Examination of Witnesses (Questions 740
- 759)
WEDNESDAY 31 MARCH 2004
MS MARIA
EAGLE MP AND
MR TONY
MCNULTY
MP
Q740 Mr Clarke: I suspect that the
issue of definition will be with us every time we talk about legislation
and will be ongoing. There is one fairly serious view that I would
like to put to the Minister and it is the view which the Disability
Rights Commission has when they suggest that all progressive conditions
should be included within the definition from the point of diagnosis.
If I could add a kind of supplementary to that question which
is basically what does the Minister think of that view. How would
she explain to someone who has been diagnosed with Motor Neurone
Disease that you are planning to extend legal protection to certain
progressive conditions from diagnosis but not to them?
Maria Eagle: I would say that
they are almost certainly already included in the definition as
it currently works because people are not—somebody will
correct me if I am wrong—diagnosed with Motor Neurone Disease
until they have had some symptom. You are covered as soon as you
have had an impairment from a progressive condition if the adverse
effects are likely to become substantial in the future, even if
the adverse effect you are currently suffering either comes and
goes or is not extremely serious, that is how progressive conditions
are currently covered. With HIV and cancer you can be diagnosed,
and often are, without there being any adverse effect at all,
particularly where you can be diagnosed HIV positive ahead of
you having any symptom whatever. The point of extending the definition
in this way is to ensure that from the point of diagnosis, even
though you do not meet the definition at that time because you
have not had an adverse effect which is likely to become substantial,
you are covered because that is the point at which you might face
discrimination. In the past the stigma that has been attached
to HIV, and still is, makes that a sensible extension. The law
already covers people with HIV and cancer once they have had any
adverse impact which is likely to become substantial. We are not
including HIV and cancer for the first time, we are extending
the definition to some people who have not yet got coverage because
they have not had some adverse impact from the condition that
they have got. In respect of MS, that is included because there
has been a development in case law which threw up a problem which
we did not expect we had. We thought MS was covered, but there
was a court case which indicated that somebody who was accepted
to have MS was not covered in a surprising way. So we have taken
the opportunity of the legislation being here to make that clear.
I would say to the person with Motor Neurone Disease that they
are almost certainly already covered.
Q741 Lord Tebbit: I wonder if I could
put to the Minister the point that I have put to a number of our
other witnesses and it has extra impact from what she said earlier,
that is that more than one person in five is now regarded as disabled
in the population. There are an awful lot of us who are old, it
is a progressive condition, it always gets worse. We may not show
much disability at 65, but at my age we are beginning to show
it more and more to the irritation of everybody around us probably.
Why should you not include old age?
Maria Eagle: I understand the
point that you are making. There are many older people who would
meet the definition of disability, not simply because they are
old but because of the effects of some condition that they have.
Q742 Lord Tebbit: But you are applying,
if I may say so, a different criteria there to the criteria of
the extra conditions which are being put into the Bill now, the
named conditions.
Maria Eagle: They have always
been there. There has always been a list of progressive conditions
and named conditions in the legislation and there have been others
added in which we would not necessarily see as a disability at
all. For example, facial disfigurement does not stop you doing
anything, it is just that people react to you in a certain way
or have been known to in the past. The definition is not perfectly
logical, it does have quirks and progressive conditions can be
seen as one of the quirks of the definition. It is perfectly justifiable
for them to be there and we think that the extensions that are
in the Bill are justifiable for the reasons that I have tried
to set out. We have taken the view that we should keep those changes
to the definition to a minimum. The changes that are there, apart
from the MS one, were leaning towards inclusion and our commitment
in response to the Disability Rights Task Force. It extends coverage
to 73,000 people so it is a small extension. The point on MS was
really to cover a problem that has been thrown up by a particular
court case. Everybody thought MS was included. It is specifically
mentioned as being included, but this court case suggested it
was not, so we wanted to make that clear. That is the extent of
the changes that we wish to make.
Q743 Lord Tebbit: I think you are
on slightly dodgy ground, if I might say so, protecting legislation
which you describe as quirky.
Maria Eagle: I said the definition
could be seen as quirky, not the legislation.
Q744 Lord Tebbit: But some of us
might want to put some more quirks in. I think you could find
some difficulties at a later stage with this. Having made some
extensions, there will be an almost irresistible pressure for
more which would seem to most people to be of equal merit to those
which you are making.
Maria Eagle: I do understand the
point that is being made and it has some merit, there is no doubt
about that. If one looks at the Disability Rights Task Force Report,
which I am sure you all have—
Q745 Lord Tebbit: I take it to bed
every night, Minister!
Maria Eagle: —about half
of it is taken up with a discussion about what the definition
should be. As has already been said by another member of the Committee,
whenever we are going to discuss disability rights legislation
we could spend all the time available discussing the definition
and whether it is right. I am sure that that is true, I accept
that. I am not going to try and claim total coherence in the current
definition. It is one that was there before I came on the scene,
not that I would have done it any differently, let me make that
quite clear, but it is one that is now becoming increasingly well
known and understood by the courts and by those people who have
to meet these obligations. At a time when we are extending the
coverage of the law quite significantly we need to keep our feet
on the ground in terms of the definition and I believe this Bill
does that. The extensions that it sets out are small but necessary
and I think are defensible on that basis.
Q746 Chairman: Would not the easiest
way to deal with the problem to have a regulation making power
which allowed you to add other conditions as you get some more
surprising results from the courts?
Maria Eagle: It would certainly
be possible for us to look at regulation making powers to do such
a thing, yes.
Q747 Baroness Wilkins: We have had
a lot of evidence that people with mental health difficulties
are facing extra hurdles in meeting the definition of disabled
under the Act and that that was not intended when the Act went
through. One of the hurdles is in relation to day-to-day activities,
it is criticised for its very poor coverage for people with mental
health difficulties. Mind has suggested that `normal day-to-day
activities' should include perception of reality, ability to communicate
and ability to care for oneself. The National Autistic Society
has proposed the addition of `social interaction and communication'.
What is your response to including those kinds of activities in
order to make sure that people with mental health problems are
properly covered?
Maria Eagle: I think the reference
that we are making here is to the capacities that are set out
in the legislation rather than what the normal day-to-day activities
themselves are. I do not see any evidence to show that the present
list of capacities is causing problems or preventing people with
mental health problems from accessing rights under the law. My
department had a look at recent cases that have come before the
employment tribunal. They looked at 100 cases that came before
the employment tribunal between September last year and February
this year. Of those 100 cases, 31 had applicants who were people
with mental health problems, 27 of them were able to show that
they met the DDA definition, including those with conditions such
as depression, stress and anxiety. We also had a look at some
cases on appeal and found that there were some 42 cases which
the Employment Appeals Tribunal heard between January of last
year and December of last year. Thirteen of them had applicants
or respondents, depending on who appealed, who had a mental impairment
as their main disabled condition and there are only two who were
not able to show that they met the DDA definition and in those
cases that was because they had not produced enough medical evidence.
On the basis of that quick look at recent cases I do not accept
that there is a major problem with people being able to show that
they can meet the definition. I think the list of capacities that
is already in the legislation does not need to be changed because
many of the ones that are already there incorporate some of the
issues that have been raised by some of your other witnesses.
We do not see a major problem in this regard.
Q748 Baroness Wilkins: We have had
very conflicting evidence.
Maria Eagle: I can send you a
note of this assessment of the recent cases and that is what is
going on in the courts and we do not see from that a problem in
this regard. There is always an issue about the kind of evidence
that you need to take before a court to prove something and I
think that that can be harder with mental ill health, but there
was a helpful case in 2001 between Morgan and Staffordshire University
which indicated the sort of standard of evidence that a court
would need to see in order to come to conclusions about whether
a person met the definition or not. Most of us as lay people and
not medics do not feel ourselves particularly well qualified to
judge whether or not somebody's mental health condition is sufficient
for them to meet the DDA, therefore evidence is needed, but we
often find that where there is a problem it is because the evidence
has not been produced. That is a problem in any court case where
the claimant or applicant is not able to prove their case. We
are not seeing on the face of it a problem here.
Q749 Lord Tebbit: Minister, there
have been proposals to reduce the long-term requirement for depressive
illnesses from 12 months to six months. I wonder if the Minister
would agree that this is a very difficult area because many people
with depressive illnesses have relatively short period of illness
with quite long spells of being completely well in between and
they can easily find that they never qualify within the present
requirements of the Act. How does the Minister feel that we might
do something to help those people?
Maria Eagle: I would have to be
persuaded that we should reduce the requirement from 12 months
to six months. If we just do it for one type of condition then
there are obvious problems in respect of the additional complication
that adds in to understanding of the law. There are already some
special provisions that relate to recurring conditions that you
can find in Schedule 1, paragraph 2.2 of the DDA, which include
some depressive conditions which enable people with a mental illness
whose effects recur, such as Bipolar Disorder or schizophrenia,
to be included even though they may not have substantial effects
for a long period of time in between episodes and those people
will be covered for the entire time that they have the condition.
There is some provision now already and so I am not persuaded
that we should make this difference in the legislation just in
respect of one particular type of condition. There is evidence
in the case law that conditions such as schizophrenia, which were
always intended to be covered, are indeed covered. Whilst I understand
that some campaigners believe there is a problem here, it is not
one that we see as being anywhere near sufficient to justify changing
the definition just for that group of people.
Q750 Lord Tebbit: Minister, is it
not just possible that you are not seeing the problem because
people do not come forward as they know that under the present
legislation they are not covered? Is that not particularly so
with people with depressive illnesses which are not dramatic to
others around them but are very severely disabling and yet they
can be dropping out of the net here?
Maria Eagle: I think there is
something about depressive illness that might stop people coming
forward anyway as part of the kind of illness that we are talking
about. That is difficult to account for in any figures and it
is difficult to remove that kind of effect and see whether or
not people are coming forward as they might with other disabling
conditions. So I accept that there might be something to what
you say, but I do think that there is an issue about complicating
and changing the definition for one particular group of people
and not for others and I think that that is a very practical difficulty.
Q751 Lord Tebbit: We could have a
quirk, Minister.
Maria Eagle: We could have a quirk,
that is quite right, because there are other quirks, but at the
moment I am not persuaded we need a quirk for that one.
Q752 Lord Swinfen: Minister, at the
time of the DDA, your predecessor said in Standing Committee that
the aim of including the "clinically well recognised"
requirement for mental illnesses was to exclude "obscure
conditions unrecognised by reputable clinicians" or "moods
or minor eccentricities". Do you have any evidence which
you can produce for us that if this was removed there would be
a lot of people claiming protection under the DDA?
Maria Eagle: No, but I do not
see any evidence that the current definition is excluding people
with long-term mental impairments or illnesses. In that sense,
we would not want to be changing the definition, for all the reasons
I am now beginning to bore the Committee with, about wanting to
have some stability. The analysis of tribunal cases which I have
just referred to suggests that people with impairments like depression,
like schizophrenia, are successfully proving to the tribunal they
do meet the definition, and in that respect we do not see there
is a need to change it. We do know, and I have said this to a
degree already, that mental illnesses are by their nature difficult
for laymen, such as employers, to identify without additional
medical guidance or evidence—it is the same with courts—and
tribunal members are not medical experts, we do not expect them
to be, so it is right that people should be able to show that
with medical evidence they meet the definition, but we are certainly
not to our knowledge seeing a real problem with that occurring
at present.
Q753 Lord Swinfen: We have had evidence
though that the condition "clinically well recognised"
requirement does deter people from going to tribunals. I am wondering
whether you think it is fair that this only applies to this group
of disabled people?
Maria Eagle: I think it is fair
in the sense that the tribunal, like the employer perhaps, would
need to be able to identify that this condition is there, and
it is harder to deal with mental illness than perhaps with other
conditions. We think it works, it seems to work. We cannot detect
a problem in that looking at the tribunal cases there are a vast
number of people with these kinds of conditions who are being
excluded on the grounds they have to show this, therefore our
inclination is to keep the definition as it is for all the reasons
I have already put to the Committee.
Q754 Miss Begg: A few questions on
housing. The Law Society told the Committee that the Landlord
and Tenant Act 1927 provides insufficient protection for disabled
tenants unable to make physical improvements, for instance, as
the legislation favours the landlord. Can you provide the Committee
with some examples of cases where the Landlord and Tenant Act
has been successfully used by a disabled person to enable them
to carry out adaptations to their property?
Maria Eagle: I cannot do that
because we would not normally collect them and they would not
necessarily be reported. What I can do is say my general approach
to legislation is not to put provisions on to the statute book
if they are already there. I do not agree with the Law Society.
There are a large majority of tenants, whether disabled or not,
who want to carry out improvements to their rented premises and
have the right to bring proceedings in the county court where
the landlord unreasonably refuses consent to enable them to do
so. All council tenants, all Rent Act-protected tenants, in England
and Wales have that right under the Housing Acts of 1980 and 1985,
so do tenants of local authorities and registered social landlords
in Scotland under the Housing (Scotland) Act 2001. Often other
tenants in England and Wales have that right too under the 1927
Act or because their lease expressly says that the landlord cannot
withhold consent unreasonably. Certainly the early cases under
the 1927 Act interpreted "improvements" very widely
from the point of view of tenants, and because that Act applies
to everybody a landlord would not be able to challenge an application
under that legislation on the basis that the tenant was not disabled,
as they would be able to do if the provision was in the DDA. So
I do not agree with the Law Society, although of course I am more
than happy to listen to what the Committee has to say about this.
We certainly do want to make sure that that right is there, but
it appears on the face of it that it is already on the statute
book.
Q755 Miss Begg: Have you any idea
why there have not been many cases brought under this particular
legislation?
Maria Eagle: I do not know whether
there have or have not, we would not normally seek to collect
them, and there is no reason why many of them should be reported.
What I do know is the legislation is there, the power is there,
and therefore I am not necessarily inclined to put another thing
which says the same thing on the statute book in another place.
I am willing to be persuaded if I am wrong about this.
Q756 Miss Begg: The existing legislation
certainly does not cover communal areas, nor does it cover very
often the approaches to buildings. Have you considered whether
that should be part of the Bill, that there should be an automatic
right for someone to challenge when either the communal area around
the house or indeed the communal path to the house are affected—because
there are examples where the communal steps at the front of a
block of flats could not be adjusted because other tenants in
the block refused the consent?
Maria Eagle: This is a very difficult
area of the law. I think the landlord and tenant aspects of this
draft Bill are actually probably the most difficult area of all
the areas. There are other difficult areas in this legislation
but I think this is the most complex and difficult and the most
difficult area in which to balance the rights of disabled people
against the obligations of others. Land law is very complicated
and always has been. Can I make it clear that the Disability Rights
Task Force said quite clearly that landlords should not be required
to make physical adjustments to their premises and did not consider
common parts. That may have been an omission but I think it is
also a reflection of the fact that getting it right in this particular
area is very, very difficult. We have considered common parts
when drafting this Bill, even though no proposals were made by
the Disability Rights Task Force, and therefore coverage of this
area was not part of our manifesto commitment or our commitments
towards inclusion. We do not believe tenants should be able to
make adjustments to areas over which they have very limited rights.
In common parts in flats in England and Wales—it is different
in Scotland—a tenant would only have a right of access and
egress, they do not have any ownership rights over those and they
are not part of the demised premises. So they have fewer rights
over those than the flat itself they are living in or whatever.
Q757 Miss Begg: It has become much
more complicated with the numbers of council houses which have
been sold. When these houses were built as part of a council development
nobody thought about how you might divide the property or delineate
the communal areas and communal parts, but as these blocks of
flats have changed ownership (some are still in council ownership
and some in private ownership) it has been made very difficult
sometimes for a disabled person in, say, the council flat because
the council is quite happy to put adaptations in or a ramp but
the other people who have bought their properties in the same
block are actually blocking the ability of the tenant to do that
work.
Maria Eagle: I accept that but
the law in this area has always been very complicated. The rights
between tenants and landlords, between lessees and lessors, and
then you might have a head landlord and freeholders, is a very
complex area in which to try and balance costs and duties. There
is some assistance in the Bill. The new duties we are proposing
apply where a practice, policy or procedure makes it impossible
or unreasonably difficult to enjoy the demised premises, ie the
flat itself, or to make use of any related benefit or facility,
so that would include policies, et cetera, in respect of the common
parts. So, where reasonable, the landlord might have to install
a portable ramp. A portable ramp is not a change to the physical
features of the dwelling, so that might be reasonable. We should
not forget that as new premises are built, they need to comply
with improving standards in Part M of the Building Regulations
and the guidance which is provided in any associated improvement
documents, so over time we will see better standards and more
accessible standards in new-build property. I think we have to
remember in respect of this, and it is a very difficult area of
the law, that civil rights legislation is not the only option
when it comes to this. We do have to look at things like planning,
things like Part M, and building regs to make gradual improvements.
We have the domestic housing stock that we have, we cannot easily
make it all accessible. The rights of landlords, tenants, lessors,
lessees, sub-tenants, head landlords, is a very complicated area
to make provision for, so complicated in fact that the Task Force
was not able to deal with it at all. So we are introducing for
the first time into civil rights legislation a duty to make reasonable
adjustments in landlord and tenant relationships for the first
time, and I think that is good and ought to help, but I am not
going to sit here and pretend that this Bill will solve the problems
of accessibility in domestic dwellings, because it will not.
Q758 Miss Begg: So if it is going
to be difficult with existing premises, did the Government consider
being much more proactive in what it said that developers and
builders should do or should be obliged to do in new developments?
For instance, was any consideration given to putting an obligation
on developers that they must create a mixed development, that
there should be a proportion of any new houses built which will
be suitable for people with disabilities, or indeed, as a lot
of housing associations already do, building to barrier free standards
which are still not providing an obligation for private developers?
Maria Eagle: Not in this legislation.
You will have heard there are things flying out of ODPM about
just this kind of issue. Certainly in respect of civil rights
legislation, the merit of what this Bill proposes is that it introduces
the concept of making reasonable adjustments for landlords, tenants,
in respect of domestic dwelling houses. Despite the fact this
is a very difficult area, I believe the proposals in the Bill
will make a difference and will be an improvement, but it is not
going to solve the problem of inaccessible domestic dwellings;
I am not claiming that.
Q759 Miss Begg: So the pressure has
to be on the Office of the Deputy Prime Minister to make sure
in the building regs the kind of social inclusion and mixed developments
are taken as something which should be observed?
Maria Eagle: I am just saying
in respect of this Bill, civil rights legislation can do something
but it is not the only avenue. I think the provisions in this
Bill will help because they are introducing the concept of making
reasonable adjustments for the first time in landlord and tenant
law, but that having been said it is not going to solve by any
means the accessibility problems we have with our domestic dwellings.
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