes of DLA/PIP.

    I would be very surprised to find that autism is part of the Sex Discrimination Act because autism is not gender specific. However, if Matthew wants to have a read up here is the Act in question: https://www.legislation.gov.uk/ukpga/1975/65

    I would strongly disagree with you about ASD being a vague label. Of course there are a variety of subtypes of ASD and each subtype has it’s own diagnostic criteria which are specific and which must be met to receive the diagnosis. It’s also not a label to identify and pigeonhole someone with, especially as in Mattthew’s case he is choosing not to disclose his diagnosis. In education, to receive the right targeted support of course the diagnosis would need to be disclosed, otherwise the autistic child cannot access their education adequately and sometimes not at all. Autistic children can be excluded or school-refuse through their difficulties and it’s only having the diagnosis that can protect them. By that I mean giving them reason to have an EHCP which is a legal document entitling them to particular support stated by professionals to be needed, or by protecting the parents from false accusations of not ensuring their child attends school, as their mental health can be understood as a medical need and open up options to alternative provision, LA home tuition, etc.

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