The House of Lords has ruled on the meaning of the word “likely” in respect of the definition of disability in the Disability Discrimination Act 1995 (the Act), overturning previous authorities on this issue.

Section 1 of the Act defines disability as a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day to day activities.

Schedule 1 of the Act provides guidance in respect of the components of that definition. Under the definition of “long-term effect”, the Act states that the effect of an impairment is long term if: it has lasted 12 months; the period for which it lasts is likely to be at least 12 months; or if it is likely to last for the rest of the life of the person effected. The word likely also appears under guidance about the effect of medical treatment and throughout Schedule1.

Previous authorities had held that likely meant that something was more probable to happen than not, ie, if there was a 51 per cent chance of an impairment recurring it would fall under the definition of “long term” in the Act.

However, the House of Lords in SCA Packaging Ltd v Boyle (2009) has held that likely refers to an outcome that “could well happen” rather than one that is “more probable than not”. The Lords found that predicting whether or not something was going to occur with any degree of accuracy was difficult in the context of impairments and therefore it was inappropriate to apply an exacting test involving probability. Hence a broad and less exacting test has been adopted making it easier for claimants to demonstrate that their conditions fall under the definition of disability.

The case can be accessed here.