Depression can (but does not always) have legal status as a disability. Much depends on the severity of the depression, the length of the episode, and any past history of depression.
The Disability Discrimination Act (DDA) 1995 and 2005 give disabled people the right not to be discriminated against in:
- Access to goods, facilities and services, including larger private clubs and
- land-based transport services
- Buying or renting land or property, including making it easier for disabled
- people to rent property and for tenants to make disability-related adaptations
- Functions of public bodies, for example issuing of licences
When is depression a disability?
The DDA defines a “disabled person” as: a person with “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”. In order to qualify as being disabled, someone with depression must show that:
- S/he has a recognised “mental impairment”
- It is a long-term condition
- It is severe enough to have an impact on his/her ability to function day-to-day
All three conditions must be met for a person to be considered disabled.
Depression qualifies as a “mental impairment” within the terms of DDA because it is a condition recognised by a respected body of medical opinion. “Stress”, for example, would not qualify a “mental impairment”, since it is not recognised as a medical condition.
Depression may not qualify as being “long-term” because it may not last 12 months, and it may not recur. In practice, this means that someone experiencing a first episode of depression may not qualify as disabled, where someone who has had several episodes (which add up to more than 12 months) may.
Depression will only be considered a disability if it has an impact on a person’s ability to carry out routine day to day tasks – this does not apply to any specialist skills that a person may have, but only to routine tasks that any able person might do as a matter of routine. In practice, depression will be a disability if it impacts on:
- Manual dexterity
- Physical co-ordination
- Ability to lift, carry or otherwise move everyday objects
- Speech, hearing or eyesight
- Memory or ability to concentrate, learn or understand
- Perception of the risk of physical danger
A person’s ability/disability is judged according to how they would be without any treatment they might be receiving. So if, for example, you are taking an antidepressant that allows to function, your status would be assessed in terms of how your depression would affect you if you were not taking the antidepressant.
The disclosure dilemma
Because of the discrimination experienced by people with depression, many choose not to disclose their condition or to limit disclosure only to those who have to know. However, non-disclosure can cause problems if at a later stage they need to establish that their condition is severe and enduring. For example, in many cases people do not disclose their depression to a potential employer because they fear that this could count against them. However, if they become depressed later on, their employer may be able to lawfully dismiss them for failing to disclose their condition when they were first employed.
There is currently no solution to the disclosure dilemma. If you do disclose, you may well encounter discrimination. If you don’t disclose and are later discriminated against, you may not be protected under the DDA.
Sources of support
You can find out more about your rights on the Equalities and Human Rights Commission website. If you feel that you have been discriminated against, it is important that you seek appropriate advice. There are several potential sources of help:
- Trades Unions offer legal services to their members
- Law Centres operate in may areas, providing free legal advice
- Citizens Advice can offer advice on DDA issues
- Many private law firms specialise in DDA cases – but you should make sure you see a solicitor with experience in disability law