Defining Disability in Irish Law

inaccessible housing, poor lighting, poor seating, broken lifts or poorly managed street and public spaces’.5

These barriers operating in society are not solely restricted to physical barriers and can be attitudinal as well. Assumptions that people with certain impairments cannot, for example, work or live independently, or raise children – all stem from biased labels that limit persons with disabilities. Additionally, inadequate provision of supports operates is itself as a barrier, for example in considerations of decision-making capacity its effective exercise for persons with cognitive disabilities may require assistive technology or interpretation.

Mike Oliver, a person with disability, was a pioneer of the disability rights movement in the 1980’s. A key advocate of the social model of disability, Oliver believed that the social model, in recognizing barriers as the cause of disability, is a powerful tool for personal and collective emancipation.

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Advocates for disability rights tend to prefer the social model, as it does not denigrate persons with disabilities’ agency and locates disability in societal failures. The social model encourages disabled people's right to independence and control over their life.

Conclusion

Michael Foucault presented the idea of heterotopia – the idea of making visible a different world within the existing one.

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Applying Foucault’s heterotopia to the world of disability rights results in the realization that society may need a model that envisages a non-disabling, fair and safe society to build into the fabric of the present society. The social model appears better aligned with this possibility. It encourages persons with disabilities to assume positions of power, to build support systems, inclusive environments, and shift those ‘fixed’ mindsets of the public. Therefore, support of the social model appears largely preferable, and its apparent enshrinement within the United Nations Convention on the Rights of Persons with Disabilities is promising.

II. Defining Disability in Irish Law

5 'The Social Model of Disability' (Inclusion London, 2021) <https://www.inclusionlondon.org.uk/disability-inlondon/social-model/the-social-model-of-disability-and-the-cultural-model-of-deafness/> accessed 11 November 2021. 6 Mike Oliver, ‘Emancipatory Research: A Vehicle for Social Transformation or Policy Development’ (2002) 1st Annual Disability Research Seminar. 7 Arun Saldanha, ‘Heterotopia and Structuralism’ (2008) 40(9) Environment and Planning A: Economy and Space 40(9) 2080.

Within the last few decades, Ireland created and implemented a variety of laws intended to protect and advance the rights of disabled persons, while also combating the discriminatory treatment that they may experience within different facets of society. Despite having the same objectives, these laws define the term ‘disability’ differently. In this section, the evolution of what disability means in Irish law will be explored.

Defining Disability in Irish Law In recent years, there has been a change in how disability is considered globally. Shifting from being assessed through a predominately medical perspective, disability is now characterized by interactions between individuals and with the environment.

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In order to promote the notion that people with disabilities are equal citizens who deserve the opportunity to fully participate in economic, social, and cultural life and choice in how they live their lives, Irish lawmakers created the National Disability Authority (NDA) in 2000.

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In its National Disability Strategy, launched in 2004, the definition of the term “disability'' is not mentioned. Without a clear definition drafted by this government agency, one must resort to looking through a multitude of relevant legislation to understand its meaning within a legal context.

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Through the analysis of these laws, it is apparent that they are connected through several common, and important principles. These include equality, independence, freedom of choice, and social inclusion.

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First mentioned as a definable concept in the National Disability Authority Act of 1999, disability is labelled as “a substantial restriction in the capacity of a person to participate in economic, social or cultural life on account of an enduring physical, sensory, learning, mental health or emotional impairment,” as related to a person.

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Seen again in the Education for Persons with Special Educational Needs Act of 2004, this definition is expanded to include

8 J. Banks, et. al, 'Disability and Discrimination in Ireland: Evidence from the QNHS Equality Modules 2004, 2010, 2014' (2018) IHREC <www.esri.ie/system/files/publications/bkmnext363.pdf> accessed 17 November 2021 9 'Disability Overview' (National Disability Authority) < https://nda.ie/disability-overview/> accessed 17 November 2021; ‘Policy: National Disability Strategy’ (The Department of Justice) <www.justice.ie/en/jelr/nda%20-%20policy%20-%202.pdf/files/nda%20-%20policy%20-%202.pdf> accessed 17 November 2021. 10 'Disability Overview' (National Disability Authority) < https://nda.ie/disability-overview/> accessed 17 November 2021. 11 Disability Overview' (National Disability Authority) < https://nda.ie/disability-overview/> accessed 17 November 2021; A O’ Duffy, ‘A Guide to the Law in Ireland in Relation to Disability’ (2018) Independent Living Movement Ireland, accessed 17 November 2021. 12 National Disability Authority Act 1999 s 2(1).

“any other condition which results in a person learning differently from a person without that condition and cognate words shall be construed accordingly.”

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In 2005, with the passage of the Disability Act, the meaning of disability changed. Defined as “a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment,” it is evident that the definition of disability matches the intended purpose of the law.

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By adding categories and varying contexts in which the term applies, lawmakers emit an atmosphere of exclusivity. This portrayal of disability as only existing within rigid, singular spaces has the potential to provide the public with the false impression that instances of discrimination based on disability that occur in diverse sectors of society are mutually exclusive.

This idea is echoed in the Equality Acts, which encompass the Employment Equality Acts (1998 - 2015) and the Equal Status Acts (2000 - 2015). These acts define disability as: “(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body; (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness; (c) the malfunction, malformation or disfigurement of a part of a person’s body; (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction; or (e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.”

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This definition differs from other definitions of the term in law in terms of its specificity, in addition to the fact that it eliminates set contexts in which disability could be applicable. This version of disability accounts for chronic diseases and illnesses, which had previously not been specified, and reduces the potential for vague interpretations of its meaning by using more inclusive language.

13 Education for Persons with Special Educational Needs Act 2004 s 1(52). 14 Disability Act 2005, section 2(1). 15 'Definitions' (National Disability Authority) <https://nda.ie/disability-overview/definitions/> accessed 17 November 2021.

It is important to recognize that the definition of disability is also shaped by official government surveys, such as the census. The Census of 2011 narrows the scope of disability further and defines it as: “A person with one or more of the following long-lasting conditions or difficulties: - Blindness or a severe vision impairment - Deafness or a severe hearing impairment - An intellectual disability - A difficulty with learning, remembering, or concentrating - A difficulty with basic physical activities - A psychological or emotional condition - A difficulty with pain, breathing, or any other chronic illness or condition.”16

This definition, while seemingly more inclusive due to its narrower scope, is exclusive in the sense that it limits disability status to those who only suffer from one or more of the listed conditions in a long-lasting way. Long-lasting is not defined, which as a result, causes its meaning to be left to individual discretion. This prevents individuals who do experience those difficulties temporarily from an injury from being protected from discrimination.

Scope for Reform in Defining ‘Disability’ in Irish Law The term disability is difficult to define, as it is quite broad in nature. Over time, as the definition of disability changed and became narrower in focus, problems emerged. The lack of consistency associated with the definition and the existence of multiple definitions creates immense ambiguity about its true meaning.

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Additionally, the fluctuations of contexts in which the term disability applies and conditions that it applies to, causes certain individuals to be excluded. Furthermore, there also have been calls for the language of these laws to be reassessed and written in a more sensitive manner to eliminate stigmas associated with specific disabilities.

18 Adopting a definition drawing on the CRPD, which Ireland has ratified, could be

16 'Definitions ' (National Disability Authority) <https://nda.ie/disability-overview/definitions/> accessed 17 November 2021. 17'Legal Status of Individuals with Disabilities' (National Disability Authority) <https://nda.ie/disabilityoverview/key-policy-documents/report-of-the-commission-on-the-status-of-people-with-disabilities/a-strategyfor-equality/a-strategy-for-equality-report-of-the-commission-on-the-status-of-people-with-disabilities/legalstatus-of-people-with-disabilities/,> accessed 17 November 2021. 18 Legal Status of Individuals with Disabilities' (National Disability Authority) <https://nda.ie/disabilityoverview/key-policy-documents/report-of-the-commission-on-the-status-of-people-with-disabilities/a-strategy-