§ (Third Day)
307GC§ The Committee met at quarter past three of the clock.
§ [The Deputy Chairman of Committees (Lord Elton) in the Chair.]
§ Clause 13 [Discrimination in relation to letting of premises]:
§
Lord Skelmersdale moved Amendment No. 62:
Page 32, leave out lines 28 to 34.
§ The noble Lord said: The microphone seems to be set very loud. I shall try to stand back a little.
§ We have a lot of meaty matters to get through today covering housing, mental illness and cancer. So on this first amendment, which refers to Clause 13, I shall be extremely brief. I hasten to say also that the amendment is purely probing in nature.
§ We are concerned here with a situation where a lessee, presumably able-bodied, sub-lets to a disabled person. We must assume that the lease already allows for sub-letting, and one wonders whether the landlord or managing agent has to be informed. The latter two may well have good reasons why the premises should not be occupied by disabled people, such as, for example, the upkeep of a garden or perhaps a basement area. It seems to my noble friend and I most unfair if the landlord is not to be involved in the decision on any sub-letting.
§ As I read it, this subsection could also mean that the primary tenant could make changes to the building without the landlord's consent. This again would be totally unreasonable. I hope that I am wrong on both of these points, but in order to get a satisfactory answer, I beg to move.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Moll is of Heigham)My Lords, Amendment No. 62 concerns the duty to make adjustments where the premises concerned are to be let under a sub-lease or a contractual licence. The noble Lord has made it clear that the amendment is probing in nature, but its effect would be that where an existing tenant wants to sub- let his flat he could with impunity refuse to read out the terms of the sub-let to a blind person, even if reading them out would be a reasonable thing to do.
It would also mean that those seeking to occupy premises under a contractual licence, the usual definition 308GC of which is that someone does not have exclusive possession, would not be protected. Thus a disabled person who was proposing to live in a hostel or in a warden-assisted retirement flat would not be able to ask for a reasonable adjustment in advance. However, they could still do so once they had been granted a licence to occupy the premises. Such diminution in protection would be undesirable, as too would be the inconsistency it would introduce between the provisions relating to premises that are to let and those that have been let.
Amendment No. 79 appears to be consequential and would add additional circumstances to the list of justifications in Section 24 for failure to comply with the current duty not to treat a disabled person less favourably than others for disability-related reasons.
The "additional circumstances" deal with the situation where the terms of the proposed letting are less favourable because of additional costs incurred by the landlord as a result of the disabled person's disability. For example, it would allow a landlord to require a disabled person to pay a higher deposit than would normally be the case so as to cover the cost of reinstating the proposed alterations to the premises. Without the change to the schedule, the landlord would not be able to do this. I think we would all agree that under the circumstances it would be unreasonable. The loss of protection would be undesirable.
The noble Lord also asked about the upkeep of gardens. Whether a tenant may sub-let and to whom is a matter for the terms of the letting between the landlord and the tenant, but discrimination against a disabled person is contrary to existing Section 22 of the Disability Discrimination Act. Unless I am wrong, I expect that if it was a condition between the landlord and the head tenant to maintain the garden, if that tenant sub-lets in turn, he would continue to be responsible for ensuring that the garden was looked after. Whether that meant employing someone would have to be resolved.
Basically, however, a sub-let or a contractual let is covered in the ways I have described and the probing amendments tabled by the noble Lord would remove those protections. Indeed, we suspect that the protections would obtain even if these amendments were given effect, but the law would be rather more ambiguous.
§ Lord SkelmersdaleI am most grateful to the noble Baroness for that response as far as it goes, but I also asked whether I was correct in interpreting the new section to mean that the primary tenant could make changes to the building without the landlord's consent. I think that that is probably wrong and that the tenant cannot do so.
§ Baroness Hollis of HeighamNoble Lords will recall when we discussed housing issues towards the end of the last Session, when the point was made that the duties of adjustment are essentially those of what I would call service in nature, such as ensuring that a tenancy agreement is understandable and available in Braille and so forth, or providing such adaptations as are essential—not what we would call "fixtures and 309GC fittings" but items such as portable ramps and a vibrating or colour-coded door entry system for those who are hard of hearing. Whether that concerns a sole tenant or a head tenant, the right to make adaptations to the physical features of the house remains, as now, the absolute right of the landlord to accept or reject except in so far as the 1927 Act comes into play.
§ Lord SkelmersdaleI see the point. I am grateful to the noble Baroness. Her response has certainly answered both of my questions. I have great pleasure in seeking to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 63 not moved.]
§ Baroness Darcy de Knaythmoved Amendment No. 64:
§
Page 33, line 6, at end insert—
"24HA DISCRIMINATION IN RELATION TO ASSOCIATED PREMISES
24HB ASSOCIATED PREMISES: EXCEPTIONS TO SECTION 24HA(1)
used for the purpose of managing the associated premises the services of a person who, by profession or trade, manages such premises.
24HC ASSOCIATED PREMISES: DUTIES FOR PURPOSES OF SECTION 24HA(2)
and (in either case) the conditions specified in subsection (4) are satisfied.
24HD ASSOCIATED PREMISES: VICTIMISATION OF PERSONS TO WHOM PREMISES ASSOCIATED WITH ASSOCIATED PREMISES ARE LET
24HE DEFINITION OF "ASSOCIATED PREMISES" AND "PREMISES ASSOCIATED WITH ASSOCIATED PREMISES"
and shall further include any other land, beyond the confines of the building, which the disabled occupier is entitled to use (including paths and steps, communal gardens, courtyards and car parking areas) and which adjoin the building or are designed or intended to be used by residents of the building.
§ The noble Baroness said: We come to a particularly thorny question that is as vital to resolve as it is difficult; that is, the question of communal areas. I should say that I hope to be rather briefer in my speech than the length of the amendment. I thank in advance the noble Lord, Lord Skelsmerdale, who gave his rather premature support to this proposal when we were discussing Amendment No. 61, because the amendments had been degrouped.
§ Amendment No. 64 would place landlords and management companies under a duty not to refuse consent unreasonably if a disabled tenant needed to make an alteration to communal areas so as to enjoy the fundamental right of access to their property. As with Amendment No. 61, tabled by the noble Baroness, Lady Wilkins, I should emphasise that nothing in this amendment would require landlords themselves to pay for such alterations and the new 313GC provisions would be subject to statutory guidance on reasonableness, with the DRC empowered to assist disabled people with a grievance.
§ At present, disabled tenants and leaseholders are totally without rights in respect of adaptations to communal areas or the external parts of a building. In many cases, disabled occupiers need alterations to the exterior parts of the building, such as the installation of a grab-rail or alterations to the approach, such as the installation of a ramp or additional lighting, so as to be able to access their homes. Such areas do not constitute part of the "dwelling-house" leased to them and thus not even the Landlord and Tenant Act 1927 will apply. If the landlord refuses consent, disabled people have no legal redress whatever.
§ Similarly, owners of private flats who have not been permitted to make essential alterations to the areas of a building outside their occupation owned by a freeholder, over which they have a right of access, have no rights under existing law. The DRC has been inundated with inquiries and pleas for help from people desperate to get to and through their front door in safety, and in some cases are trapped in their homes. The DRC has said that as things stand, it has no power to intervene.
§ A key recommendation of the Joint Committee on the draft Bill was to create a specific provision preventing property managers from unreasonably refusing consent for necessary adaptations to common parts. This amendment fulfils that recommendation.
§ I realise that Amendment No. 64 represents a radical break with current land law, albeit limited to the area of disability access. It has been prepared by a leading housing QC and demonstrates that it is possible to devise a fair and workable way of addressing the legitimate rights of disabled people to get into their homes while safeguarding the legitimate interests of property managers and others with an interest in the property. For instance, they could impose conditions such as all necessary work being completed at the disabled person's expense. Furthermore, all necessary work to reinstate the premises to its original form when the disabled person leaves could be at his or her expense as well.
§ The amendment also recognises that a wide range of interests may be involved in the making of an improvement or adaptation to an area outside the disabled person's home. Property managers may refer to the interests of neighbouring tenants or leaseholders in determining whether to grant consent.
§
I acknowledge the support given by the noble Lord, Lord Rooker, and the housing Minister in the other place, Keith Hill, whom my noble friend Lady Wilkins and I met during the passage of the recent Housing Act. I acknowledge their support for the principle that legislation is required to close the gap in the DDA. Indeed, the noble Lord, Lord Rooker, stated on Third Reading of the Housing Bill:
we will do what we can to ensure that legislation is not unduly delayed".—[Official Report, 3/11/04; col. 370.]
314GC
I would say that that showed a pretty firm intent to find a way to resolve the problem and I suggest that the time is now. We may not have another chance for a long time. I hope that the Minister agrees.
§ I say at once that I do not expect the Government to agree to the detail of my amendment, especially as I agree that formal consultation is needed before specifics are set in stone. I strongly urge that the Government bring forward their own amendment on Report, creating a power to bring forward provisions on adaptations of communal areas following consultation. Those provisions should be subject to the affirmative resolution procedure, to ensure that we have the opportunity to scrutinise them again.
§ I am concerned that there may not be another legislative opportunity to address the matter for some time. Disabled people cannot wait indefinitely for basic rights that everyone else takes for granted, which may have a huge impact on many aspects of their lives. The longer we leave the issue on the back burner, the more disabled people will have to turn down job opportunities because there is nowhere accessible to live; the more they will suffer stress, anxiety and deteriorating health as their requests for adaptations prove abortive; and the fewer people will be able to be discharged from hospital and return to live in their community, because they cannot get something as simple as a ramp up to their front door. I hope that the Minister can give an encouraging response. I beg to move.
§ Lord Morris of Manchester:I congratulate the noble Baroness—who is, of course, in truth also my noble friend—on her speech moving this important amendment. Her case is strong and she spoke with all her customary care and clarity.
Before commenting in detail on the amendment, I make one observation. Inevitably, there is pressure to extend and strengthen the Bill, which comes from its most committed supporters. They are the most anxious to ensure that whatever can be done to improve the measure is done without delaying its enactment. The amendment comes from one of the Bill's most committed supporters and I am sure that my noble friend Lady Hollis will have that in mind when she replies to the debate.
The issue addressed by the amendment was not considered by the task force, but it follows exactly the recommendation of the Joint Committee on the Bill. What is proposed is designed to demonstrate that workable provisions could be written into the DDA but, if that is unacceptable to the Government, I hope that they will at least consider taking a reserve power to tackle the issue by means of regulation, once there has been full consultation with stakeholders.
Currently, the right to make alterations in many leases will be confined to the actual premises leased. That does not assist the disabled tenant confronted by physical barriers in the approach to a property where that is not included in the lease. Indeed, a totally accessible flat may be of little use to a person who needs to but cannot negotiate even a short flight of steps to enter it. That person, as the noble Baroness, 315GC Lady Darcy de Nayth, said, has no right under current land law or housing law to resist unreasonable refusal of consent. Nor do owners of private flats who have not been permitted to make alteration to the areas of a building outside their occupation, owned by a freeholder, over which they have a right of access.
These gaps need to be dealt with to relieve hardship among the often desperate people living with such problems. As the noble Baroness, Lady Darcy de Nayth, said, the Government appear to agree with this in principle. I hope that my noble friend Lady Hollis may be able to go further than the encouraging words of my noble friend Lord Rooker. She will know that the DRC attaches considerable importance to an early resolution of the problem, and I am sure that she will respond as helpfully as she can.
§ 3.30 p.m.
Lord CarterAs has already been pointed out, this was a recommendation of the Joint Select Committee. We said that,
the Committee recommends that the full bill includes a specific provision prohibiting controllers of premises from unreasonably"—I emphasise unreasonably—withholding consent to the making of reasonable adjustments to communal areas".The Government's response seemed to be in two parts. The first segment said:We are not convinced that tenants should be able to make adjustments to common parts over which they have only limited rights or that a controller of premises should be required to allow a tenant to make changes to common parts. That seems to be like an objection in principle. They went on to say:We believe that seeking to cover common or communal parts of premises in this way would pose quite severe problems on which we have not consulted and which involve complex interactions between a range of people with legal responsibilities and rights in connection with common parts"—which implies that it is all too difficult. So, when my noble friend replies, it would be helpful if she could say whether the Government are opposed to the issue in principle or whether the difficulty is at the heart of their objection—if indeed they have objections.We should look at this issue in conjunction with the length of the discussion in the previous Committee that we had on the rights of disabled tenants in their own homes to have alterations made—consent for which should not be unreasonably withheld. Is not one possible approach to getting the rights of tenants in the Bill perhaps to incorporate the appropriate parts of the famous LTA—Landlord and Tenant Act 1927—into it in some way, so that the rights are there, and to give the DRC some role in it, which would be extremely important?
Finally, we have to deal with the point that the Minister made about the cost of reinstatement. The route we suggested in the previous Grand Committee sitting was perhaps to use part of the disabilities facilities grant, which is at the discretion of the local authorities, for reinstatement costs. I do not think that the costs would be great because in most cases the 316GC tenant would be able to afford the reinstatement. The Minister, to be fair, listed those cases where the estate was not big enough. I cannot believe that the global costs would be that great if we were able to use the facilities grant for reinstatement purposes. So perhaps some combination of the rights of the tenant, the role of the DRC and the reinstatement grant is the way to effect this.
§ Baroness WilkinsAs I also have my name to the amendment, perhaps I may briefly stress how important it is that we find a solution to this gap in the law.
The Committee will be only too aware of the lack of accessible housing in this country. Anyone who has had the experience of trying to find somewhere to live where they can manage in a wheelchair will know the utter misery and frustration that that entails. Literally hundreds of properties can be viewed before a suitable property is found. But then to be in a position where you have found an accessible property only to be prevented living there because the property owner refuses to alter removable barriers in the communal area is intolerable.
As the Minister pointed out on the previous Grand Committee sitting, at col. GC184 of the Official Report, it is going to take a very long time for building regulations to improve the accessibility of our public and private sector housing stock. In the mean time, we must be able to remove the barriers from the housing stock we do have, where it is reasonable to do so. That is what the amendment asks for—that officials urgently begin to draw up proposals for consultation and that power is taken in this Bill to make regulations to deal with this matter.
I hope that my noble friend will find a way to give us an encouraging response.
§ Lord AddingtonAs my name appears as tail-end Charlie on this amendment, it might be appropriate if I made a few comments now. It would have been more logical if this amendment had appeared where Amendment No. 61 appears and that amendment was here because if one cannot get into a property then Amendment No. 61 will not make a lot of difference. That is where we should start. If we want people to live independent lives, as apparently we do, it is very important to look at this in the round. Of everything that has been done not just by this Government but during the past 30 or 40 years to try to allow disabled people to live independent lives, allowing them access to their own homes has always been the first step.
When the noble Baroness moved the amendment she was unduly pessimistic about how good it is. Even if this reasonable approach cannot be embraced at this time, the Government should do something about the issue. When will be the next opportunity? The Housing Bill was not an opportunity. This Bill may not be one. So, the next opportunity may be 10 or 20 years down the road. Every time that we miss a chance to pick this up, we are placing someone who has movement difficulties in a situation where they have to take a chance on whether they will be able to get 317GC accommodation. They will not have the right to it, where it can be done without serious inconvenience. There is a great defence of reason in this. Unless we can give disabled people that right, we are restricting their choice of where they can live for various parts of their life. If the wording of the amendment is not accepted, I hope that its principle will be. I hope that we shall hear how the Government are going to implement this.
§ Lord Ashley of StokeI shall speak briefly on this issue, which we have discussed at great length in this Committee. Whether we are Ministers or non- Ministers, we are all facing a dilemma. I am sure that we understand the problems of the Minister. There is no doubt that she has limited room for manoeuvre. We want to press these amendments as strongly as we can because we feel deeply about them. As the noble Lord, Lord Addington, said, this is a profoundly important amendment and far stronger than it appears to be at first sight.
How do we resolve this dilemma? We know that if we press this amendment, and other amendments, to a vote in the Chamber, they will go back to the House of Commons and then back to us, with all the damaging and dangerous delay. How do we resolve this? Without going over the details of the amendment, explained so eloquently by my noble friend Lady Darcy de Nayth, the best way to do so is to recognise that although it represents a radical break with land law, and so it does, it is not a major amendment in terms of cost, difficulty or properness. In fact, it is a minor amendment. Although it is so detailed that it covers a dozen pages in the Marshalled List and is of major importance, it is not of major importance in Government legislative terms or in terms of cost. If this point is taken by the Minister, it will avoid us voting on the amendment in the Chamber. If she is able to accept the amendment with good grace, and I am sure that she will if she can, then we can amicably resolve the difficult problem of where we go on it.
I shall say one more thing. I agree with my noble friend Lady Darcy de Nayth that not all the detail of the amendment may be acceptable to the Government. Let them bring forward their own amendment on Report and we will deal with it as sympathetically as we can.
§ The Earl of ListowelI rise to speak briefly and declare my interest as a landlord. I wish to raise a particular concern about the 18,000 individuals who have attempted to make necessary changes to their residence because they have a disability but have been unable to do so because their landlord has refused consent.
I am reminded of when I went with a health visitor to visit a family in a bed and breakfast in Newham several years ago. The mother was on a pair of sticks and had three children: an infant, a six year-old and a 10 year-old. The six year-old had difficulty sleeping and was bedwetting. There were no facilities in the accommodation. She could not even heat milk for the infant and had to breastfeed. Therefore, if I remember 318GC correctly, she could not take her medication. Everything was against that family and against that mother's ability to care for her child.
My concern is that among those 18,000 individuals with a disability are parents with young children who have been impaired in their ability to care for those children because they have been unable to have necessary and reasonable alterations made to their accommodation. Therefore, I support the amendment.
As a landlord, I need to be reassured that the proposal would not put an unfair burden on landlords. I have not talked over the matter with a lawyer, but it seems to me that the interests of landlords are protected. I am also pleased with the, in many ways, very sympathetic response of the Government to this suggestion. I look forward to the Minister's response.
§ Lord SkelmersdaleWas it not Edward VIII, as Prince of Wales, who said down in South Wales, "Something must be done"? Something clearly must be done in this area.
I congratulate the noble Baroness, Lady Darcy de Knayth, on her introduction to this long and complicated amendment. It is clear that many of the issues discussed in relation to Amendment No. 61 also read across to Amendment No. 64. As such, I do not wish to dwell on points that have already been made, except to say on "the small niggle" that where there is a will, as there clearly is in the Committee although not in government, there is a way.
Like the noble Lord, Lord Morris, I understand that the test of "reasonableness" does not apply to the communal areas of old or current buildings. This is an issue that, indeed, needs to be addressed to ensure the social well-being of those who are disabled. However, I have a few ideas on this amendment that I should like to thrash out with the Committee.
I note, of course, that the noble Baroness, Lady Darcy de Knayth, said that her amendment was not perfect, and so I have several questions. When she said that it was not perfect, I do not think that that was unduly pessimistic and so I am afraid that I disagree there with the noble Lord, Lord Addington.
First, does the amendment allow for a situation involving a share of a freehold? If the landlord owned a share of the freehold in a block of flats, in order to allow any adjustments to the areas in question he would also have to obtain the approval of all the other members who shared the freehold. In the case of a disabled person, would the onus fall on him to persuade all the other freehold owners or their landlord? How would the amendment work if one member of a freehold "unreasonably" withheld consent?
Secondly, I want to ask the noble Baroness about listed buildings. These often create problems in terms of planning permission and the alterations that may not be allowed to external access and communal areas due to the listed status of the building. Can the noble Baroness inform me whether the fact that a building was listed would be considered a reasonable reason for rejecting a request to alter the communal areas? If the 319GC adaptations are made and, as the noble Baroness explained, the reinstatement of the original premises occurs once the disabled person has moved on—again, assuming that funds are available to do so—what sort of costs are we considering to restore the building to listed requirements? In fact, as I do not have a Survey of English Housing with me, can any Member of the Committee—perhaps the Minister—inform me how many of the reported 18,000 disabled people living in unsuitable accommodation are in listed buildings?
Having dealt with old buildings, I now turn to those that are new or currently under construction. In the 1980s, more senior Ministers and I spent years of our lives trying to bring about reasonable access for disabled people to new buildings. It was, as Members of the Committee will judge, no credit to me that Part M came into existence after I left both the DoE and the DSS.
I understand that it was not until October 1999 that Part M of the building regulations were altered such that,
reasonable provision shall be made for disabled people to gain access to and use the building".Those regulations required builders to construct new housing to standards that would permit disabled people—particularly those who were wheelchair- bound or had other mobility problems—to visit the ground floor of a new house and use the facilities. The regulations would surely go some way to meeting the correct adaptation of external and communal areas in all new build for those with disabilities.3.45 p.m.
However, the Joseph Rowntree Foundation published a report in August 2003 that stated that many builders and building control officers did not understand Part M, with the result that it was variably and inconsistently interpreted across the country. In response to a Question raised by the noble Lord, Lord Best, on the matter, the noble Lord, Lord Rooker, announced on 25 October 2003 that there would be a review of the operation of Part M which they expected to start before that Christmas and to take two years. That was followed by an ODPM press release on 10 March 2004 stating that the proposed review of Part M was still "forthcoming".
I am led to believe that now, two years on from 2003—indeed, nearly the time when the review would have been ending if it had started when it was meant to—it will only be starting in April 2005 and will still take two years. There is a lot of disappointment over the lack of progress with respect to Part M, which some would have said is a sad indication of the lack of seriousness that the Government attach to the barrier of access to housing for disabled people.
Can the Minister inform the Committee of the start date of the long-promised review? Surely the failure to address that is only compounding the problem of adaptations needed to the communal and external 320GC parts of buildings which we are discussing today. As the Minister said on Monday, access to common parts is,
one of the toughest areas that we seek to engage with in the Bill".— [Official Report, 17/1/05; col. GC183],Every Member of the Committee, with the sole exception of the Minister, is trying to get progress in this area. I hope that she will be a lot more positive today, even though I do not believe that this amendment is the way forward.
§ Baroness Hollis of HeighamIt has been a very interesting debate on a very important and very difficult topic. In our debate on Amendment No. 61 we set out and discussed the problems of housing legacy, to which the noble Lord referred towards the end of his speech. I shall not repeat those comments, except to say that we are well aware of the issues.
In reply to the noble Earl, Lord Listowel, we know that 16,000 to 18,000 tenants are living in the private- rented sector in accommodation that is unsuitable for them. What we do not know is how many of them have sought permission and in what cases it has been refused. I expect that it may well be a large number, but we do not know.
A key issue is to ensure that disabled people have access to the most appropriate elements of our housing stock. I do not think, in this respect, that we should underestimate how much local housing authorities can and already do. I was briefed on one local authority where a tenant who needs oxygen 24 hours a day had been reduced to sleeping in her living room as she could no longer manage the stairs. She and her carer have now moved to a bungalow. Another person in owner- occupied accommodation who has terminal cancer was moved very quickly to local authority housing which was also nearer her son so that he could offer care and support. Those cases are not particularly about common premises; but they are local authority cases from South Tyneside which demonstrate how a local authority that is exercising good practice can and does respond quickly and appropriately to these needs.
Once a need is identified, an assessment is undertaken using—as your Lordships will know, as many of us have this sort of experience—a qualified occupational therapist to assess the situation. Adaptations may then be made. The authority will then maintain a record of such property. Local authorities are developing increasingly sensitive ways of making these types of transfer quickly and effectively. Such intervention can do much to ensure that disabled people have access to suitable accommodation whereas accommodation in the private-rented sector, or even an owner-occupied house, could not easily be made fit. As I recall, under buy-to-let, accommodation that had been extensively adapted was excluded from the right to buy so that we could ensure that it remained accessible to future generations of disabled tenants.
In addition, I understand that the National Housing Federation is launching a good practice guide covering principles and key actions, intended to bring disability issues and access to housing into the mainstream of 321GC housing association thinking, with examples of how, with good practice, we can overcome all sorts of physical barriers to ensure ready access. However, it is true that the consent of the landlord and, perhaps, of other parties, as the noble Lord, Lord Skelmersdale, identified, will be required for those adaptations to occur, and Amendment No. 64 is intended to ensure that landlords cannot unreasonably refuse consent to alterations to common parts of premises.
I do not think that there is anything between us on the difficulties associated with inaccessible common areas. As my noble friend Lord Morris said, there is little point in having a fully accessible flat if you cannot get up or down the stairs at the end of the hall. We all accept that. However, disabled people are not entirely without redress: the Bill will require some reasonable adjustments to be made to common parts. Although those tend not to cover alterations to physical features, they may help some tenants with access difficulties. For example, where reasonable, a landlord may have to install a portable ramp or allow a wheelchair to be left in common parts, even though other tenants would never be allowed to store other things such as a pram or bicycle there.
However, we must be careful and measured in other, further legislative steps that we take in this area. The noble Lord, Lord Skelmersdale, was right: property law is complex, particularly so when it comes to common parts of rented premises over which ownership and rights do not take a single form. Even now, a block of local authority flats with three floors with three flats apiece may include tenants who have bought their flats, some flats that have been already adapted that can never be sold, some under shared equity and some tenants who continue to rent. They may all have a different relationship to the primary leaseholder, who remains the local authority, which affects the nature of the consent that may need to be sought.
In my experience many years ago of installing a stair climber in a local authority block of flats—this was before the right to buy, so it was not complicated by mixed ownership—other tenants were very unhappy about it, partly because it narrowed the stairway. A child got its fingers trapped in it and it invited vandalism. The tenants tried to raise a petition to have it removed. We ended up offering the tenant alternative accommodation that was, in any case, far more suitable. Being a local authority, we had the size of stock to make that offer and resolve those problems. The tenants were not being unrealistic because the flats were fairly near a public house and people thought that it was a great joke to come and go up and down on the stair climber and fiddle with it. As I said, there are difficulties here that we should not underestimate.
The Disability Rights Task Force made no proposals about common parts of rented premises. Because of that, that was not part of the Government's response in Towards Inclusion, and therefore not part of our manifesto commitment to legislate. That means 322GC that common parts have not been part of detailed thinking to meet the manifesto commitment through the Bill. That does not mean that there is not a real problem here; it does not mean that it should not be addressed; but it means that we now start from some way behind the starting line in comparison with some of the other issues that we are debating under the Bill, such as that of being "clinically well-recognised", where we are far further down the line.
Those issues were debated in the House during the passage of last Session's Housing Bill. My noble friend Lord Rooker said that the Government accepted that there is a problem here and that we would work with the Disability Rights Commission to explore possible solutions. However, as he said—although it is important that we view his remarks in context, because he was certainly sympathetic to the problem:
We do not expect consideration of the issues raised by this amendment"—on common parts—to be completed in time either for this Bill"—that is, the Housing Bill—or the disability discrimination Bill".—[Official Report, 20/10/04; col. 868.]He went on to say that our priority was to get the Bill through, rather than to include new issues. So, because it would involve discussion with other departments, it would be unwise to support the amendments, and we cannot do so at present.However, I understand the arguments that if we do not do it now, when will we get the opportunity, that this is a one and only opportunity, and so on. I understand people feeling that if we could only tag something on to the Bill, we might be able to address the issue. That is to be unduly pessimistic, given the record of the present Government. I remind your Lordships that since 1997 the DRC Act and the Special Educational Needs and Disability Act have been passed. Last year, there were the DDA amendment regulations, which were bigger than many aspects of the Bill, and there is the current Bill. So we have had legislation or quasi-legislation approximately every two years under this Government.
§ Lord SkelmersdaleIs there any power under the Act, as twice amended after the passage of this Bill, to achieve through regulations the objective that all Members of the Committee seek?
§ Baroness Hollis of HeighamThere is no power under regulations. There might be very real queries about delegated powers and the rest on this. We would not normally seek regulations where we do not know their intent or how they might be used in practice. We are too far back to take a regulatory power at this stage.
§ Lord SkelmersdaleI was not suggesting that. I was just asking a simple question, which was prompted by the noble Lord, Lord Carter.
§ Baroness Hollis of HeighamI was explaining why the Bill does not have the power. This has not come out of the blue. Whether we can meet the objectives of the amendment by having a path through regulations that must be deployed at a later stage is one of the things that has been discussed and pursued. We do not have that power and we are not proposing to take it, primarily because we do not know how it would be used and therefore under what terms it could be drafted.
I am afraid that I cannot give any comfort on this amendment and, as the noble Baroness will know, the 1927 Act does not apply to common parts. The problems are not that we do not recognise the issues or identify with them. The problem is that, over and beyond the issues of cost, complexity and the like, there is the additional issue that involves complicated relationships with other residents, whether tenants or owners—particularly in blocks of flats, where the problem is most likely to occur—and which produces very complicated questions of law. I am afraid that, at the moment, we are not in a position to give any encouragement on this front.
The noble Lord, Lord Skelmersdale, asked me about the Part M review. Following public consultation in 2002, Part M was amended to extend the scope to existing non-domestic buildings undergoing extension and to certain changes of use or material alteration. The amended Part M was approved in 2003. In March 2004, Ministers announced a further review of Part M to examine the feasibility of incorporating lifetime home standards into new housing. I do not know when the review will conclude, but I shall pass the noble Lord's concern on to the Office of the Deputy Prime Minister. I may be able to give the noble Lord further information when we, no doubt, revisit this issue on Report.
I am afraid that those remarks do not take the noble Baroness's aspirations much further. I cannot suggest that I can, but I hope that she will recognise that we accept that there is an issue here. This is a matter not just for my department but for the interface with other departments. Currently, reviews are going on and it may be that when we revisit these issues, as I am sure we will continue to do, we will be able to come back in the future.
§ Lord Oakeshott of Seagrove BayI have a question of fact for the Minister. Following the undertaking and acceptance of the problem by the noble Lord, Lord Rooker, that we have heard about, what work has taken place so far in her department and the other relevant departments—and perhaps she could tell us which they are—to take that forward and to explore the practical difficulties. She has told the Committee a lot about the difficulties? How are the Government getting on with dealing with them and what is the programme of work that is going forward?
§ Baroness Hollis of HeighamCan the noble Lord tell me when he thinks that the noble Lord, Lord Rooker, made that comment? The quotations from the noble Lord were from November, which was a month ago. 324GC He could hardly expect there to be identifiable progress that could be reported to the Committee at this stage. It was only six weeks or so ago.
§ Lord SkelmersdaleOne month? I make today 20 January. It was a pretty firm commitment. Has any action taken place at all?
§ Baroness Hollis of HeighamI cannot answer for what the noble Lord, Lord Rooker, may or may not have pursued with his colleagues in the Office of the Deputy Prime Minister.
§ Lord Oakeshott of Seagrove BayThen can the Minister tell me which are the relevant departments? When we are talking about different ministries, it is all terribly complicated. Which is the lead department in this matter and what other departments will need to work on it?
§ 4 p.m.
§ Baroness Hollis of HeighamThe department primarily responsible for housing legislation is obviously the ODPM. We have had some discussions with that department, mainly in the context of this Bill. I cannot tell the noble Lord how far advanced the department's thinking is on this matter any more than on, say, the disability facilities grant, which is another issue on which it is working. Primarily due to perfectly proper pressure from your Lordships during the passage of the Housing Bill, my noble friends Lord Rooker and Lord Bassam took away a number of issues concerning housing for disabled people and they are taking those further. So housing issues are obviously a matter for the ODPM.
I suspect that property law issues will be a matter for the DCA because what was the Lord Chancellor's Department dealt with issues such as commonhold and so on. Disability issues would rest with my department but in my experience, with regard to occupational therapists and so on, a degree of responsibility also lies with the Department of Health. That department supervises the organisation of the social services, which may need to monitor this issue. So a number of departments are involved.
§ Lord Oakeshott of Seagrove BayI thank the Minister. We can see how complicated this matter is. With four or five departments being involved, it is clear that nothing will happen unless someone is in charge of putting everything together and making it go forward. That is the only point that I want to leave with the Committee.
§ Baroness Darcy de KnaythI thank the Minister for her careful reply. I am disappointed but perhaps I may refer to other noble Lords first and thank everyone who voiced their support from all sides of the Committee. I thank the noble Lord, Lord Morris, for his strong support, the noble Lord, Lord Carter, for his helpful suggestions, and my noble friend Lady Wilkins, who has great experience in the disability housing field.
325GC I also thank the noble Lord, Lord Addington, who said that we should start with this amendment because it is the crux of the matter. He, not quite as tail-end Charlie, spoke with his usual practical common sense. I hope he was right that I am being unduly pessimistic. The noble Lord, Lord Ashley, also gave great support. He said that the amendment was of major importance but would not be very expensive to put into practice— most of the expense would be borne by the tenants— and it would have a huge impact on the lives of disabled people. I think that the Minister answered the point raised by the noble Earl, Lord Listowel, concerning the 18,000 disabled people. That was more relevant to the amendment of my noble friend Lady Wilkins, as it concerned people who want to adapt the inside of their own houses and flats.
I thank the noble Lord, Lord Skelmersdale, for his questions. I also thank him for giving me notice of them or I would never have been able to answer them. The amendment does refer to a situation involving a share of the freehold. If a landlord owned a share of the freehold in a block of flats and any adjustments were to be made to the communal areas, he would have to obtain the approval of the other members of the freehold.
The noble Lord also asked whether the onus would fall on a disabled person to persuade all the other freeholders to agree to the work being carried out. I think that, as under the Commonhold and Leasehold Reform Act when a leaseholder tries to persuade other leaseholders to buy, the disabled person in this case would obviously, in a spirit of friendship and encouragement, go round to ask the other tenants, but the decision would rest with the landlord.
The noble Lord, Lord Skelmersdale, also asked how the amendment would work if one member of a freehold unreasonably withheld consent. It would depend on the reasonableness or otherwise. If the withholding of consent was unreasonable, I would hope that the landlord would take a vigorous part in the discussions and try to persuade the member in question. That is my view but it is not informed advice.
I am told by the DRC that if the fact that a building was listed was the sole reason given for refusing consent to alterations, that would not be judged to be reasonable, but it would depend on other things as well. The noble Lord asked how much it would cost to reinstate such a building. The answer is: how long is a piece of historic string? He also asked how many of the reported 18,000 disabled people living in unsuitable accommodation were in listed buildings. I think that the answer is probably none. They are all in fairly grotty upstairs flats that they cannot get in and out of because you cannot alter your own flat. I very much doubt whether any would be in a historic building, but perhaps they are. The noble Lord seems to know different.
§ Lord SkelmersdaleMaybe the noble Baroness does not appreciate that there are many buildings of varying qualities and standards up and down the country 326GC which come under the listing rules. Perhaps outside the Committee I can give her a small lecture because I was a "listing" Minister on one occasion.
§ Lord Ashley of StokeDespite what the Minister has just saidßžand it was a fairly pessimistic responseis there any possibility that the Government will accede to the requests of the noble Baroness, Lady Darcy de Nayth, and table amendments on Report? Whatever the noble Baroness can give us on this issue will be very warmly appreciated.
§ Baroness Hollis of HeighamI had hoped that I had made my position clear. Given how relatively late in the day the issue emerged into the debate, and that it involves a primary responsibility with another government department and so on, I cannot possibly give my noble friend any comfort that the Government will return with something on the Bill.
§ Baroness Darcy de KnaythI thank also the noble Lord, Lord Oakeshott, for his intervention. The date actually was 3 November, so we have had from 3 November until 20 January. Anyway, that is by the by.
Perhaps I could turn to what the Minister said. I shall it read carefully, but I think that I have the gist of what she is saying. I hope that she will reconsider the idea of putting power to make regulations in the Bill because I feel that it is desperately important.
I should also like to say in response to the question of the noble Lord, Lord Oakeshott, that discussions have been going on, as I understand it, with the DRC—and certainly with the ODPM—without a lot of progress. Will the Minister leave the door open to discuss the matter further? I totally appreciate that we cannot put the amendment in at the moment. Will she consider amending the Bill in order to make a regulating power? The DRC says that people are really desperate. It receives a huge number of calls on the matter. It would make such a difference to them. Will she just give me a chink of light before I withdraw the amendment?
§ Baroness Hollis of HeighamI am just repeating myself. I cannot give any such chink of light at the moment. I am perfectly happy to follow the proceedings today with discussions with my colleagues in ODPM to see where their work has reached on the subject; in other words, on an information basis, to see where they have got to. That is about all I can promise to do at this stage. I am not making any suggestion at all that either an amendment, a regulatory power or anything else on the Bill will be coming out from the Government's side.
§ Baroness Darcy de KnaythI appreciate totally that the Minister cannot give that commitment today, but I am grateful that she will discuss the matter with her officials and the ODPM officials. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
327GC
§
Lord Skelmersdale moved Amendment No. 65:
Page 34, line 16, after "concerned" insert "has no-one who acts with his power of attorney and
§ The noble Lord said: This is a small point but, in many people's lives, an important one. The Disability Discrimination Act quite rightly covers not only physical disabilities but also mental disabilities. I am concerned here particularly with the latter. It is not unusual for people with this sort of disability, especially when it is severe, to give someone—maybe a family member, maybe a solicitor—a power of attorney over their activities. New Clause 24K covers situations where it is justifiable for a person not to comply with the duty not to discriminate against a disabled person under new Clauses 24A(2) and 24G(2); namely, those imposed on him by disabled people as far as housing is concerned.
§
One of the justifications for that is to be found in Clause 24K(2)(b), on page 34—
that the disabled person… is incapable of entering into an… agreement, or of giving informed consent".
§ As far as it goes, that is perfectly reasonable and perfectly acceptable. That is clearly so. However, as I said, it could well be that someone else is empowered to act for him.
§ I believe that the Bill should cover that eventuality. It would be reasonable for someone with responsibility for someone else to enter into such an agreement on behalf of the disabled person if he believed that the disabled person could cope with the letting. Only if the person with power of attorney could not give such an assurance would the justification stand. I beg to move.
§ Baroness Hollis of HeighamI hope that I can be very brief. Clause 13 inserts new Sections 24A to 24L into Part 3 of the DDA and imposes a duty to make reasonable adjustments to let premises. The landlord or manager of rented premises can justify a failure to make a reasonable adjustment if specified conditions are met. Those conditions include, as the noble Lord said, where the landlord or manager of rented premises believes that the disabled person is incapable of entering into an enforceable agreement and it is reasonable for the landlord to hold that opinion.
It has always been our intention to make regulations disapply in this defence where a disabled person acts with a power of attorney. The consultation document on usage of the Bill's regulatory powers that we issued in December makes the intention clear. Paragraph 3.38, on page 32, states:
As explained in paragraph 3.22 a controller of premises can justify failing to make a reasonable adjustment only if one of two conditions applies. One of the conditions is that a disabled person is incapable of entering into an enforceable agreement, or of giving informed consent".Paragraph 3.40 states that the controller,will not be able to use this justification where a disabled person is acting through another person by virtue of: A power of attorney; Functions conferred by or under Part VII of the Mental Health Act 1983; or Powers exercisable in Scotland in relation to the disabled person's property or affairs in consequence of the appointment under the law of Scotland of a guardian or judicial factor".328GC I think the regulations make it very clear that we have taken powers to meet entirely the issue identified by the noble Lord, Lord Skelmersdale.
§ Lord SkelmersdaleI think that I am grateful to the noble Baroness. In a past existence she was a distinguished academic. I recognise when distinguished academics tell me that I have not done my homework properly. I take the point absolutely. I am grateful to her for the spirit in which she received the last remark of mine. On that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§
Lord Skelmersdale moved Amendment No. 66:
Page 35, line 21, at end insert
"24M ACCESSIBLE HOUSING REGISTERS FOR THE DISABLED
§ The noble Lord said: At various points in the three Sittings we have already had in Committee I have referred to a later amendment on registers of housing access. Come to think of it, I started to do it on Second Reading. What I did not know at that time is that they already exist in Bradford, Reading, Liverpool, Edinburgh and Glasgow. What those boroughs have in common is that they have a computer programme of existing accessible housing and any planned future developments including easy adaptations, on which we have spent so much time this afternoon. The register records the specific access features for each dwelling. It is clear that accessible housing registers mean that the scarce resource of suitable housing is used more efficiently. However, I do not believe that, without a push from the Government through legislation, such registers would extend as widely as they should.
§ I believe that Ministers in the ODPM and in the noble Baroness's department recognise that. However, the noble Baroness has said—I cannot find the reference—that this Bill is not the place for it. But this is the only Bill we have during this Session where it would be appropriate. I hope the Minister will explain why she made that remark.
§ 4.15 p.m.
§ I am well aware that governments are cautious about putting duties on local authorities, especially when the taxpayer in the shape of the dead hand of the 329GC Treasury is not prepared to pay for them. However, Reading Borough Council, with whom I have been in touch through the John Grooms Housing Association, has found that such registers actually save money. The local authorities I have mentioned estimate that since introducing such registers, they have saved between £200,000 and £800,000. This comes from not removing adaptations in void properties and reduced delays in discharge from hospitals and institutions, including their own.
§ There are a couple of myths around the issue of registers and their ability to provide a service matching tenant to dwelling. Choice is not restricted as people are not frogmarched into accepting the first property they are offered. What the register does is to allow a disabled person to exercise a wider choice among the options available, perhaps moving to an area closer to family and friends, shops and so forth, rather than having to choose the least worst option for their needs.
§ Without a clear duty on local authorities to inform disabled people about suitable housing options, disabled people's choice is by definition restricted. So existing choice-based systems can mitigate against empowerment for disabled people. Another advantage of such registers is that they can develop a more realistic knowledge of the housing needs of the area and, even more important, the unmet need among disabled people.
§ I have just mentioned Reading Borough Council. It has found that all I have mentioned is fact. From its first stumbling steps, the council is about to move on to the mark two version of its housing register, a next-generation scheme which I am told will be a multi-borough approach. The Ability Housing Association, which runs the scheme, is in negotiation with around 20 authorities interested in such a scheme. Initially that was slightly disappointing as the private rented sector was reluctant to come in. However, Ability Housing has set up a working partnership with a local estate called Mobility Friendly Homes which specialises in adapted dwellings in the private sector. Inquiries are passed from one organisation to the other, depending on what the applicant wants. That is a fledging but seemingly good combination that is filling a gap in the market.
§ What I have described is an excellent idea that has been taken forward by a responsible local authority. What is needed now is a push from the Government to iron out some of the wrinkles. I hope that the noble Baroness will go some way towards applauding it today. I beg to move.
Lord CarterThis was a recommendation of the Joint Committee. We asked the Government not to amend the Bill, but to consider whether the full Bill would be an appropriate vehicle for introducing a register. We stated:
If the Bill is not found to be appropriate, the Government should consider how best to introduce such a register.The Government responded by stating:We do not agree that this Bill would be a suitable vehicle for introducing accessible housing registers,330GC but they did not go on to say why. It would have been helpful to know the reasoning. The Government went on to say, rather more helpfully:The Government encourages local housing authorities to maintain lists of properties that are suitable for disabled people.I do not expect the Minister to have the information directly to hand, but can she tell us how the Office of the Deputy Prime Minister encourages this practice? Is it done through guidance? Perhaps she would write to me and to other Members of the Committee.If we cannot do it through the Bill, are the Government satisfied that they are doing enough to encourage local authorities to maintain such registers?
§ Lord AddingtonThis is one of those amendments to which I really should have put down my name. I congratulate the noble Lord, Lord Skelmersdale, on moving it so thoroughly. One can see that this really is an example of bringing forward best practice, which would save the Government money—or at least the public would save money.
At the least, I hope that the Minister will be able to say that if a register is not being introduced here, it will be introduced somewhere. While this Bill may not be the best vehicle for it, one certainly should be found. However, if this is the only one available, my instinct says that we should go with it.
When being briefed about this, it was one of those occasions when we thought about the problems with it. But when we went through the proposal, we really could not find any.
Let us consider a house or a dwelling that can be easily converted into suitable accommodation. The best starting point is the provision of ground floor flats because anyone with mobility problems, no matter how severe, finds such accommodation easier. If such a flat has been adapted and the tenant moves out, the adaptations may well be removed before a new tenant moves in. But, a few years down the road, they have to be put in again. That is because you start off with only a certain amount of adapted dwellings.
If we accept the Government's position on our earlier amendments, surely making better use of the stock we already have—simply by knowing exactly where it is and when it is likely to become available— is to be applauded. When the Minister replies, I hope that she will be able to tell us when such a scheme will come in. We have been trying to find a slot for it but that exercise might wear a little thin because we might have to wait an awfully long time. With the best will in the world, the political priorities of any government change. To be honest, we do not know what is around the corner or what will be politically sexy tomorrow. How many more dozens of Home Office Bills will be put in front of us?
To finish, this proposal turns on best practice by providing a good service and saving money. It would be very strange if the Government resisted it.
§ Baroness Darcy de KnaythI should like to speak briefly in support of the amendment. I hope that the Minister will be able to say where a slot will be found 331GC for it if it cannot be accommodated in this Bill. Dare I say that it would also help in the thorny question of communal areas because it might be possible to let a flat again to someone else who would benefit from an adapted communal area.
§ Baroness Hollis of HeighamTouche. Increasingly it feels as though I am dealing with a housing Bill rather than one relating to disability discrimination. I am being asked to share with the Committee how far my department and the ODPM have progressed on the disability facilities grant and Part M of the building regulations and on discussions with the DRC about how statutory guidance to local authorities on the allocation of accommodation for disabled people can be strengthened, as well as what progress may be made on housing registers. All that is fine. We all know that government is seamless until it is not. This is obviously an occasion on which we shall need to confer in more detail with our ODPM colleagues.
The amendment would place a duty on all local housing authorities to maintain accessible housing registers of all properties—unoccupied as well as occupied—in their local authority area. This must include all housing with accessible features—a grab rail fitted in an owner-occupied house would go on to the register—and housing that could easily be adapted for disabled people's use. The register would also have to provide information on what is available for disabled people who require accessible housing. Finally, the amendment would give the appropriate national authority the power to provide guidance on how to do that.
First, I shall give the Committee some background on the issue of housing registers, some of which was mentioned by the noble Lord, Lord Skelmersdale, when he referred to the situation in Reading. The duty on local housing authorities to maintain housing registers was repealed only recently in the Homelessness Act 2002. Several changes were made to the allocations framework of that Act. This meant that housing authorities could no longer determine who qualified for housing and so there was no longer a need for a duty to maintain a register.
However, the Government do encourage local authorities to maintain lists of suitable accessible properties for disabled people. This is set out in statutory guidance—the Code of Guidance on the Allocation of Accommodation. Housing authorities are expected to pay regard to it. I have pages from the code. Page 6.25 states:
Authorities may provide assistance to help disabled people meet their housing and social needs by helping them to move to more suitable living accommodation (which may or may not require further adaptation). It is recommended that Disability Housing Registers are further developed by local authorities, RSLs [registered social landlords], or other bodies such as Disabled Persons Housing Services. The principle of such a register is to establish … a database … a register of disabled people … and … a service matching people to properties. 332GC The code goes on to describe how the register may be further used, while paragraph 6.27 states that:It must be recognised that whilst the re-use of adaptations can make a contribution to economy in the use of public resources, for many disabled people further adaptations or modifications will be required to meet their specific needs.In the owner-occupied sector it will probably be impracticable to maintain a permanent register, but it may be useful to get the co-operation of estate agents.
§ Lord SkelmersdaleI think that the Minister is damning with faint praise.
Lord CarterWhat is the statutory force of the guidance? For example, if a local authority was not performing the function as it should and it was challenged, would it have any defence or could it be compelled by judicial review, or whatever, to carry out the work?
§ Baroness Hollis of HeighamMy experience of statutory codes of guidance is that there is a presumption that, if the authority is not fulfilling its duties, it has to show good reason why not. That is my understanding of the law. It is being confirmed from behind me that that is so. There are occasions when one wishes to depart from that, but that is the presumption. It does not quite have the force of law, but one has to show good reason why one should depart from that. That has been my experience with other statutory codes of guidance. It is quite strong.
The ODPM has gone quite a long way in its statutory code of guidance to encourage local authorities to take on the substantive point, subject to some of these practicalities. Equally, the Housing Corporation, with the National Disabled Persons Housing Service, has prepared good practice guidance on disabled housing registers called A Perfect Match, which is currently being updated.
To go back to the question of the noble Lord, Lord Oakeshott, about how many departments are involved (how long is a piece of string?), the Department of Health, the ODPM and the Department for Education and Skills —I am sure it was involved last time but I left it out—have published a good practice guide called Delivering Housing Adaptations for Disabled People, which advises local authorities on how they can establish a first-class service that can deliver adaptations to the homes of disabled people. It has a specific section on registers. The new duty to promote equality in Clause 3 of the Bill will require authorities to consider how best to promote equality in accessing housing.
In other words, the only difference between us is whether an accessible housing register should be on the face of the Bill or whether it should be left to a statutory code of guidance. Given that the reach of this goes beyond what is currently considered reasonable in the code of practice in terms of owner occupation and so on, it is also the case that the Local Government Association wishes us not to go further than we have. It believes that a separate register of adapted property would be based on historic criteria applying to past household requirements. It wants a more inclusive list, 333GC which is being pursued, that involves support networks and educational and medical support for contemporary applicants. It worries that the register would not necessarily take into account the issue of area of choice or good housing management issues and that there is no substitute for pre-letting inspections to identify adaptations previously carried out. That is my experience: what tenants say they have put in and what one sees when they vacate is actually very different.
Furthermore, choice-based lettings under the national development of housing allocation policy offer an important chance to describe more accurately the features of the property in new databases that are being assembled by all local authorities in accordance with the 2010 timescale. The LGA, while not complacent, believes that the way it is moving forward meets the substance of this issue and it would not support a register. As a result, my colleagues in the ODPM would almost certainly not, at this time, support a statutory register that encompassed all property. I think that the substance of the amendment is being progressed, not just in places such as Reading but across the country, perhaps in response to these codes. I am sure that that is greatly to be welcomed.
§ Lord SkelmersdaleThe Minister has again relied on information that I have not seen. I should be very grateful if she could arrange for her officials to send me a copy of this code of guidance.
I must say that it is very surprising. She did not say when the code of guidance was issued and it does not matter terribly, but the question is why, after the most exhaustive search, have I come upon only five local authorities that appear to be following it in respect of setting up some sort of list of property available to disabled people?
On her other point, the fact that an adaptation is now out of date is neither here nor there. The fact is that, whoever you are whether you are able-bodied or disabled you inspect a property to find out whether it is suitable for your needs. If it is not, clearly you will not be persuaded by anyone to go into it. The noble Baroness, Lady Wilkins, wants to interrupt me.
§ 4.30 p.m.
§ Baroness WilkinsDuring the passage of the Housing Bill, which became the Housing Act 2004, the Minister gave us strong commitments on disabled housing registers, for which I was pushing via amendments. It would appear that he is going to revise and strengthen the statutory code of guidance on housing allocations with a specific emphasis on disabled housing registers. It will be set out within the strengthened code of guidance that attention will be paid to housing registers in the coming months, but that is not necessarily in the guidance at present.
§ Baroness Hollis of HeighamI think I said that formal registers were abandoned in 2002 and that a new method of working with local authorities was introduced. But, at the same time, protection was 334GC provided by the statutory code of guidance. So, I repeat: the code of guidance would have come from 2002.
The noble Lord mentioned that there are five local authorities. He may not know of more. He may have consulted the LGA; I do not know. But one would need a body with an overview of what is happening in local authorities. The evidence that I have is that many more authorities do that to a degree, but they tend to act in different ways as they deem suits their local circumstances.
§ Lord SkelmersdaleThat is the whole problem to a degree. I am after a straightforward list. Many of the things that appear to be in the guidance are, as I understood the noble Baroness, things that local authorities should be doing and indeed are almost, but not entirely, compelled to do in respect of disabled people; they do not relate to the actual housing. However, I shall look very carefully at what the Minister said. For her part, she said that she would be happy to send me a copy of the guidance. I shall consult both very carefully. I shall go back to my advisers and see what conclusions we reach, but I should be very surprised if this subject did not reappear on Report in one form or another. Having said that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 13 agreed to.
§ Clause 14 [Power to modify or end small dwellings exemptions]:
§
Lord Skelmersdale moved Amendment No. 67:
Page 35, line 29, leave out paragraph (c).
§ The noble Lord said: This is a simple drafting amendment to the Bill. Clause 14 states that the Secretary of State may lay an affirmative order to amend Section 23 concerning the exemption for small dwellings, Section 24B covering exceptions to Section 24A—the section dealing with discrimination in failing to comply with a duty on let premises—and Section 24H concerning exceptions to discrimination by a lessor of a small dwelling that a disabled person is considering to rent.
§
The Secretary of State can alter any of the terms of the exemption sections that I have mentioned for various purposes. I shall not weary the Committee by reading them all out, but I was struck by the similarity between paragraphs (b) and (c) of Clause 14(1). Paragraph (b) states:
for the purpose of making any of the conditions for entitlement to those exemptions more onerous",
and paragraph (c) then repeats the words exactly but with one additional word—"overall". It reads:
for the purpose of making the conditions for entitlement to those exemptions more onerous overall
Therefore, my question to the Minister is: why is paragraph (c) necessary? In other words, what does "overall" add to the price of fish? I beg to move.
§ Baroness Hollis of Heigham:The amendment relates to the power that the Government propose to take in Clause 14 to amend what is known as the small dwellings exemption. The DRC task force recommended that,
the small dwellings exemption should continue in civil rights legislation with a reserve power to lower the limit of 'six persons' as necessaryClause 14 thus confers a power on the Secretary of State to amend or to repeal by order the small dwellings exemption in Section 23 of the DDA. As yet there is no consensus on the best way of changing the exemption, if change is necessary, or how those changes might need to be implemented. Given that, we are trying to keep the clause as flexible as possible.I am not sure what weight the word "overall" carries. The clause as drafted allows the option of either making changes to individual conditions for entitlement, as long as that makes each of those conditions more onerous, or making changes to the overall conditions for entitlement, as long as those changes make the conditions taken as a whole more onerous. I think that it is a case where the whole is greater than the sum of the parts. As I understand it, that is the weight that is carried by the word "overall". That is not the advice that I am being given but my translation of the advice I am being given. If that is incorrect I shall write to the noble Lord.
§ Lord SkelmersdaleI am afraid that the noble Baroness, who is usually so clear in her explanations so that even someone with a rather slow appreciation can follow a good 75 per cent of them, has failed totally on this occasion. I simply cannot understand the answer to my question of what "overall" means, what it is doing here and why it is necessary. However, she has said that she will write to me—in words of one syllable, I hope, so that I can understand 100 per cent of the answer.
Before I seek to withdraw the amendment, which I most certainly will do, there is one point. I should have thought that Clause 14 comes under the heading of what the noble Baroness referred to earlier as a "statutory instrument fishing expedition". We do not really know any more than the words in the Bill about the why and the wherefore of the Secretary of State making these conditions more onerous. I shall have to consider that thought as regards some of her comments on earlier amendments, that she does not feel that the Deregulation Committee would condone what she calls a fishing expedition. As I say, I shall consider and evolve that thought.
§ Baroness Hollis of HeighamLet us be clear that the task force recommended that the small dwellings exemption should continue in civil rights legislation with a reserve power to lower the limit of six persons as necessary. It is that reserve power that is carried by regulation. We were asked to clarify that by the Select Committee on Delegated Powers and Regulatory Reform, which we did. So the clause has been drafted to make it clear that the power can be used only to repeal the exemption or to make the conditions for entitlement more onerous as opposed to weakening them, thereby increasing the number of disabled 336GC people protected by the premises provision. Clause 14 therefore confers a power on the Secretary of State to amend or to repeal by order the small dwellings exemption in Section 23 of the DDA, as requested by the task force.
The clause is specific that any amendment to the exemption can only be for the purpose of making it either more onerous in each particular place or more onerous overall. Any regulations will be subject to the affirmative procedure. As the noble Lord will know, there is a basic exclusion from the DDA for small premises. This power allows us to make that exclusion narrower, if that seems appropriate. We are following the advice of the DRC. Under the terms of "overall", we cannot use this regulation to make the exclusion less generous to disabled people or to allow more property to go the other way. It can only narrow down, not widen up. That is why the concept of changes can be either more individually onerous or more onerous overall. Either of those would meet the criteria. I do not think that I can go beyond that. I understand how it works in terms of this clause, but if the noble Lord would like a Parliamentary Counsel answer on the weight of the word "overall", I would be happy to seek it.
§ Lord SkelmersdaleI would be very grateful for that because I would have thought that the reserve power that the Minister was speaking to was covered quite happily by paragraphs (a), (b), (d) and (e) and that paragraph (c) is not needed. However, there is no point in arguing over a drafting matter now. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 14 agreed to.
§ Clause 15 [General qualification bodies]:
§
Lord Skelmersdale moved Amendment No. 68:
Page 36, leave out lines 19 to 21.
The noble Lord said: This clause covers victimisation and harassment. While I agree that, in any walk of human life, victimisation and harassment are odious, and there are various Act of Parliament seeking to veto it, or at least to make it unlawful, the Bill and the Act it amends are about discrimination against disabled people. Thus, it is inappropriate suddenly to find included in the Bill a subsection that deals with the victimisation of a person who is not disabled. Such a subsection not only muddies the water, but destroys the whole philosophy of what we are trying to do. I am surprised that it is even within the scope of the Bill and I would be grateful if the Minister would tell me exactly what it is doing here. I beg to move.
§ Baroness Hollis of HeighamWe discussed a similar amendment in relation to the public functions provision of the Bill. It is a read-across. Amendment No. 68 would have the effect of removing a non-disabled person's right not to be victimised in connection with general qualifications bodies. For example, it would not be unlawful for an A-level examining body to refuse to accept an examination entry from someone because they had assisted a disabled person to bring a claim of 337GC disability discrimination against the examining body. This amendment would mean that the new provisions outlawing discrimination by general qualification bodies diverged from the general pattern of the Act in which victimisation of non-disabled people, where they have been assisting a disabled person to bring a case, is unlawful.
This would not only mean that non-disabled people were denied rights that are properly conferred in other areas that are regulated by the Act; it would also limit disabled people's access to justice. If non-disabled people were not protected against victimisation as a result of giving evidence in proceedings under DDA, then disabled people might well find it difficult to identify witnesses willing to take part in proceedings, even in cases where a body has been discriminating unlawfully in a wholly blatant fashion. I hope that the noble Lord will agree that that would be unreasonable. It is effectively a DDA version of whistleblowers' protection if somebody aids a disabled person in a case. That is what is going on here. We also have it in ASBO and so on, where we need to protect third parties who help disabled people. I believe that we have accepted it elsewhere in the Bill. I hope we accept it here.
§ Lord SkelmersdaleI accept it so far, but only so far. The Minister is saying, as I understand it, that the able-bodied person has to be associated with the disabled person before this bites. Is that what Section 55 says?
§ Baroness Hollis of HeighamLet me invent a case, because I think it may be helpful. Suppose that there was a disabled student who had language difficulties, for example, who had cerebral palsy and whose speech was faltering. He sought extra time and the invigilating body refused to give that assistance. A 15-year old friend of that student gave evidence that it had been refused and so on. He then broke his arm on a bicycle and needed some help in an examination because of his injury but it was denied to him because he had been associated with the previous case. That would be regarded as victimisation. I have to say that the number of cases that this might generate is hard to imagine but we are seeking to be consistent with victimisation in other areas—in the employment field, for example—where there may be cases and it makes sense to have a read-across in the Bill.
§ 4.45 p.m.
§ Lord SkelmersdaleThe noble Baroness has convinced me why it is necessary, but she has not convinced me that the wording is actually right. Like me, she referred to the word "associated". I can see no good reason why that word, which she and I both want and mean, and which she says appears in Section 55 of the DDA—I cannot find it—should be included in both that section and the new clause. I shall ponder further upon the matter. In the mean time, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
338GC
§
Lord Skelmersdale moved Amendment No. 69:
Page 36, leave out lines 35 and 36.
§ The noble Lord said: This is the longest grouping today; it includes Amendments Nos. 69 to 72, all of which relate to Clause 15, on which I have a number of questions. I hope that the fact that they have been grouped together, sometimes rather surprisingly, and that I allowed them to be so grouped, perhaps for the sake of speeding up the Committee, does not make what I say unclear.
§ Amendment No. 69 gives me the opportunity to ask the noble Baroness what progress there is on the Sewel Motion in the Scottish Parliament. Like her, I cannot envisage any problem, but it is necessary for a Sewel Motion to be passed before the Westminster Parliament can legislate for any matter that the Scotland Act 1998 makes the normal province of the Scots.
§
Again, I am not sure why Amendment No. 70 is grouped. It is about the meaning of "harassment", which the Bill describes, at least as far as general qualification bodies are concerned, as happening when,
the body engages in unwanted conduct which has the purpose or effect of—
(a) violating the disabled person's dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him
The curious thing is that it is not general; it happens only when the behaviour is unwanted. Surely it does not matter whether the behaviour is wanted or not. It should constitute harassment all the time, not only when it is unwanted.
§ I tabled Amendment No. 71 to elucidate the position of a hall hired by a general qualification body for the purposes of holding exams. I mentioned the matter very briefly at Second Reading. For example, the Royal Horticultural Society, just up the road, has exhibition halls that it hires out for examinations for various professional and educational bodies. I would expect it to be covered by the new subsection. Is it?
§
Amendment No. 72 is rather different. In its typically exhaustive examination of the order-making powers in the Bill, your Lordships' Select Committee on Delegated Powers and Regulatory Reform said that new Section 31AE concerned enforcement matters which for discrimination under the 1995 Act in other contexts are contained within the Act itself. The departments have explained to us that, in respect of new Section 31AE, that approach is not possible because:
There are unresolved issues concerning the most appropriate enforcement mechanism … In our view it is unsatisfactory for the bill to give no indication of the remedies that will be afforded to a successful applicant".
They thus concluded that, unless the Bill is amended to include such provision, the affirmative procedure should apply to any regulations making provision as to remedies, not just the first ones, as currently provided for in the Bill. I tabled Amendment No. 72. therefore, to tempt the noble Baroness into agreeing with the Committee—something that I have never heard her resist. I beg to move.
§ Baroness Hollis of HeighamI shall try to be brief. The trouble is that, if I am brief, I am told that I have not answered certain questions, but quite long speeches are required to answer the questions fully. I have been told to be brief, so I shall be. If I have given an unsatisfactory or even impenetrable answer, the noble Lord will come back to me.
I shall deal in turn with the four amendments that seek to amend Clause 15. Amendment No. 69 seeks to amend a relatively technical part of the Bill and would not have a significant impact, but it would create an anomaly—the noble Lord picked that up in mentioning the Sewel amendment—by placing duties upon Scottish education authorities but not their English or Welsh equivalents.
Scottish education authorities along with English and Welsh ones are specifically excluded from Clause 15. The reason is that any duties to be imposed on education authorities are made under Chapters 1 and 2 of Part 4 of the Disability Discrimination Act 1995, not new Chapter 2A. In any case, LEAs and Scottish education authorities do not in general compare qualifications— certainly not general academic qualifications, which are done by joint boards—of the type that the clause is intended to cover. Existing duties under the DDA cover any responsibilities that education authorities have concerning, for example, the administration of examination assessment arrangements.
In the context of this amendment the noble Lord asked about the Sewel Motion. A Sewel Motion is not needed for this clause but one is needed for the earlier clause on the public sector. So the noble Lord was on the bull's eye but perhaps the wrong target. Progress is being made in that respect to ensure that the Motion is passed.
Amendment No. 70 would put the definition of "harassment" in Clause 15 out of line with that used in relation to vocational qualifications. This definition and the other provisions in this clause are modelled on the sections of the DDA that cover vocational qualifications. It is important that the definitions are uniform and consistent, since some awarding bodies offer both general and vocational qualifications and some candidates may take both. I remember vividly, perhaps 18 months ago, the noble Baroness, Lady Darcy de Knayth, having a go at me about the need to deal with general qualifications and not just vocational ones, so she should be coming here to cheer us on for meeting the very concerns that she was pressing me on.
The word "unwanted" is an important part of the definition. It sounds redundant, and I agree that there will be few circumstances in which conduct, as defined under the clause, could be desired by a disabled person. However, there will be cases where the overall judgment about whether conduct constitutes harassment under the 1995 Act needs to include consideration of whether the disabled person had in fact requested the conduct complained of or given any reason to believe that such conduct was wanted or acceptable.
Perhaps I may give an example to clarify the point. Again, I do not think that it is very likely, but it should be considered all the same. Let us consider a scenario 340GC where a candidate taking an oral exam requests at the outset that the exam administrator expressly mention that he has a speech impediment, so that it will be clearly understood by the examiners. I guess that it might apply if somebody with cerebral palsy was taking a viva voce as part of a French or German exam, and the examiner taking the viva could not necessarily be expected to know that the candidate had a speech impediment. If the exam administrator followed that request but the disabled person subsequently felt embarrassed or humiliated, it would surely be pertinent to a judgment on whether the action constituted harassment that the disabled person had in fact requested it. The administrator would have had no way of knowing that that would be the reaction of the candidate after the event. So the word "unwanted" in the definition may make a difference only in limited circumstances in practice, but we think that it is necessary none the less.
We understand why Amendment No. 71 was tabled. We do not want qualification bodies to seek to avoid these duties, and they will not be able to do so. The term "occupied" is used throughout the DDA without any qualification. It must be given its ordinary, commonsense meaning, and that encompasses leased premises, such as the Royal Horticultural Society hall, or other premises temporarily occupied.
Amendment No. 72 seeks to make any regulations made under subsections (1),(2) or (4) of Section 31AE, which amend the DDA 1995 itself, subject to the affirmative resolution procedure. I hope that the noble Lord will agree that we have done our best to answer his amendments.
§ Lord SkelmersdaleThat is a very comprehensive answer—it may surprise the noble Baroness to hear me say that. When there are two targets side by side, it is sometimes difficult to aim at the right one. I am therefore grateful for her response on what I might call the peppermint amendment, Amendment No. 69.
So far as concerns the inclusion of "unwanted", I understand that the noble Baroness wants consistency. I shall look very carefully at the existing DDA to find out whether there is consistency. I am delighted with the noble Baroness's answer on let premises for the holding of examinations. I am sure that she is absolutely right—she had better be.
On Amendment No. 72 and the Select Committee on Delegated Powers and Regulatory Reform, the noble Baroness did not quite go as far as to say that she would table an amendment on Report, but I understood that that was the intention.
§ Baroness Hollis of HeighamNo, the Bill already provides for it in paragraph 32(5) of Schedule 1.
§ Lord SkelmersdaleIn that case, I shall look that up. It was a very comprehensive answer, for which I am grateful to the noble Baroness. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 70 to 72 not moved]
§ Clause 15 agreed to.
341GC§ Clause 16 agreed to.
§ Clause 17 [Meaning of "disability "]:
§
Lord Skelmersdale moved Amendment No. 73:
Page 42, line 31, leave out subsection (2).
§ The noble Lord said: I wish to assure the Committee that this is a probing amendment, despite concerns that have been expressed to me. It is not an effort to reintroduce the requirement that a mental illness be clinically well recognised in order to satisfy the definition of disability, but a peg on which to hang a debate about mental illness and neurological disease in relation to the Bill.
§ Indeed, the requirement that a mental illness be clinically well recognised is itself discriminatory. Its removal by Clause 17(2) is most welcome, not only by Members on these Benches, but by the Joint Committee and many other Members of your Lordships' House. I pay tribute to the work of the noble Lords, Lord Ashley of Stoke and Lord Lester of Herne Hill, for their two Private Members' Bills, which went a significant way in arguing that case.
§ The reason I would like to discuss mental illness and neurological disease is to question whether we are going far enough. Are we continuing to be discriminatory against other progressive mental illnesses that fall outside the current definitions of disability? The immediate example that springs to mind is that of "anxiety", "stress" or "depression", but as that is the focus of the next amendment, tabled in both my name and that of the noble Lord, Lord Carter, I shall concentrate on other mental impairments.
§ I am sure that many Members of the Committee are aware of the book The Curious Incident of the Dog in the Night-Time, about a child with autistic spectrum disorder (ASD). ASD affects a person's ability to communicate with and relate to others. It affects approximately 520,000 people in the UK. Some 403,000 individuals on that autistic spectrum do not have a learning disability. They may be highly intelligent and articulate but find it impossible to decipher the social signals that the rest of us take for granted. ASD has a huge impact on a person's daily life and ability to work without support or adjustments in the workplace. The existing disability discrimination law, as I understand it, is ambiguous about certain forms of ASD, especially Asperger's syndrome; hence my concern.
§ 5 p.m.
§ Ambiguity leads to practical problems. The preoccupation with correct labelling distracts the court from the real issue: has the person an impairment that substantially limits normal day-to day activities, be it ASD, schizophrenia, depression or anything else? A court may feel that, if it cannot be precisely diagnosed, it cannot be serious, or that in the case of progressive neurological diseases such as Parkinson's disease and Alzheimer's, the condition is not serious until the symptoms progress to a point where they interfere with daily life. Ambiguity also creates the 342GC hurdle that people with mental health problems may find it difficult to overcome disagreements between medical experts before they are considered seriously.
§ How does the Bill cover people with impairments such as ASD, particularly those who are not learning disabled? Why have efforts been made to include multiple sclerosis from diagnosis while the Bill fails to cover all progressive and fluctuating neurological conditions such as Parkinson's disease, which affects not only the over 60s but people of working age? At present, there are 30,000 such people in the UK, who may wish to continue to work for as long as possible. Surely we should aim to treat all illnesses equally to avoid the very nature of discrimination that we are removing with Clause 17(2). I beg to move.
Lord CarterOn an earlier amendment, the noble Lord, Lord Higgins, helpfully reminded the Committee that to table an amendment to delete a provision does not necessarily mean that the mover of the amendment actually wants to leave it out. He might want to probe the situation, as the noble Lord, Lord Skelmersdale, has done extremely well.
During the Joint Committee, of all the issues in the Bill, the evidence on this matter was the strongest. It was very clear. The committee concluded that the effect of the legislation was entirely unintended. The drafting of the 1995 Act was well intentioned: the aim was to catch people who pretend to have a condition; therefore, if the condition could be named, it would be recognised. As the noble Lord has said, that almost built into the system discrimination against people with a mental illness.
That discrimination was shown by some internal work. The third monitoring report commissioned by the DWP and the DRC concludes that current case law has shown that,
the demands placed on the applicant to prove mental impairment by way of mental illness are greater than those to show physical impairment or mental impairment other than mental illness".In other words, it was inherently discriminatory. The committee was delighted that the Government accepted our recommendation that the requirement be removed. It was argued that the requirement should instead be that medical evidence must establish the effect of the condition on the person, which would then put mental illness on the same level of proof as physical impairment. That was one of the most important changes that the Government agreed to make. As I recall, it brings 250,000 people into the scope of the legislation, so one can see just how important it is.
§ Lord Oakeshott of Seagrove BayI have been requested by the organisation Rethink to ask the Minister to confirm what the position of people suffering from schizophrenia is under this clause. I apologise that I have not given the Minister warning of the question, so I understand if she would prefer to write to me.
§ Lord Ashley of StokeBefore the Minister responds, perhaps I may make two very brief comments. First, the noble Lord, Lord Skelmersdale, moved his amendment 343GC so brilliantly that he should join the Labour Party. We should provide him with an application form as soon as the Grand Committee has concluded.
Secondly, I remind the Government that the Private Members' Bill that I introduced in the House of Lords, which dealt with precisely this issue and set it out in some detail, was accepted by all parts of the House. So the House of Lords has now already accepted the principle; all we need from the Minister is to accept the practice.
§ Baroness Hollis of HeighamI am not sure why the amendment has been tabled, because it seeks to toughen up a definition and go back to the previous position. The noble Lord, Lord Skelmersdale, argued for the exact opposite: he asked why we were not extending the legislation to certain other groups. That might have been more effectively done by tabling an amendment to that effect, allowing us to focus on the groups in question. The amendment has been turned 180 degrees so that the discussion of it is almost like a clause stand-part debate. I am intrigued by that. I can only hope—I suspect, darkly—that the noble Lord has changed his mind, or has had his mind changed for him, since tabling the amendment. We welcome it, if that is the case.
§ Lord SkelmersdaleI made it perfectly clear that the amendment was intended to probe various aspects of mental illness in covering various conditions, which I have mentioned. I do not see why it makes any difference whether I have given notice to leave out the clause or whether I have tabled an amendment that at least points to the sort of direction in which I was likely to be involved.
Lord CarterI can confirm that the noble Lord has not changed his mind. In meetings to discuss these amendments he made it clear that this was a probing amendment and that he had no intention of arguing that the subsection should be removed. The problem is that the Bill team has to prepare a speaking note on the basis that it will be argued that the subsection should be left out. That is the difficulty.
§ Baroness Hollis of HeighamAs is, this amendment seeks to do the opposite of what the noble Lord says. Obviously, I am briefed to respond to what the noble Lord's amendment does, as opposed to what he said. In this case, I can respond very quickly. As my noble friend Lord Carter has made clear, and as is accepted, our concern is to remove a label that had little practical effect but was assumed to carry more than it did. What matters is whether the impairment, whatever its label, has a substantial and adverse effect on daily living.
The test for us, therefore, is not whether we can label the impairment but its impact on everyday life. That is why these words, despite the original fears associated with them, are redundant and why what matters is the test of the effect on life. That allows me to answer to answer the noble Lord's particular questions. There is no question about Parkinson's disease; it is covered by the DDA where the effects tend to loss of mobility and dexterity. Schizophrenia 344GC was covered in Goodwin v The Patent Office in October 1998. That is covered by the DDA. Like the noble Lord, I very much enjoyed Mark Haddon's book. Again, cases of Asperger's syndrome are not ambiguous: the Hewett v Motorola case of 2004 established that a person with Asperger's syndrome was covered by the DDA. In all those cases the impairment has a substantial and adverse effect on daily living. Therefore, they are covered by the DDA.
I could go on much longer to talk about types of mental impairment and so on, but I am not sure that I need to. That may give the noble Lord the assurances that he seeks. We are looking at where the impairment so affects someone's living situation that, in the same way as if they had a substantial physical disability, they should come within the protection of the DDA.
§ Lord Morris of ManchesterThe noble Lord, Lord Skelmersdale, has made it clear that this is a probing amendment. It has, however, provided the opportunity to recall that it was in this policy area that, in the view of the Disability Rights Commission, there was brought one of the most positive of the Government's changes to the Bill by removing the provision that a mental illness be,
clinically well recognised in order for a mental health service user to be covered by the DDA".I am sure it would unthinkable for all of us for any suggestion to be made of a return to that wording. Quite clearly that was not the intention of the noble Lord, Lord Skelmersdale.
§ Lord SkelmersdaleSupport from the Labour Party has been deafening this afternoon, has it not? Suddenly, it has erupted. Should I ever decide to join that great party, I wonder whether the noble Lord, Lord Ashley, would write my election address for me.
As I said, and as was appreciated by both those noble Lords, this was a purely probing amendment, which the noble Lord, Lord Carter, confirmed. I asked about Parkinson's disease, schizophrenia and Asperger's syndrome, to all of which I have received very satisfactory answers, and I am grateful. So I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn
§
Lord Carter moved Amendment No. 74:
Page 42, line 32, at end insert—
( ) In paragraph 2, after sub-paragraph (l)(c), there is inserted—
(d) in the case of the impairment consisting of or resulting from depression, it has lasted or is likely to be at least a total of 6 months over a two year period."
The noble Lord said: This is not a probing amendment. It repeats, as an amendment to the Bill, a recommendation of the Joint Committee, which was that,
people experiencing separate periods of depression totalling six months over a two-year period should be considered to meet the 'long-term' requirement".
The Government did not accept that recommendation on the grounds that, under the DDA, someone would not normally meet the definition of "disability" unless
345GC
any substantial effect of their impairment lasted, or was likely to last, for 12 months. Therefore, disability is normally accepted as being a condition that is permanent or long term.
§ To qualify as disabled for the purposes of the DDA, the claimant must have an impairment with a long-term adverse effect on normal day-to-day activities. "Long term" is defined to last for a past period of at least 12 months or there must be a likelihood that the period will be 12 months.
§ Recurrent conditions are also covered if the "substantial adverse effect" of an impairment has not lasted for 12 months but is likely to recur. The aim of this provision was to cover impairments whose effect on day-to-day activities fluctuates. However, case law has shown that the provision is not effective in the case of depression. There are differences of view within the medical profession as to whether, and when, episodes of depression are manifestations of an underlying condition and when they are discrete episodes. As a result, experts often disagree in court on the issues.
§ I was helped in the drafting of this amendment by some notes that I received from the noble Baroness, Lady Murphy, who is a consultant psychiatrist. She is not able to be here today, but I shall draw on her notes in what I am going to say.
§ The requirement that a mental impairment has a substantial long-term effect on day-to-day activities can exclude some severe episodes of depression where the impairment is profound for short, and typically recurrent, episodes over a two to three-year period and the stigma resulting from those episodes can lead to major discrimination in the workplace. Typically, an individual who suffers an episode of hypomania or psychotic depression—the whole lasting for about four to six months—is then held back unreasonably in his or her career for many years after recovery and has no recourse to the protection of the law in dealing with an employer's unreasonable treatment.
§ Interestingly, before effective antidepressant drugs became available in the 1940s, episodes of severe depression lasted some two to three years and then the sufferer usually spontaneously recovered. Now, medication does not so much cure the underlying episode as lift the symptoms, enabling the patient to return to normal life, although still in a rather vulnerable state, after about four to six months. That is why so many depressions appear to go away and then return in further bouts over the course of some two to three years. Reducing the qualifying period to six months would recognise these clinical realities and would do no more than reflect the continuing vulnerability of the person who has experienced this kind of illness.
§ There is a real problem here. I hope that the Minister will be able to say that, in some way, depression is caught by the existing situation as it is clearly a recurrent condition. But, from the wording of the Bill, it appears not to be covered. I think that this is an important area where it was wrong of the Government 346GC not to accept the recommendation of the Joint Committee. I hope that I shall hear some helpful words from the Minister. I beg to move.
§ Lord SkelmersdaleMy name is also attached to this amendment moved by the noble Lord, Lord Carter. All the disability charities and all noble Lords to whom I have spoken welcome the fact that, as I said earlier, mental illness no longer has to be clinically identifiable. However, as the noble Lord, Lord Carter, said, it makes no sense for mental illness to be treated as a temporary condition. Stress is the obvious example. Indeed, it is sometimes used loosely instead of the word "depression". It is not likely to last for more than 12 months, unless of course repeated attacks lead to epilepsy, as it appears to do with a member of my family, or to diabetes. I understand that there is a condition called "stress diabetes".
Be that as it may, stress can, and does, recur with all the effects that we have no doubt seen in others, if not ourselves. Those effects may well have a substantial adverse effect, as Schedule I calls it. One simply cannot tell whether it will recur and have the same effect, which is why the noble Lord, Lord Carter, and I currently believe that we need a little extra in the Bill. We believe that mental illness which lasts for six months or more but less than 12 months should still be covered by the Bill.
§ Lord AddingtonVery briefly, the committee heard a great deal of evidence about that and it became clear that, as currently drafted, the Bill does not cover depression, in particular, which must be the most common form of mental illness. That is a debilitating condition, the most common one going, but the Bill that is intended to provide help and support on this issue is flawed. The Government should change that and I encourage them to recognise that they have left a hole here and to fill it.
§ Baroness WilkinsVery briefly, I support the amendment. Depression attracts significant discrimination and the amendment is badly needed.
§ Baroness Hollis of HeighamMy noble friend Lord Carter went to the core of the problem when he made the distinction, medically appropriate or not, that is commonly held between episodes of depression that are regarded as symptoms of an underlying condition, which is covered, and a discrete episode engendered perhaps by bereavement, perhaps by the birth of a child. Someone may have given birth to a child and then, 18 months later, suffered a bereavement and suffered a second period of depression physically— medically—unconnected to the first. Should that enjoy the protection of the DDA? That is where the core of the discussion lies.
Let me describe the background. The issue of DDA coverage of mental illness, especially depression, has attracted a lot of interest, and I want to assure the Committee that, notwithstanding everything that has been said, the DDA already provides significant protection for people with depression.
347GC The DDA definition of disability covers people who have depression where the effects of that impairment are substantial and have lasted or are expected to last at least 12 months, but there is also special provision for people whose impairment has recurring effects. Those ensure that an impairment that ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities is treated as continuing to have a substantial adverse effect if that effect is likely to recur.
Conditions with effects that occur only sporadically or for short periods qualify for DDA protection, provided that they are part of the same underlying impairment and that the effects are likely to be substantial and to recover beyond 12 months after the first occurrence. That can include depressive illness such as dysthemia, which is a persistent mood disorder.
Let us take a case. A person goes to his GP with symptoms of depression that started about a month earlier. However, his medical records show that he has previously been diagnosed with dysthemia. The man has had several previous episodes of depression, each lasting two or three months, over a period of several years. The doctor provides him with a medical certificate citing dysthemia as the nature of the impairment. Although the person has currently been unwell for only one month, the episode is part of an underlying condition that has a recurring substantial adverse effect on his ability to carry out normal day-to-day activities, and he is therefore covered by the DDA.
The Bill will therefore improve the position of people with mental illnesses. By removing the requirement that a mental illness must be "clinically well-recognised", we are making it more straightforward for some people with mental illnesses, including depression, to prove that they are disabled under the Act. Of course, the gateway remains sturdy—the person must still prove that his impairment has a long-term and substantial adverse effect on his ability to carry out day-to-day activities— but it does remove the barrier that we know has been causing difficulties.
The amendment would go much further in a way that would disturb the fundamental nature of the Act. The line to define "long term" must be drawn somewhere and I believe that 12 months is the right place. Let us consider the example of the young mother with no history of depressive illness. She has a second child in June 2005 and experiences a period of severe post-natal depression, lasting for eight months until December 2005.
However, following medical treatment, she experiences no further episodes of depressive illness. Although her depression lasted for more than six months in two years, I do not believe that anyone would consider her as disabled. That post-natal depression might recur not with the next child but with the child after that and again rectify itself in three, six or eight months.
It is not clear to me that that person would or should qualify under the DDA. If we reduce the time requirement for depression to include people such as that mother with the single episode in DDA coverage, 348GC it could be argued for other conditions, such as a broken limb or severe injury. The DDA provides rights of significant value and it is important that we have proper and robust gateways to entitlement.
The amendment would also introduce an unacceptable level of complexity. The disabled individual, and those with duties under the Act, would need to keep detailed records to provide evidence to establish whether, or refute that, a person had met the "six months over two years" rule. Such complexity would not help those who have only recently gained new duties under the Act and who need time to understand their responsibilities.
I do not like to use this phrase too often but I think that we have the balance right here. Rightly, we have accepted that depression can be, and often is, a severely disabling illness and that it may be exhibited only in recurrent episodes some time apart—six months, two years, or whatever—but is none the less part of an underlying illness. The doctor will diagnose it as such and that person will come under the protection of the DDA. We do not want to link discrete, circumstance-based episodes of depression to give coverage under the DDA for which it was never designed.
I hope that, with that reassurance, my noble friend will feel that we are meeting the spirit of the Act while ensuring that those who should not come within its protection remain outside.
Lord CarterI am extremely grateful to the Minister. I am not wholly surprised by her answer, although 1 shall obviously want to read it and take advice. It still does not square with the evidence that we received. Interestingly, during the passage of the DDA into law in 1995, William Hague, who should get credit for the introduction of that Act—it was the first step on a long road and he deserves credit for it—mentioned depression along with other commonsense examples of mental illnesses where the person affected would be classed as disabled. Official statistics on the population covered by the DDA definition of disability include depression in the list of health problems and disabilities.
However, this is not the time to continue the debate. I shall read what the Minister said and take advice, but I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§
Lord Carter moved Amendment No. 75:
Page 42, line 32, at end insert—
( ) In paragraph 4(1) at the end there is inserted—
The noble Lord said: The purpose of the amendment is to improve the coverage of mental health conditions within the definition of disability by including those capacities that are most likely to be severely affected for people with eating disorders, depression, anxiety disorders and schizophrenia.
349GC
Ability to communicate and interact with others is also likely to be severely affected for people with autistic syndrome disorders. The amendment again follows a recommendation of the Joint Committee. The Government seemed to imply in their answer—it would be helpful for the Minister to address this when she replies—that many such cases of concern are in fact caught by the DDA. It would be helpful to have that confirmed.
§ However, the day-to-day capacities listed in the Bill are predominantly physical. In order to prove that he or she is disabled, a claimant is therefore required to show a substantial adverse effect on a capacity that is not necessarily the most relevant. The National Autistic Society pointed out that existing disability discrimination legislation was ambiguous about certain forms of autistic spectrum disorder, especially Asperger's syndrome. Many people with ASD find it impossible to decipher the social signals that the rest of us take for granted. That impairment has a serious impact on their daily lives—in particular, their ability to communicate and interact with others.
§ The DDA includes a list of activities that must be affected if an individual is to be classed as disabled under the terms of the Act. As communication and interaction with others is not listed in the Bill, the NAS argues that people with ASD who do not have an accompanying learning disability are not adequately covered by the DDA.
§ It is interesting that the Joint Select Committee considering the Mental Health Bill, on which I serve, is also looking hard at this area. It is considering the definition of mental illness for the purposes of that legislation. When the Minister reflects on our debate today, she might want to look at the transcripts of the Joint Select Committee's discussions on this subject in order to ensure that the provisions in this Bill, when it becomes law, are in line with what is likely to be provided in the Mental Health Bill. I beg to move.
§ Lord AddingtonI rise just to emphasise what the noble Lord has said. In effect, we are talking about hidden disabilities here—those which are not immediately apparent. Not only government but public awareness of such disabilities—how frequently they occur and how much they can impinge on people's lives—is low. As a society, we are only now starting to get to grips with it.
In a previous response, the noble Baroness said that the Government are trying to work in conditions such as autism, which is probably enjoying the widest publicity at the moment. We need to consider the number of people affected by it, how severe their problems are and how differently they perceive the world around them. Such people should be brought in under the Bill so that they are able to get on with their lives with the benefit of a little support. That is what we are trying to achieve here by going through the methods by which we can make progress. Our aims would be helped by making the definition a little clearer. It is not only a case of doing it but of doing it clearly.
350GC Even if we cannot get this wording into the Bill, if the Minister can give us an assurance and provide more guidance on where such conditions are to be defined, that would help. However, putting the detail in the Bill would be better.
§ Baroness Hollis of HeighamI shall do my best. I do not know whether to refer to these as "capacities", but the criteria are set out in the Disability Discrimination Act 1995. I join with my noble friend in saying how much the disability movement owes William Hague as well as my noble friends Lord Ashley and Lord Morris in putting us in the position that we are in today. Paragraph 4 of Schedule 1 to the 1995 Act states:
An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following—mobility, manual dexterity, physical co-ordination, continence, the ability to lift or carry … speech, hearing or eyesight, memory or ability to concentrate, learn or understand, or perception of the risk of physical danger".We are aware that the DDA's definition of disability does not adequately cover people who have certain mental and developmental impairments such as depression, schizophrenia and self-harming behaviour and, as we discussed earlier, those with disorders such as Asperger's syndrome. The concern is that the DDA does not cover those conditions because, as my noble friend has argued, the list of capacities is not wide enough. I want to argue that all the cases that we have discussed so far would quite properly be captured by that list. I think that that was what I was being invited to do by the noble Lord, Lord Addington.Where a person has a mental illness such as depression, account should be taken of whether, although that person has the physical ability to carry out tasks such as washing, preparing a meal and so forth, he or she is, in practice, unable to sustain such activity over a reasonable period. Colloquially, one hears of friends who curl up in their beds. Such behaviour would be caught by this description.
Account would also need to be taken of whether such a person was inhibited by their mental state in getting around, leaving the house or being without assistance in an unfamiliar place. In those circumstances, the existing capacities of mobility would clearly be affected by the impairment. For those who self harm, the ability to understand is affected by their condition. People with agoraphobia find that their capacity for mobility is affected.
In terms of communication, the current list of capacities includes speech. A person with depression may not wish to communicate extensively with others and their speech is therefore affected. There may also be adverse effects on memory and concentration, including the ability to plan and organise simple tasks. All those would come within our framework.
In the case of a person with a developmental disorder such as Asperger's syndrome, if a person sees the world in a wholly different way from most of us, their capacity for understanding would be affected. 351GC Indeed, the noble Lord, Lord Skelmersdale, and other noble Lords will recall the moving incident in the book where a child of around seven years of age was shown a tube of Smarties and was asked what was in it. The child said, "Smarties". The teacher opened the tube and revealed two pens inside. She put the lid back on the tube and said to the child: "When your mummy comes in and we ask her what is in the tube, what will she say?". The child replied, "She will say that there are two pens in it". That provided me with an insight into the kind of logic that drives out other capacities of thinking. Again, such conditions would be captured under the concept of understanding.
Our view is increasingly being supported by case law in this area. We are not aware of any cases where a person with a mental or developmental impairment who should have been regarded as disabled and thus entitled to the protection of the DDA was held not to be covered by the present list of capacities. I have already mentioned Hewett, v Motorola for Asperger's syndrome, as well as the case of The Patent Office v Goodwin, in which it was established that schizophrenia is a mental illness and therefore clearly covered by the DDA.
There is much that can be done by improving the statutory guidance which the Secretary of State issues to courts and tribunals on matters to be taken into account in determining questions relating to the definition of disability. I fully accept that that may need to be done. It does not reflect the latest case law and it may not sufficiently explain how the wide application of the list of capacities can cover mental and developmental impairments.
We will remedy both of those deficiencies. It is clear that there is sufficient misreading and possible ambiguity in this area. We think that the best way to do this is to strengthen the codes of guidance in such a way that courts and tribunals, along with others who use the guidance such as employers, service providers and disabled people themselves, will better understand the broad effect of the capacities so that we do not have to revisit old, settled and often hard-won ground.
There have been some examples which suggest that there may be grey areas. We shall seek to ensure that the position is made absolutely clear. I hope that, with those assurances, my noble friend will feel able to withdraw his amendment.
§ 5.30 p.m.
§ Lord SkelmersdaleBefore the noble Lord, Lord Carter, responds, there is already an order-making power which I understand could be used to add to the list in paragraph (4)(1) of Schedule 1 anything that seems to be appropriate. I am not in the least surprised that the Minister has said that the particular abilities or lack thereof set out in the amendment of the noble Lord, Lord Carter, are already covered and will be spiced up by a revised code of guidance. I am sure that the noble Lord is as delighted to hear about it as I am.
352GC However, judging from what I referred to originally as the quasi-keeling schedule, the order-making powers have never been used. Perhaps the Minister can confirm that they could be used if it was deemed necessary.
§ Baroness Hollis of HeighamI am advised that we do not have a power by regulation to add to the list set out in the 1995 Act. If that is incorrect I shall write to Members of the Committee.
Lord Carter : Iam not quite sure what that means. We made a recommendation when a surprising case revealed that multiple sclerosis was not regarded as a disablement. That is why it is now included in the definition, as are cancer, HIV and MS. This was surprising case law. We made a recommendation that the Government should take a regulation-making power in case further,
surprising case law indicates that the definitions are not operating in the way the Government intend, which would enable such conditions clearly to be brought within the scope of the DDAThe response we received was:We accept this recommendationThat is why I presume that the order-making power applies to the schedule.
§ Baroness Hollis of HeighamBut that order-making power is about particular illnesses and not capacities, which is different.
Lord CarterI understand. The Minister's answer was reassuring. In response to our recommendation, the Government said that they would revise the statutory guidance. They said that that should be enough to ensure that developments in case law and changes in legislation are covered. They said that they would look in particular at whether it is necessary to make clear in the guidance how people with mental impairments, including those with depression, those who self-harm and those with conditions that fall within the autistic spectrum disorder, are covered by the DDA. That is extremely reassuring. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§
Lord Skelmersdale moved Amendment No 76:
Page 42, leave out lines 37 to 39
The noble Lord said: Cancer is always a most serious cause of concern, and the most likely cause of death—if you separate, as I have learnt to do over the past 10 or 11 years, heart disease from stroke, which medical statistics group together. The National Statistics Office says that in 2003, the last year for which we have figures, there were almost 140,000 deaths from cancer, 26 per cent of total deaths. This amendment seeks to persuade the Government to treat all cancers the same for the purposes of the DDA.
§
Currently the Bill allows the Secretary of State to lay orders to disapply so-called "non-serious" cancers, which will not be covered by the very welcome inclusion of cancer in the Disability Discrimination
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Act. We had a very short discussion of the matter at Second Reading, when, atypically, I cross-questioned the Minister during her winding-up speech. Before Second Reading, we knew only that there was to be such an excluded list. The noble Baroness said, in effect, that she did not know what was to be on it, but then stated subsequently:
We are consulting on basal skin cell cancer and squamous cell cancers.—[Official Report, 6/12/04, col. 710.]
The noble Baroness went on, after my intervention, to mention cervical cancer, which can be treated by cone biopsy. We now know of three forms of cancer, which are likely to be—although I understand that it is not yet settled—on the excluded list.
§ I am no medic, and plenty of other Members of your Lordships' House know much more about cancer than I do, although there are no obvious examples in the Grand Committee at present. I hope that we will hear from those noble Lords before too long. However, I do know that there are very few types of cancer, if any, which, if not treated quickly, will not spread with devastating effect. Once cancer has a hold on the body, it will normally after months or years hit a major organ, and death is then inevitable. Although not a case of minor cancer, my mother, for example, went to her GP because she had discovered a lump on her breast. He examined her and said, "Nothing to worry about. Come back in six months when I am back from being a locum in Australia". She duly did, and in six months she had to go into hospital, resulting in the removal of the breast. Alas, despite further treatment, it was not sufficient, and two years later she died of cancer of the liver. So I make the point that cancers spread.
§ None the less, it is not for medical reasons per se that I believe the Government have added cancer to the definition of disability. It is because they have been convinced through the cases brought by the Disability Rights Commission that people with cancer, particularly but not exclusively of working age, are discriminated against. They are discriminated against in the areas of employment, mortgage applications, insurance and health and travel insurance, to name but four.
§
The key to the DDA is whether less favourable treatment is justified. That is covered by An Insurer's Guide to the Disability Discrimination Act 1995, which says:
In relation to the terms on which the service is provided, the difference in terms reflects the greater cost to the provider of services in providing the service to the disabled person.
The insurer should avoid imposing precautionary higher premiums where there appear to be no definite grounds for justification. The Association of British Insurers has told me that this is the case. But—and it is a very big but—this applies only to the DDA, as amended, to qualify a person as disabled.
§ If we do not remove this exception to the Act, Clause 17 will mean that there are two lists: an A-list of cancers that are covered, and a B-list that will not qualify. The B-list will not be protected from precautionary—I do not go quite as far as Macmillan Cancer Relief and describe 354GC them as "scandalously prohibitive"—premiums by the Bill. I came across several cases in my research. The DRC case study No. 20 concerned a gentleman who applied for and was ultimately offered a job that was not due to start immediately. So, perfectly reasonably, he went on holiday. While he was away, he discovered that he had skin cancer. Incidentally, I have been told that the Government are considering skin cancer for the excluded list. He e-mailed his employer to explain and to delay his start date. The job offer was promptly withdrawn. Fortunately, at least in part, the DRC took up his case and a settlement was reached at £12,000 to reflect loss of income and injury to his feelings.
§ I have spoken for long enough. The fact is that such an episode should not have occurred. It would not have done if melanomas were not on the excluded list. The Government need to make a very good case indeed for having an excluded list at all. This amendment seeks to delete that list. I beg to move.
Lord CarterMy Amendment No. 78 is in this group. It approaches the cancer situation from a different angle so I shall not add to anything that the noble Lord, Lord Skelmersdale, has said on his amendment.
It seems to me that my amendment is so logical that the Minister must accept it. It states:
A cancer prescribed under sub-paragraph (2) means a cancer where the Secretary of State has reasonable grounds for believing there will be no risk of discrimination if the cancer is prescribed.Presumably, there is no chance that the Government would wish to prescribe a cancer if they thought there was a risk of discrimination, so they would be going through the process anyway. It would subject the prescription of a cancer to the test of unjustified discrimination on the basis of a cancer diagnosis where assessed as minimal by an independent body charged with giving advice to the Secretary of State.This amendment would link the exclusion of a person with a specific type of cancer from the protection of the Bill with the level of discrimination experienced as a result of being diagnosed with cancer as opposed to simply the initial treatment of the cancer. It would thereby recognise that, as with MS and HIV, discrimination against a person diagnosed with cancer is often made on the basis of the diagnosis of cancer per se rather than the type of cancer and the unpredictability of the condition. In the case of cancer, the presumption is of an increased likelihood of recurrence, even if an individual has had a minor cancer or has made a good recovery. It would only require the Secretary of State to demonstrate that there has been an assessment of the risk of discrimination attached to the prescription of a cancer.
It is worth pointing out that the Under-Secretary of State, Maria Eagle, in a letter to Roger Berry, said that:
People with cancer experience disability discrimination based on stigma from the point at which a diagnosis was made. Cancer is no different from HIV in this respect355GC Since, in deciding whether they should prescribe a cancer under the Bill, the Government will have to go through the process of satisfying themselves that the prescription will not produce discrimination, Amendment No. 78 is entirely logical.
§ Lord SkelmersdaleBefore the noble Lord, Lord Carter, finishes, can he identify any forms of cancer that would fall within the scope of his amendment? If there is none, I should have thought that the correct answer would be to leave out the exclusion subsection to which I referred just now.
§ 5.45 p.m.
Lord CarterI do not understand the point. I thought that this concerned the process by which the Government decide to prescribe a cancer; it is not linked to types of cancer. I presume that when the Government are drafting a regulation to prescribe a cancer, they will satisfy themselves that it is not the sort of thing that would risk discrimination. In other words, they must be satisfied that having the cancer does not produce discrimination and that it is safe to prescribe it and to remove it from the prescription of the DDA. This requires them to go through that process; that is all.
§ Lord Ashley of StokeI am afraid that the Government's provision in the Bill is a prescription for confusion. As the noble Lord, Lord Skelmersdale, said, there will be two lists of cancer sufferers. I cannot believe that the great British public will be able to identify clearly which is which. The fact is that cancer is a bombshell. It has a shattering impact. It does not matter what kind of cancer it is, small or large, serious or non-serious, it will automatically attract stigma and discrimination. I sympathise with my noble friend Lord Carter, but I do not agree with him on this one. I think that the remedy proposed by the noble Lord, Lord Skelmersdale, is far better: to eliminate the provision altogether. In that way we will avoid confusion. There is no nonsense about it. There is no chance of people getting mixed up about who has cancer and who does not.
If this provision is allowed to stand, many people will suffer. In its briefing, Macmillan Cancer Relief says that if these amendments are not carried, the power to discriminate against people with cancer will be enshrined within the very legislation that people hope will protect them. I agree.
I cannot for the life of me see what the Government would gain by this provision. Cancer sufferers certainly will not gain. I hope that the amendment of the noble Lord, Lord Skelmersdale, will be accepted.
§ Lord AddingtonPerhaps I can weigh into this debate. I believe that this is an occasion when the noble Lord, Lord Carter, is being a little too subtle. The noble Lord, Lord Skelmersdale, was probably guilty of that once or twice a little earlier today. I am afraid that the club is probably more appropriate on this occasion. Discrimination is generally based on ignorance and perception. Someone may say that they have, "A cancer—but it is only this type; it is not really 356GC that bad", but people will have stopped listening after the word "cancer". That is not true of the informed— those who know and have information about what is going on.
In any area of disability where it is not absolutely obvious what you are talking about—as I know from personal experience in dealing with matters for myself and many others—preconceptions will come blasting to the fore. They arrive like a train. Unless there is provision along the lines of that proposed by the noble Lord, Lord Skelmersdale, we will not really be addressing the issue. It is not a big change. If the disability is not very minor, it will just not occur to many people that it can be dealt with and got rid of.
On the amendment proposed by the noble Lord, Lord Carter, it would be quite fun to watch people trying to decide what had happened in a given case. As I said, it does not deal with the main problem. The noble Lord, Lord Skelmersdale, is addressing the issue. You cannot make a snap judgment. You must fall back on the basic concept that you must know what the person is about, not some preconception about the person. I hope that the Government accept that.
§ Baroness Darcy de KnaythI totally agree with the amendment proposed by the noble Lord, Lord Skelmersdale, for the reasons that the noble Lords, Lord Addington and Lord Ashley, have just given.
Lord CarterThe noble Lord, Lord Addington, said that I was being subtle. I had the impression that the Minister might not accept the amendment proposed by the noble Lord, Lord Skelmersdale, on the basis of the response it received in the Joint Committee. The Government said:
Our view remains that there is still a need for such a power given that quick and effective treatment is available for a range of very minor cancers, which would not normally be considered as disabilities".I imagine that that will be the thrust of the Minister's answer. They went on to say:When and how we use the power will be subject to public consultation".The Government may think that such amendment is unacceptable, but they should spell out the process that I am sure the department will have to go through in deciding to prescribe these minor cancers in order to satisfy themselves that they are not producing any discrimination.
§ Baroness Hollis of HeighamI have some sympathy with the spirit of my noble friend's amendment, although I am advised that as drafted it would not work. I do not know whether it could; one would have to consider that. But I do take issue with the notion that, once a person has had cancer, he will always be protected by the DDA. Within my circle of friends and family, I have known people have a simple cancerous mole excised and that has been the end of the story. Are we saying that such a person is to be protected by the DDA for the rest of his life when there is no evidence of impairment, or certainly substantial impairment, to his life?
357GC Other members of my circle of friends and family have had abnormal cancerous cells in the cervix excised by laser treatment with a single intervention— a very quick day procedure—and have experienced no further problems thereafter. Are we saying that, because that situation is associated with the word "cancer", as the noble Lord, Lord Addington, said, it should also thereafter enjoy the protection of the DDA?
I shall come back to the point concerning insurance because I think that it is valid and something we should take seriously. But I find it difficult to accept the argument that because something is called "cancer"— in other words, it is associated with damaged cells—it is different from, say, angina, a heart condition, or a circulatory disease. Surely what matters is the effect on someone's life—that is, whether there is an impairment which has a substantial, adverse and long-term effect on their daily life.
Many Members of your Lordships' House have had both forms of treatment—either laser treatment on cancerous cells in the womb or a single skin melanoma—and I think that they would be quite startled to find themselves, according to the arguments that we have heard today, covered by the DDA. They would be amazed. To that extent, I am not persuaded by what I have heard.
Perhaps I may stand back for a moment. What we are proposing in the Bill is not to cover cancer for the first time but, in most cases, to bring forward the point at which a person with cancer meets the definition of "disability". We recognise that discrimination can occur in a symptomatic cancer, which is a continuing condition. Clause 17 contains an extension to the definition of "disability" to cover more people in the pre-symptomatic stage. I think we all agree on that point.
In the case of cancer, we have made that definition subject to a regulation-making power to exclude cancers of a prescribed description. We are not including cancers and stating which of them should be protected, but we are excluding those of the type that I have mentioned where it seems to us not so much that the condition is trivial—clearly if it were not treated, it would not be trivial—but where the treatment does not merit its inclusion.
§ Lord SkelmersdaleWhat about breast cancer?
§ Baroness Hollis of HeighamI do not for a moment suggest that the measure would not cover someone who had breast cancer or a lump that required continuous treatment, including a biopsy, and where, if the lump were found to be malignant, chemotherapy or possibly even a mastectomy would be generated as a result. That would seem to me to be a clear example of DDA activity. But I am hard pushed to see how a single intervention would fit in here. I give way to the noble Lord.
§ Lord SkelmersdaleI tried very hard in my opening speech to get away from medical arguments. However, I am advised by one of the medical fraternity in your 358GC Lordships' House that a melanoma which is more than one-sixteenth of a millimetre deep is most likely to lead to more serious and spreading cancer. Therefore it depends, first, on how serious it is at the time of identification and, secondly, on the treatment being successful—which, as we all know, is not always the case.
§ Baroness Hollis of HeighamI accept that. If the treatment is unsuccessful and the cancer continues, it then comes down to the definition of the coverage of the DDA. I am trying to isolate the cancers—perhaps it is unfortunate that we call them "cancers" rather than anything else—which, to the best of my knowledge and according to my family and personal experience are one-off incidents which receive a one-off treatment and from which there is no further effect on daily life and no further treatment. Again, for members of my family who have had such treatment— for, for example, cancerous cells in the womb that required laser treatment—the intervention was slightly less dramatic than when my son needed surgery for a broken collarbone. He continues to have aches and pains, while the other member of my family has suffered no such consequences.
I think that the difference between us is quite small. There is clearly strong feeling and we are considering all the issues, but we published a consultation document on 18 December. It is clear that quick and effective treatment is available for a range of very minor cancers that would not normally be considered as disabilities. We are keeping the regulation-making power in case it is needed but, at present, the five named cancers, including basal cell carcinomas; most squamous cell carcinomas of the skin; Bowen's disease, which is another kind of skin cancer; in-situ skin cancers that do not affect the full skin thickness— that may return us to my noble friend's point—and can be treated simply and easily; and in situ cancer of the cervix, which can be successfully treated by cone biopsy, which, from my experience, is normally done by laser treatment and, for those people whom I know who have had it, is a very minor procedure.
Those five examples cover 80,000 cases each year that we consider do not require substantial and ongoing treatment. Such minor treatment could be excision or laser treatment. The basic idea of such treatments is surgically to remove the abnormal tissue. I absolutely take the point about when the disease is diagnosed and that it could therefore have progressed further. In that case, it would fall under the coverage of the DDA. This covers where the procedure is minor and people will have no real need to advise their employer of the treatment, other than to say that they need time off to see the doctor—perhaps a day or half a day.
§ Baroness Darcy de KnaythI simply do not understand the argument. If people's particular cancer is not causing discrimination, they would have no need to plead the DDA.
§ Baroness Hollis of HeighamThat is my point precisely. The point is that the amendment would include 359GC cancers to be covered in respect of the DDA without any evidence that discrimination has occurred, that the condition is ongoing; that it is substantial; or that it has an adverse effect on people's ability to carry on their usual day-to-day living.
§ Baroness Darcy de KnaythThat is one element: the person who does not have a cancer that is affecting his life. But the same sort of cancer may lead to something serious, as we have heard, and those people will need the protection of the DDA. It is much more about perception than anything else. HIV, which has carte blanche, is much the same, is it not? Did not the Minister cite Maria Eagle as saying that?
§ Baroness Hollis of HeighamThe noble Baroness made two very different points. The first was that the disease may lead on to something. In that case—this is rather like our debate on mental health—if whatever it leads on to produces an impairment that is sufficiently severe, that will be covered by the DDA. But the noble Baroness is arguing the opposite: that it does not matter whether it is significant, it is the perception that counts. I know that a number of noble Lords have had treatment for cell melanoma. You see them come to the House with a plaster on their skin; if you ask them what it is for, they will tell you. A week or so later, the plaster is off. They would be amazed to think that people would continue to discriminate against them and that they should fall within the coverage of the DDA.
So that is the line that I am treading. Where I wanted to be accommodating is that there are powers to move, should it be deemed wise to do so. I come back to the point that the noble Lord, Lord Skelmersdale, spent much of his speech on. Such cancers—skin cancers, abnormal cancerous cells of the uterus, and so on— may require only minor, modest treatment of the level of intrusiveness of laser treatment on an eye for a cataract. I will not say that that is the case always, it depends on the severity of the condition, the point of intervention and so on. However, in my experience, it can be no more invasive than that. It would be bizarre to regard that level of minor complaint as coming within the protection of the DDA.
§ Lord Ashley of StokeSurely, the point is not the intensity of the cancer, it is the intensity of people's feelings. The whole point of this discussion is that where the public perceive cancer—with a capital "C"—that is the end of it. They are then discriminated against. The whole point is that it is not the intensity of the condition, it is that of the public's perception.
§ 6 p.m
§ Baroness Hollis of HeighamIf I had had a melanoma—I have not, I have been fortunate—skin cancer and it had been cleaned up, how would anybody know that there was a perception of cancer towards me? How would they know? If I had had laser treatment—as I said, members of my family have—on cancerous cells of the womb and it was a less elaborate 360GC intervention than cataract treatment, how would anybody know? Does anybody know whether somebody has had cataract treatment?
§ Lord AddingtonI briefly make this point because I know that we are near the end. If you have to make a declaration about whether you have had any condition at any time or whether there is anything that is ongoing, it becomes apparent. If you do not understand the differences, which the noble Baroness does, then a judgment is made that you are at risk or will not be able to do your job.
§ Baroness Hollis of HeighamWhich person going in for a job who has had treatment for a melanoma three years previously, which is over and done with, is even going to think to put that down on a list of continuing medical conditions?
I am trying for the fourth time to come back to the point raised by the noble Lord, Lord Skelmersdale, on whether there is an issue, not in the situation of employment and so on, but possibly in insurance and financial services. I agree there have been issues, not so much in this area, but on things like whether you have ever been tested for HIV and so on. They produce a fear for disabled people, or anybody, that they may be caught by insurance policies which are designed to increase profitability for the company by possibly unfairly treating the individual.
Part 3 of the DDA applies to the provision of goods, facilities and services. It is unlawful for a service provider to discriminate against a disabled person for reasons related to their disability or to fail to comply with a duty to make a reasonable adjustment, without justification.
Whether that person is disabled is a relevant factor in deciding whether to provide insurance services. Regulations made under this provision will provide special rules to deal with these circumstances. They are relevant where a provider of insurance services, for a reason which relates to a disabled person's disability, treats a disabled person less favourably than it treats, or would treat, others to whom that reason does not or would not apply.
For example, a disabled person with a longer-term history of cancer—I am not talking about the one-off treatments that I was seeking to exclude for the purposes of argument—applies for a life insurance policy. The insurance company refuses to provide life insurance to him. Whether the refusal for insurance is justified will depend on the application of the special rules on insurance services.
The insurer should not adopt a general policy or practice of refusing to insure disabled people or people with particular disabilities, or of insuring such people on additional or adverse terms and conditions, unless that can be justified by reference to the special rules.
The special rules are met if the following conditions are satisfied—and this is a difficult area, so I would like to read them quickly into the record: it is in connection with insurance business carried on by the service provider; it is based on information which is relevant to the assessment of the risk to be insured; the 361GC information is from a source on which it is reasonable to rely; and the less favourable treatment is reasonable having regard to the information relied on and any other relevant factors.
For example, the wrong approach would be that a healthy woman aged 40, who has had a strong family history of breast cancer, decides to have a double prophylactic mastectomy. The operation has no complications. She makes a full recovery and remains fit and well. She then applies for critical illness insurance. Her insurers offer her either a higher premium for cancer cover or an exclusion for cancer and ignore the action she has taken to reduce her risk. Although there remains a small risk of cancer in such cases, for example in ovarian cancer, the risk is reduced significantly and that should be reflected in the terms offered.
The right approach would be a woman in a similar situation. She applies for critical illness insurance. Her family history might mean either paying a higher premium for cancer or having an exclusion from cancer. There remains a small risk, but she is offered the provision at standard rates.
I am sure the noble Lord, Lord Skelmersdale, has seen this document. I was not absolutely sure whether he was quoting from it. I read with interest that in 2003 the Association of British Insurers, the ABI, published An Insurer's Guide to the Disability Discrimination Act, which my honourable friend the Minister for Disabled people, Maria Eagle, and Bert Massie, the chair of the DRC, endorsed wholeheartedly.
That guides makes the special DDA rules on insurance completely clear. I give some examples. Section 3.2 states:
You should never rely on assumptions, stereotypes or generalisations about disabled people. All your decisions must be based on relevant information or data available at the time which will form the basis of your underwriting manual. This includes:In so far as that guide is followed, I think that disabled people should have confidence that the insurance industry is following good practice.
- actuarial or statistical data
- medical research information [and]
- medical reports about an individual".
The guide makes the special rules clear. Members of the ABI, which comprises over 90 per cent of UK insurers, are expected to abide by the code. Whether or not they do, they still have to abide by the law, operate on a best practice basis and so on.
The DRC has undertaken to monitor the industry's compliance with this code, and I understand that this work will commence later this year. If the industry—and I can give this assurance to the noble Lord, Lord Skelmersdale, in particular and to the Committee more generally—is not meeting expectations, no doubt the DRC will make appropriate recommendations on the way forward in this extremely important area.
362GC I have asked officials at the DRC for any evidence that the financial industry is not behaving appropriately. So far no evidence has been forthcoming.
Lord CarterOn the question of insurance and the prescribed cancers that my noble friend mentioned, if there was an attempt to discriminate against me, I would be able to point out that I was not disabled. Therefore, the company would not be discriminating against me on the grounds of disability. I was not disabled because the Government said so. The regulations would show that one was not disabled because that cancer was prescribed. So, if an insurer or anybody else tried to discriminate against me I could prove that I was not disabled. Is that right?
§ Lord SkelmersdaleI was going to make exactly the same point. The whole point about that document which the noble Baroness is waving around—and I quoted from a part that she has not reached; perhaps she will— is that the insurance industry's bible, if you like, is the Disability Discrimination Act. The moment you take something out of the Act it disappears, as the noble Lord, Lord Carter, has said.
§ Baroness Hollis of HeighamForgive me, but what exactly is the problem? What would happen now is that if you apply for insurance you might or might not decide to mention that you had had a one-off treatment for melanoma, say, on coming back from holiday. If the insurance company wanted to levy higher charges, you could challenge that. You could go to a different insurer or whatever, as I might change my insurers for my car. We all get different quotations— certainly, for houses in areas that are prone to subsidence. Different companies make different assessments.
If I do take the insurance and I am treated unreasonably— they may still charge me a higher premium—in that sense I would be covered by the DDA.
Lord CarterBefore the noble Lord decides what to do with his amendment, while the Minister said that my Amendment No. 78 would not work, I should like to know why so I can take advice on redrafting it for Report.
As I listened to our debate, I could not help thinking that if we had adopted the social model of disability instead of the medical model, we would not have to have discussions like this.
§ Baroness Hollis of HeighamI am assured that my noble friend's amendment would not work in terms of its drafting. However, I shall write to my noble friend in more detail.
All I said was that I am sympathetic to the spirit of the amendment. I do not say that it is something that the Government wish to pursue, but of the amendments in this group, I share the spirit set out in Amendment No. 78. However, I sought to argue—and I have to say that I have heard no refutation—that the examples I have given on the prescribed list would reasonably be covered by the ongoing DDA.
363GC A one-off intervention may be less onerous and have less impact on daily life than dealing with a broken shoulder that requires a plate to set the bone and later the plate to be removed. Such a procedure may cause problems for a year or even 18 months. However, we would not dream of including such a condition in the DDA. Cataracts might have a much more significant impact. However, if cataracts in an elderly person were associated with a more serious condition such as glaucoma or macular degeneration resulting in severe visual impairment, at that point the condition would come within the DDA. We make distinctions all the time between what constitutes an injury, a sickness and a disability. We are seeking to do that here.
I hope that, with those words, the noble Lord will feel able to withdraw his amendment.
§ Lord SkelmersdaleI have had more support on this amendment than on any over the previous days in Grand Committee. We have also heard a very vigorous defence from the noble Baroness. However, what she has so far apparently failed to appreciate is that when you fill out an insurance form, one of the questions is very simple. It has nothing to do with cancer, HIV or any other illness as such. It states: "Have you been in hospital during the past three years?". It may also have a sub-question: "If so, answer why". So there is always a point at which insurance companies come into it.
364GC As I have said, I very much regret the fact that we have had no medical expertise in Grand Committee today, although no doubt at later stages we will. However, I understand from Macmillan Cancer Relief that an apparently sleeping melanoma can erupt after five or six years, metastasise and subsequently kill someone over a period of time.
We often hear the medical fraternity talking about cancer being "in remission". I have never heard a doctor say, on any occasion—whether at a private dinner party, in your Lordships' House or anywhere else— that cancer is cured. I have never heard that said. By making various generalisations, the noble Baroness really does have to go, like Fagin, and think it out again. Until she does, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 77 and 78 not moved.]
§ Clause 17 agreed to.
§ Remaining clauses agreed to.
§ [Amendment No. 79 not moved.]
§ Schedule 1 agreed to.
§ Schedule 2 agreed to.
§ Bill reported without amendment.
§ The Committee adjourned at a quarter past six o'clock.