Woodrup v London Borough of Southwark [2002] EWCA Civ 1716, [2003] IRLR 111
The role and importance of medical evidence in determining whether an individual is disabled in disability discrimination claims has now been considered by the Court of Appeal judgment of Woodrup v London Borough of Southwark.
At a preliminary hearing as to whether Ms Woodrup was disabled under the DDA, she gave evidence herself of her "anxiety neurosis" which she had had for many years and in relation to which she received psychotherapy treatment. Her evidence to the Tribunal was that "If medical treatment were stopped, then I would deteriorate and full symptoms would return."
She also produced letters, one from a locum at the Maudsley Hospital, a specialist psychiatric teaching hospital, summarising her treatment there from 1991, sick notes from two GPs and a 1999 letter from a consultant psychotherapist confirming her attendance at regular psychotherapy sessions and stating that she was not yet fit enough to leave the group and that if she did do so her recovery would be jeopardised.
She relied on paragraph 6 of Schedule 1 of the DDA dealing with "deduced effects". Paragraph 6 states that "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."
The Tribunal held that there was an absence of medical evidence to enable her to substantiate her claim. They decided not to adjourn the hearing to allow her more time to obtain suitable evidence in that the opportunity of obtaining medical evidence had been offered to her previously and she had not taken it up. The EAT upheld the Tribunal's decision and rejected Ms Woodrup's argument that the Tribunal failed to take into account paragraph 6.
The Court of Appeal likewise dismissed Ms Woodrup's appeal. The main issue before the Court was the impact of paragraph 6. In deciding that Ms Woodrup had failed to bring herself within that paragraph, Lord Justice Simon Brown describes the deduced effects provisions as being "a peculiarly benign doctrine" and that applicants seeking to bring themselves within its ambit "should not readily expect to be indulged by the tribunal of fact. Ordinarily, at least in the present class of case, one would expect clear medical evidence to be necessary." In terms of what would have happened had she stopped receiving the psychotherapy treatment, the Court held that she, a lay person, could not possibly know what the effect of her stopping the treatment would be. Her evidence carried little weight on this point.
Ms Woodrup also argued that the Tribunal were subject to Part III of the DDA and should have adjusted the conduct of the hearing by adjourning the case so as to allow her as a disabled person to obtain suitable medical evidence. In rejecting this suggestion, Lord Justice Simon Brown described this proposition as carrying paragraph 6 to absurd lengths to say a Tribunal in deciding whether someone is disabled must in deciding its own procedures pretend that the claimant is disabled when it knows he or she is not.