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Clause 18 — Meaning of "Disability"

Disability Discrimination Bill [Lords] – in the House of Commons at 5:39 pm on 6th April 2005.

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Votes in this debate

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Work and Pensions 5:39 pm, 6th April 2005

I beg to move amendment No. 1, in page 46, line 1, leave out subsection (3).

This is the "depression amendment", which is a useful shorthand description that we are all using. It reverses the amendment introduced in the other place by removing clause 18(3), which inserts new sub-paragraph (2A) into schedule 1 to the Disability Discrimination Act 1995. The Government firmly believe that that amendment of the definition of disability is not the right thing to do.

I assure the Committee that we have thought long and hard about the new sub-paragraph (2A), but we have concluded that we cannot accept it. Fundamentally, it undermines the most basic principle of the DDA—that a disability must be a long-term or permanent condition. Under the new provision, a person with depression could qualify under the legislation as disabled after experiencing unrelated depressive episodes totalling little more than six months, and it constitutes a special arrangement for one form of mental impairment, which I believe to be unwise. It introduces the arrangement with arbitrary boundaries, which are both unfair and confusing to those trying to understand its operation, either because they have depression and want to see whether they meet the definition or because they have obligations under the law and want to see whether a particular person to whom they have those obligations qualifies.

To be absolutely clear, new sub-paragraph (2A) would extend the DDA to people who have recurrent but unconnected short-term episodes of depression in a way that would be confusing, complicated to administer and potentially unfair to other disabled people and other people with depression.

Photo of Paul Goodman Paul Goodman Shadow Minister, Work & Pensions and Welfare Reform

The Minister would confirm, would she not, that the clause includes new, radical and sensible arrangements from the point of diagnosis for those who have HIV and cancer? She therefore finds herself in the difficult position of arguing that there should be a departure in those cases but not in this one.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Work and Pensions 5:45 pm, 6th April 2005

I am not arguing against all extensions or changes to the definition, and we have thought long and hard about whether this one can be incorporated. Our difficulty is that the fundamental requirement of the Bill is that in order to be a disability a condition or impairment must be long term. We do not believe that short episodes of up to only just over six months could possibly qualify, particularly given that this relates to just one type of mental impairment. I will come on to say something about recurrence of short-term conditions; I hope that that may be helpful.

We believe that the amendment from the other place would be confusing and burdensome because everyone with duties under the 1995 Act—and the Committee should recall that we have just extended those obligations to cover 1 million small employers—would find it difficult to determine, without making extremely detailed inquiries, exactly who is covered by the new provision. It would be complicated to administer because there would be different rules to be applied depending on whether a person has depression or some other impairment. Employers, service providers and others with duties under the Act would have to keep detailed records in order to establish whether a person has met the "six months in the last five years" rule that the amendment would insert into the definition.

The amendment would be unfair to other disabled people. The majority of disabled people do not have special provisions enabling them to meet the long-term condition of the definition, and would have to prove that their impairment has lasted, or is likely to last, for at least 12 months. Creating a separate and more advantageous rule for some people with depression, but not all such people, is not fair on those other people. Moreover, people with other forms of mental illness would not be covered by the new rule. It would be unfair on other people with depression. Someone with a six-month episode followed by a one-month episode would find themselves within the definition, whereas someone with two five-month episodes would find themselves outside it. That is what I mean by saying that the amendment would impose arbitrary boundaries. It does not really make sense and therefore would not make sensible law.

It is important to recognise—people sometimes forget this—that the 1995 Act already provides protection if an impairment has recurring effects. Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is treated as continuing to have that effect if the effect is likely to recur. Conditions with substantial adverse effects that recur only sporadically or for short periods will therefore qualify for protection under the existing legislation, provided that they are part of the same underlying impairment. That will include mental illnesses such as depression.

Let me make it clear to the Committee and to those who have supported the amendment's remaining in the Bill, that our seeking to reverse it does not indicate that we take the matter of mental illness lightly. On the contrary, we have demonstrated that we are willing to listen to concerns about mental health conditions and to amend the Bill where that is appropriate and desirable. That is why we have agreed to remove the requirement that a mental illness must be clinically well recognised, thus putting mental illness on a par with other, physical, impairments in the way that they are recognised in the definition. We have promised to consider whether the statutory guidance on the definition can be improved to show more clearly how mental illnesses, including depression, are already covered by the 1995 Act.

We are committed to taking forward a wide agenda to help people with mental health impairments. Last year, the social exclusion unit published its report on mental health and social exclusion and made several very important recommendations that are now being implemented. For example, Jobcentre Plus staff are being provided with improved training on mental health issues so that they can offer a better service to clients with a mental health impairment; and the National Institute of Mental Health in England has been tasked with taking forward recommendations in the social exclusion unit report that will tackle the stigma and discrimination that people face.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

Does the hon. Lady not accept that, whereas it is easy to predict that some conditions are likely to recur, the problem with depression is its unpredictability? That is the mischief that the Lords were trying to tackle. Is she really satisfied that what she has said so far would tackle the problem? It does not seem to me that it would.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Work and Pensions

I do not seek to suggest in any way that the current definition is perfection personified and should be defended against any suggested amendment for all time. However, I do not believe that we are in a position to make a sensible amendment that is fair and proper and which achieves what is wanted by those who are trying to do something useful for people with depression. Our difficultly with the subsection is that the arbitrary nature of its drafting means that it is not useable in practical law. I will shortly make a suggestion about a potential future way forward that might satisfy the hon. Gentleman.

We certainly do not have closed minds on this issue, but I do not believe that putting impractical law on to the statute book is a way of dealing with the stigma and difficulty that those with mental ill health face. We are fully committed to improving the lives of people with mental health conditions, but this measure is not right and would go too far. If proposed new sub-paragraph (2A) is allowed to remain, it will seriously undermine one of the Act's basic tenets and the integrity of the definition of disability.

In moving the amendment, I seek the Committee's agreement on ensuring that the definition meets one of the fundamental policy objectives of the 1995 Act. The Bill is not the end of the road on disability rights. We will consider whether short-term conditions should be covered, but we believe that we should cover them strategically and across the piece, rather than covering just one type of condition. The Disability Rights Commission is reviewing whether the social model of disability can be incorporated into our legislation. We believe that that is the right and proper forum in which to consider the matter further.

Photo of Paul Goodman Paul Goodman Shadow Minister, Work & Pensions and Welfare Reform

I listened to the Minister with care and I note that she said that the Government do not take depression lightly, which I am sure they do not. She also said that the Bill is not the end of the road, which I am sure it is not, and that, were the Government to be re-elected—I must add that that is extremely doubtful—they would consider the social model in detail. However, it is extremely regrettable that they are seeking to remove subsection (3), and I want briefly to explain why.

As the Minister acknowledged and as the shadow Leader of the House, my hon. Friend Mr. Heald, pointed out a moment ago, it is widely recognised that depression can recur. It is also widely recognised that spells of depression often last for not more than six months, which is how the six-month period was arrived at. So someone who had an episode of depression would not be covered under the 1995 Act, which, in essence, stipulates that the effect of an impairment is a long-term one that has lasted, or is likely to last, for at least 12 months. As we all acknowledge, people who have had depression are sometimes discriminated against by employers. Such people are often hesitant to disclose previous episodes of depression when making job applications. Indeed, they may be deterred from applying at all.

The Joint Committee that considered the draft Bill, on which I served, recommended that people who experienced separate periods of depression totalling six months over a two-year period should be considered as meeting the long-term requirement. The Minister's colleague in the other place—Lord Carter, I believe—tabled an amendment to that effect, which the Government rejected. My noble Friend Lord Skelmersdale later tabled an amendment to protect any person with depression who had experienced during the previous five years an episode of depression lasting six months or so. Such a person would have received cover, but the Government opposed it. The other place considered it and passed the amendment.

My colleagues and I feel that the Government have somehow boxed themselves into a corner on this matter. As the Minister acknowledged when I intervened a few moments ago, there are some modifications—very welcome modifications in respect of cancer, HIV or multiple sclerosis—to the definition of disability in the clause. It would have been sensible for the Government to leave the provision in the Bill, not seek to remove it. MIND, an organisation intricately involved in working with people with depression, described the amendment as

"a step in the right direction".

The organisation also said:

"The Government's insistence on removing the amendment makes it look like it is ignoring the problem in the vain hope that it will go away. It sullies what is, in most other respects, an excellent piece of legislation."

We agree and we believe that disabled people will be puzzled by the Government's insistence on removing this provision from the Bill. I hope that they will take note of that intention in the next few weeks and beyond. If the Government press ahead and insist on removing the excellent amendment tabled by my noble Friend Lord Skelmersdale, we will divide the Committee on the issue.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

The amendment tabled in the other place also received the support of my colleagues as we felt that the circumstances of people with depression should be acknowledged more clearly in the Bill. We accept that helpful progress has been made, as the Minister said, in the context of people with mental health conditions. It has been accepted that mental illness no longer needs to be clinically recognised if it is to form the basis of mental impairment, but in a sense, that is a different point. That broadens the scope of the conditions that can be brought within the framework, but depression is clinically well recognised and we are considering whether the Bill would, without the amendment, provide sufficient protection for people who suffer from depression. Mr. Heald referred to the patterns that depression may take and there remain genuine concerns about whether people with depressive illness who suffer discrimination will be sufficiently protected by disability discrimination legislation.

The Minister made helpful reference in her introduction to the fact that further guidance may be necessary. If the Government have their way and the amendment proposed by the other place is removed, we would certainly want further discussions on the matter. That could be an alternative to having binding time limits set out in the Bill. Guidance could be sent out to the relevant public bodies, employers and so forth to inform them about the pattern of depressive illness that falls within the definition of a disability against which discrimination may occur.

That could provide a helpful way forward, but as we stand at the moment, there remains the potential for people with serious depressive illness to be discriminated against. They could find that when they turn to the law, they do not have sufficient protection. That is our motivation for seeking to maintain a provision directly in the Bill. If that falls, I hope that the Minister will be able to advise us of alternative routes to the same objective, perhaps through guidance. As the Minister said, different forms of mental illness have different patterns of recurrence. We do not wish to discriminate between them, but want to ensure that they are all properly covered.

Photo of Mr Peter Pike Mr Peter Pike Labour, Burnley

I would like to make a few brief comments. I am sorry that I missed the opening of the debate, but I was delayed and proceedings moved a little quicker than I had expected. This will probably be my last opportunity to make a short contribution to a debate in this place.

I listened carefully to what the Minister said. Her most important comment was when she said that this was not the end of the road. Clearly, the Government's record— and that of the Labour party—on the whole range of disability issues over the years has been excellent.

I have no doubt that the Government will deliver on their proposals, and that they will make further progress. A few years ago, a member of my family suffered from depression. I know that it is a very difficult problem to deal with, because it is impossible to understand what a person suffering from depression is really thinking, or how much it gets on top of them. It is very easy to tell someone that they should snap out of it, but that serves no useful purpose. In fact, it has the opposite effect.

Depression presents a real problem for medical people, as do myalgic encephalomyelitis and chronic fatigue syndrome. We are making progress on those matters, but we still have a long way to go when it comes to understanding how sufferers are affected.

I want the Bill to achieve Royal Assent, and if the amendment is forced to a Division I shall back my hon. Friend the Minister. I believe her 100 per cent. when she said that this is not the end of the road and that further progress will be made in the years ahead, after the Labour Government have been re-elected.

Question put, That the amendment be made.

The House divided: Ayes 214, Noes 98.

Division number 154 Disability Discrimination Bill [Lords] — Clause 18 — Meaning of "Disability"

Aye: 213 MPs

No: 98 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

I do not wish to delay the Committee for long this afternoon because we have a lot of other business to deal with, but I simply want to place on record the concerns that remain among Liberal Democrat Members about another aspect of clause 18: the ability to prevent, by regulation, certain types of cancer from falling within the Bill's scope.

I understand that the issue was debated at some length on Second Reading, but our concerns remain about how such things will be achieved, and in particular about how we can respond to the concerns about the possible exclusion of people who should fall within the Bill's scope that have been expressed by a lot of significant cancer charities and other bodies interested in caring for people with cancer. We are not able to do anything about that today, and it is a source of much regret among Liberal Democrat Members that we did not have the normal long Committee stage to achieve a more significant debate about an issue that is very important to people who suffer from cancer.

As I said in my opening remarks, we do not wish the Bill to fall—we want it to reach the statute book—but we would have preferred such legislation to be introduced a couple of years ago, when we might have had the time to debate such issues at greater length. I do not expect to make progress this afternoon, but I want to ensure that, as the Bill completes its stages, the outstanding concerns about how people with one type of cancer may be excluded remain on the platform for political debate. I hope that the Minister can offer at least an update on her thinking on the issue, although I realise that she would have said something about it on Second Reading and perhaps has nothing to add today, but it would be helpful if she could fill us in on where she has got to with her thinking, as she did with the previous amendment.

Question put and agreed to.

Clause 18, as amended, ordered to stand part of the Bill.

Clauses 1 to 17 and 19 ordered to stand part of the Bill

Schedules 1 and 2 agreed to.