Joint Committee on the Draft Disability Discrimination Bill

36. The DDA uses the term disability to mean impairment. The legislation only offers protection from discrimination to those who can prove they have an impairment and that it has significantly adverse effects on certain "normal day to day activities". It is not therefore the experience of disabling barriers which brings someone within the remit of the legislation but the nature and level of impairment.

37. If the DDA was based on the social model of disability, it would offer protection to anyone who could prove less favourable treatment (discrimination) on the grounds of impairment. This is the same type of protection from discrimination provided by the Race Relations Act 1976 (RRA) and the Sex Discrimination Act 1975 (SDA).

38. However, there is a crucial difference in the discrimination faced by people with impairments in comparison with other groups of people who face discrimination. If people with impairments are to experience equality of opportunity, they not only require protection from discrimination on the grounds of impairment (in the same way that minority ethnic people require protection from discrimination on the grounds of race), they also require additional action to be taken to address the disabling barriers they face. This additional action may take the form of changes to the physical environment, to public transport vehicles, the provision of specific forms of communication (turning print into Braille or tape for example), personal assistance and/or adaptations and equipment. In an employment context, their impairment may mean that they require changes to their hours or patterns of work and so on. These are all things which, under the current DDA, may be identified as reasonable adjustments.

39. The DDA contains an important element of the social model of disability in that it requires these reasonable adjustments to be made - thus addressing "disabling barriers". However, this entitlement to reasonable adjustments is limited to those who fall into certain categories and levels of impairment (as defined by Section 1 of the Act).

DRAFT BILL CHANGES

40. The extension of the definition to include people with asymptomatic HIV, cancer and multiple sclerosis from the point of diagnosis is also based on the idea that they face discrimination on the grounds of impairment (in this case, that they are likely to have an impairment in the future), despite the fact that there may not yet have been any physical effect. This can be seen as adopting an area of social model definition.

41. The Committee has received some evidence advocating the use of the social model as the basis for disability discrimination/equality legislation. Proposals from other witnesses to include all people with progressive conditions and those associated with disabled people or mistakenly thought to be disabled can also be seen as a small move towards the social model (paragraphs 56 to 63 and 100 to 109).

42. The British Council of Disabled People (BCODP) criticised the DDA and the draft bill for not using the social model. They saw the need to add specific conditions (as in the draft bill) as proof that the current definition was unhelpful and excluded people who suffered discrimination. In the end, it argued, "the detailed definition of disability will read like a legal and medical dictionary", but will not prevent people who are clearly discriminated against from being excluded from protection because their impairment is not adequately covered by the definition.[23] It added that the question of who is covered by the DDA is becoming "a legal minefield which needs expensive lawyers and doctors to interpret it and act as arbiters".[24] The BCODP argued that the law should not concentrate on level and type of impairment: it should concentrate instead on discrimination, and suggested the following definition of who would be covered by the legislation: " ... the person has a disability for the purpose of this Act if he has a physical or mental impairment or is in any way associated with such an impairment". It thought that a such a definition would not lead to frivolous claims because discrimination and its link to an impairment would still need to be proved.[25]

43. The social model approach was supported by, amongst others, the Greenwich Association of Disabled People and the Disabled People's Direct Action Network.[26] The British Paralympic Association said that the DDA should acknowledge the impact that society has on disabled people, and that the majority of barriers faced by people with physical or mental impairments were socially constructed rather than naturally occurring.[27] The Trades Union Congress (TUC) and other unions also supported the social model in principle, but in oral evidence the TUC "recognised that we are talking about a bill that amends the DDA which is founded in a medical model of disability" and therefore made suggestions for amendments within that framework.[28]

44. The DRC said it favoured using the social model of disability as the basis of a definition, but only in the longer term. Using this model would be complex, requiring a significant amount of consultation, and would inevitably delay the bill. It pointed out that nowhere in the world currently used a pure social model.[29] The Disability Charities Consortium (DCC) said they were concerned that a less than coherent approach to the definition of disability could lead to confusion. A comprehensive definition that covered all relevant conditions would mean a "...more efficient and effective use of the legislation".[30] The Discrimination Law Association commended the definition used in Irish anti disability discrimination legislation, which was based on the medical model but focused attention on the discrimination experienced by the individual.[31]

45. The Law Society suggested a two-fold approach: for direct discrimination a definition that covered everyone affected by impairment, including those affected by association or presumption; and for positive duties such as making reasonable adjustments a definition such as the DDA definition, with thresholds relating to the effects or severity of an impairment.[32]

46. The Committee received a great deal of evidence on the social model. Many witnesses supported the social model in principle. There were two approaches in practice. Some recognised practical problems in the adoption of a social model approach in the current bill and thought improvements could be made to the current definition while further consideration was given to the move to a social model of disability. Others wanted a social model definition to be introduced immediately.

47. The Committee considers that the focus of anti-discrimination legislation should be on the extent and nature of discrimination, not on the extent and nature of impairment. We therefore prefer the social model approach.

48. The DDA contains some elements of the social model approach already. For example, the concept of reasonable adjustments recognises that society has a responsibility to address disabling barriers. However, this recognition is only accorded to those who pass certain thresholds in terms of type and level of impairment.

49. We have received much evidence that the way in which these thresholds operate means that some disabled people who are clearly discriminated against have been unable to seek redress. We accept that it would be difficult to use this bill to insert a general social model definition of disability into the framework of the DDA. We have therefore limited our recommendations concerning who is covered by the DDA to amendments which we think are achievable within the current framework and which would not delay the speedy implementation of this bill. However, if the Government are to achieve their aim of "comprehensive, enforceable civil rights for disabled people against discrimination in society or at work"[33] then the current inadequacies in the DDA definition must be addressed. Many of the deficiencies we attempt to remedy in this chapter would, we believe, be overcome by focusing disability anti-discrimination legislation on the act of discrimination, and not the extent of the impairment.

50. The Committee therefore recommends that the DRC, in line with its duty to keep the working of the DDA under review, should consider and consult on whether, and if so how, the law could be amended to provide (a) protection against discrimination on the grounds of impairment, regardless of level or type of impairment and (b) entitlements to the removal of disabling barriers, and submit its recommendations to the Government.

Extending the definition of disability to include people with HIV infection, multiple sclerosis and cancer from the point of diagnosis

51. Schedule 1 to the DDA provides that people with progressive conditions which already have (or had) an effect of some kind, and which are likely in the future to produce a "substantial adverse effect", are counted as being disabled. Cancer, multiple sclerosis and muscular dystrophy are listed as examples of progressive conditions. The DDA requires that there is some effect; hence medical diagnosis of the condition is not enough to prove disability on its own.

DRAFT BILL CHANGES

52. The draft bill extends the Act's definition of disability to include people with HIV infection, multiple sclerosis and cancer from the point of diagnosis. This removes the need to show that these progressive conditions (but no others) have any current or past effect on normal day-to-day activities. The draft bill also allows for regulations to be made to exclude prescribed types of cancer.

53. The Minister for Disabled People explained that extending the definition to HIV and cancer from the point of diagnosis was recommended by the DRTF. It was possible for people with these conditions to be diagnosed without having any adverse effects or any symptoms, but they might be discriminated against immediately. Multiple sclerosis had been added because a recent court case had found, to the Government's surprise, that in that particular case a person with multiple sclerosis was not covered.[34]

54. The proposed change was welcomed by a very large number of respondents, including Macmillan Cancer Relief, the National Aids Trust and the Multiple Sclerosis Society,[35] and opposed by none.[36] There was, however, some opposition to the inclusion or use of regulation-making powers to exclude certain types of cancer.[37] Macmillan Cancer Relief gave evidence that people with cancer had a particular problem in accessing financial products, particularly travel insurance. This was said to be a growing problem as improvements in treatments and demographic changes meant people were living longer with cancer.[38] The National Centre for Independent Living (NCIL) and Greater London Action on Disability agreed that everyone with cancer was liable to face discrimination as a result of their diagnosis and hence all should be protected under the law.[39]

55. The inclusion of HIV, multiple sclerosis and cancer from the point of diagnosis has received overwhelming support. The regulation-making powers regarding certain types of cancer were criticised by all respondents who addressed this point. The Committee welcomes the extension of the definition to include HIV, cancer and multiple sclerosis from the point of diagnosis, and recommends that the Government should not take a power to exclude certain types of cancer.

Other progressive conditions

56. As the draft bill names specific progressive conditions, it is not surprising that there have been calls for other conditions also to be covered from the point of diagnosis. The Motor Neurone Disease Association drew parallels between this condition and multiple sclerosis and called for it to be treated in the same way in the bill.[40] Arthritis Care did the same for rheumatoid arthritis, and gave evidence regarding its prevalence, mortality, morbidity and cost to the NHS and the economy.[41] The British Lung Foundation gave evidence of the prevalence, mortality and morbidity associated with Chronic Obstructive Pulmonary Disease (COPD), and called for it to be included in the bill.[42] The DCC, supported by others, suggested that regulation-making powers would be a better way to include specific progressive conditions.[43] The Federation of Small Businesses did not oppose adding progressive conditions from the point of diagnosis, but advocated a prescriptive approach of listing specific conditions, and noted that "the definition of disabled people does need to be stable, certain and final".[44]

57. An alternative to this condition-by-condition approach suggested by the DRC and supported by many others was to include all progressive conditions from the point of diagnosis. They argued: "it is the nature of progressive conditions that when they start they are quite minor and that is when you start facing discrimination".[45] The Disabled Persons Transport Advisory Committee (DPTAC) noted that multiple sclerosis did not differ in kind from progressively disabling conditions like motor neurone disease and rheumatoid arthritis. The Law Society added Huntington's Disease and Parkinson's Disease as examples of conditions that would not be included from the point of diagnosis under the draft bill, and contended that the lack of consistency could lead to someone with another progressive condition claiming discrimination under the Human Rights Act 1998 (HRA).[46] The TUC argued that "it would be easier to understand … for both employee and employer to have a straightforward, blanket coverage".[47] The principle that all progressive conditions should be included from the point of diagnosis was also supported by the Royal College of Nursing, the Public and Commercial Services Union (PCS), Northern TUC, the Disability Law Service, the National Union of Teachers (NUT) and the Mayor of London.[48]

58. The Minister for Disabled People said that someone with newly diagnosed motor neurone disease (and by implication other non-listed progressive conditions) would "almost certainly" be covered by the definition already. She explained that people with HIV and cancer required special treatment because they could be diagnosed with the conditions without suffering any symptoms, yet still face discrimination. Multiple sclerosis had been added because of the uncertainty caused by a recent court case.[49] The Minister added that the definition had certain "quirks", and that the coverage of progressive conditions was one of them. The Minister also emphasized that the DDA was still being implemented, and that they wished to change the definition as little as possible to avoid confusion amongst disabled people, the courts and people with duties under the DDA.[50]

59. The Committee notes that the DRC's 2003 legislative review concluded that the case concerning multiple sclerosis referred to by the Minister had implications for other progressive conditions and that "there seems to the Commission to be a need to tackle these recurring problems with regards to progressive conditions more generally". The review also stated that there was "strong support (including from several business organisations) for the proposal that all progressive conditions are deemed to be covered from the point of diagnosis".[51]

60. The inclusion of HIV, multiple sclerosis and cancer from the point of diagnosis has received significant support from witnesses, but it clearly raises the prospect of inequality for people with other progressive conditions. Evidence to the Committee indicated substantial support for including all progressive conditions, evidence which the Committee found compelling.

61. The Government have understandable concerns about further extending coverage of progressive conditions, but we think that it would be inequitable and wrong to cover some progressive conditions from the point of diagnosis and some from the point that they have an effect on a person's ability to carry out day-to-day activities. A clear provision that all progressive conditions are to be covered from the point of diagnosis would make the legislation easier to understand. The DDA would still, as now, require that the only conditions to be covered were those which were likely in the future to cause a substantial adverse effect on the carrying out of normal day to day activities (ie. the standard DDA definition). The Government's desire not to amend the definition does not apply in this case because it is agreed that a change of some kind must be made; and revised guidance will therefore be required.

62. If, as the Government believe, most progressive conditions are likely already to be covered from the point of diagnosis because they will not be diagnosed until after they have an effect, then the improvement in clarity will have been achieved with minimal effect on individual cases. However, if the case involving multiple sclerosis cited by the Government turns out not to be unique, then the change we recommend would reduce the likelihood of unintended injustices for people with other progressive conditions.

63. The Committee recommends that all progressive conditions which are currently covered under the DDA when they begin to have an effect should be included from the point of diagnosis. This would increase clarity and certainty.

Regulation-making power

64. Furthermore, the Committee was concerned by the implications of the current uncertainty surrounding the status under the DDA of people with multiple sclerosis. The case involving multiple sclerosis referred to by the DRC in its legislative review raises the possibility that some other serious conditions may not be held to be progressive. It will not always be possible to use a timely Act of Parliament to put right any unintended consequences arising from the current complicated definition of disability in the DDA. We therefore recommend that the Government should take a regulation-making power in case further "surprising" case law indicates that the definition is not operating in the way the Government intend, which will enable such conditions clearly to be brought within the scope of the DDA.

Coverage by the DDA of people with mental health problems

65. The Committee received a substantial amount of evidence arguing that people with mental health problems were inadequately protected by the DDA. Three key specific proposals were made by many witnesses: removal of the need for mental illnesses to be clinically well-recognised; amendments to the list of activities in Schedule 1 which is used to determine whether someone is unable to carry out "normal day-to-day activities"; and changes to the definition of "long-term" (usually 12 months) for people who suffer from depression.

66. According to Mind one in seven of the population will have a period of mental ill-health. Mind quoted research from the early 1990s that showed that 47% of mental health service users wanted help in gaining employment.[52] The latest official estimate of people of working age who meet the DDA definition of disability includes an estimated 620,000 people with a mental illness of some kind. Within this group 21% were in employment, compared with 52% of those with other disabilities and 80% of people without DDA disabilities.[53] The Royal College of Psychiatrists (RCP) said that between 30% and 40% of people with mental health problems were capable of holding down a job.[54] The Citizens Advice Bureau (CAB) highlighted the difficulties those with mental health problems faced in keeping their jobs during a phase of illness, or getting back into employment. Stigma, prejudice and discrimination in the workplace were "near universally cited" by people with mental health problems as the main reason for giving up work or trying to get a job.[55]

67. Mind's specific proposals are detailed later in this chapter. In general it saw them as corrections, rather than extensions, to ensure that groups who were originally intended to be covered were included under the definition. It recognised that "there is an understandable political reason not to wish to expand the definition": its approach was therefore to identify and address specific unintended consequences in the implementation of the DDA.[56] Mind added that it had examined the definitions of disability used in about 20 countries and further international and regional standards and had "found no definition that, on its terms, is so disadvantageous to people with mental health problems as is the case in the United Kingdom law".[57]

68. The Minister for Disabled People gave evidence of a recent review of cases carried out by her department. This found that 27 of 31 (87%) applicants at employment tribunals with mental health problems met the definition. 11 of 13 were also successful at appeal. These figures covered a total of 142 cases and appeals heard over a few months from the end of 2003 and the start of 2004. The Minister said that "on the basis of that quick look at recent cases I do not accept that there is a major problem being able to show that they can meet the definition".[58]

69. These figures are in stark contrast to published monitoring data on the DDA. DRC research shows that between 1998 and 2000 the largest group (42 out of 210) who failed to meet the definition at employment tribunals were those with mental health problems.[59] The proportion of tribunal cases where people with mental health problems were found to be disabled was much lower than for physical disabilities.[60] DWP data on almost 9000 Part 2 cases up to September 2000 found that just 15.3% of applicants[61] with a mental impairment were held to meet the definition. This compared with 58% of applicants with physical impairments.[62] Other recent research commissioned by the DWP and DRC reported that challenges to an applicant's status as a disabled person appeared to be more common in cases where people had mental health problems.[63] It also found confusion among applicants and respondents about the definition of disability in general, and mental health conditions in particular.[64]

70. There is therefore substantial evidence that people with mental ill-health have had major problems in showing they meet the definition. It is possible that the situation has recently improved, but on balance, the weight of evidence suggests that people with a mental illness do find it difficult to prove that they are disabled under the DDA. The following sections consider whether the definition could and should be amended as a result.

"Clinically well-recognised" mental illnesses

71. Paragraph 1(1) of Schedule 1 to the DDA specifies that mental impairments must be "clinically well-recognised" in order to be covered. Statutory guidance states that this means it must be recognised by a respected body of medical opinion. It is "very likely" that this means those specifically mentioned in the World Health Organisation's International Classification of Diseases (ICD).[65] This restriction applies only to mental impairments, not to any forms of physical impairment.

72. Many witnesses agreed that requiring people with mental illnesses to prove that their conditions are "clinically well recognised" either causes them difficulties or discriminates against them. The overwhelming view was that it should be removed.

73. A number of submissions mentioned comments made by William Hague MP, then Minister for Disabled People, during the passage into law of the DDA in 1995:

"We are clear also that it is no function of the Bill to cover moods or mild eccentricities and to say that they constitute a disability, nor do we want to open up the possibility of claims based on obscure conditions unrecognised by reputable clinicians, which courts and tribunals would find extremely difficult to assess … we need to make it clear that the Bill does not cover the kind of mild or tendentious conditions that I mentioned. That is the purpose of the first item in schedule 1(1)."[66]

74. The DRC said that there is no evidence that this restriction has fulfilled this role, and reported that research and a review of cases showed that the requirement disadvantaged people with genuine mental health conditions. The DRC countered claims that removing the "clinically well recognised" requirement could lead to abuse of the law by pointing out that individuals would still need to prove that their impairment caused substantial long-term adverse effects.[67] The third monitoring report commissioned by the DWP and DRC reported that applicants whose disability was challenged by the respondent found the need to provide medical evidence of their condition costly, upsetting and stressful.[68] The RCP supported the DRC's analysis of case law.[69] It did not believe that diagnosis was irrelevant, but argued that functioning and impairment were key, and that cases and diagnoses were often not clear-cut.[70]

75. The DCC said that the fact that the requirement applied only to mental impairments was contrary to the anti-discrimination principle.[71] Mind focussed on the effects of disagreements between psychiatrists, which could mean that more experts had to be drafted in, leading in turn to higher costs, a more intimidating atmosphere and potentially putting people off from pursuing cases in the first place.[72] The DWP's own research has found that many tribunals put significant reliance on medical evidence to determine whether someone is disabled, "a factor which is likely to increase the costs of bringing and defending tribunal claims".[73] The British Psychological Society (BPS) noted that there is considerable controversy over areas such as attention deficit disorder and autism spectrum disorders.[74]

76. Support for removing the requirement that mental illness should be clinically well recognised was also received from the CAB, the TUC, PCS, Turning Point, Disability Agenda Scotland, the Northern TUC, John Grooms, the Royal Association for Disability and Rehabilitation (RADAR), the NUT, the Mayor of London and the Labour Party Disabled Members Group.[75]

77. The Minister for Disabled People said that mental illnesses could be difficult for a layman, including a tribunal member, to understand and that "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".[76] However, the recent third monitoring report commissioned by the DWP and 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".[77]

78. The Minister also said that the case of Morgan v Staffordshire University was helpful because it indicated the standard of evidence required.[78] This case found that the applicant's level and duration of mental illness met the DDA criteria of "substantial and long-term" but that, as the medical notes had not been able to locate precisely where the condition fitted in the international classification of diseases, it was not possible to say that it was clinically well recognised. The case was, however, cited by Mind and others as making matters more difficult for people with mental illnesses, and the Equal Opportunities Review said that "this is an important decision because it marks a significant tightening up of the evidential standard for establishing a mental impairment consisting of a mental illness".[79]

79. The Minister argued that medical evidence of a condition was needed. We agree with this. We think, however, that as with other types of impairment the evidence should be required to establish what effect the condition is having on the person and his or her ability to carry out normal day-to-day activities, not to find a clinically well recognised name for the condition. The DDA requires mental health conditions to be "clinically well-recognised", but not physical impairments. The fact that the DDA makes it harder for people with mental illnesses to gain protection from discrimination than those with physical illnesses seems in itself to be discriminatory. We therefore recommend the removal of the requirement that mental illnesses must be "clinically well recognised": the requirement should instead be that medical evidence must establish the effect of the condition on the person.

Additions and amendments to the list of normal day-to-day activities

80. The list of day-to-day activities in Schedule 1 is:

(a) mobility;

(b) manual dexterity;

(d) continence;

(e) ability to lift, carry or otherwise move everyday objects;

(f) speech, hearing or eyesight;

(g) memory or ability to concentrate, learn or understand; or

(h) perception of the risk of physical danger.

In most cases, in order to be covered by the DDA, a person's condition must have a substantial adverse and long-term effect on that person's ability to carry out at least one of these activities.

81. According to Mind and the DRC, experience has shown that the current list of day-to-day activities does not really reflect the reality of the impact of mental illness on people. They and many other witnesses proposed that the list be revised to reflect better "the original policy intention behind the legislation": that people with serious mental illnesses should be protected from discrimination.[80] People with mental illnesses must currently attempt to bring themselves within either (g) the ability to concentrate, learn or understand or (h) the perception of risk of physical danger. The DRC argued that someone with severe depression who lost the ability to communicate with others; and someone who was self-harming (clearly perceiving the danger involved, but choosing to ignore it), would not be protected under the DDA.

82. Mind said that people with mental health problems had to twist their evidence to fit under "the ability to concentrate". Numerous cases were argued to have shown how difficult it was to come within that activity.[81] Mind cited the case of Hancock v Essex Council as an example of someone with severe depression who did not meet the definition because his notes said he was cognitively intact.[82] The Committee heard from Gerald Jones how severe depression affected his ability to care for himself but that he would have difficulty in fitting into the specific activity "ability to concentrate".[83] Mind also believed that people with schizophrenia, anorexia and other eating disorders did not easily fit into the list. The National Autistic Society gave details of a case where a person with Asperger's Syndrome lost initially because the tribunal ruled they could not take into account the person's ability to interact and communicate with others because such factors were not listed.[84] The BPS and John Grooms argued that people with brain injury could find it difficult to bring themselves under one of the listed activities.[85]

83. The DRC recommended that the list be revised to include "the ability to communicate with others" and to ensure that self-harming behaviour was covered.[86] Other witnesses were broadly supportive of the DRC's position, though a range of different amendments were proposed. These are summarised below.

"The ability to communicate with others" and more clarity regarding self-harm [87]
"The ability to communicate, ability to care for oneself and the perception of reality" [88]
"A person's thought processes, perception of reality, emotions or judgement" [89]
"Social interaction and communication" [90]
"Communicate and interact with others" [91]
"Understand social clues" [92]
"The perception of reality; behaviour; communication and judgement" [93]

84. The Minister for Disabled People cited evidence from a small review of cases (see paragraph 68) to support the view that the present list of capacities did not cause difficulties for people with mental health problems in accessing protection under the law. She said that "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".[94]

85. This issue has caused concern since the inception of the DDA. At the time the DDA was going through Parliament in 1995 the then Minister for Disabled People, William Hague MP, admitted that the list of normal day-to-day activities could be improved upon:

"The relationship of mental illness to "ability to carry out day-to-day activities" is … difficult to set down. In practice, there will be little difficulty in the case of mental impairments such as learning difficulties, which are already specifically mentioned in the list of day-to-day activities. We are considering how the list might be amended to improve coverage of mental impairments, including mental illnesses. We would be happy to consider suggestions."[95]

But no further changes were made to the list of activities.

86. A great deal of evidence suggests that the definition of "day-to-day activities" is not operating in the way in which it was originally intended. Proposed amendments by witnesses concentrated on four elements thought to be inadequately covered by the existing list: ability to care for oneself, communication, interaction with others, and perception of reality and judgement.

87. Evidence from Mind stated that it is difficult to estimate how many more people would be included from any one set of recommendations.[96] Rethink said that in total they would affect no more than 95,000 people in employment with mental health problems and 200,000 relating to goods and services.[97] It appears to the Committee that these are people who were meant to be covered by the DDA in the first place and as such the change would simply implement the original policy intention. The Government's own figures on the total number of people in Great Britain with a disability, given in paragraph 33, certainly already include a significant number of people with mental illnesses. It is the Government's contention that people with disorders of the kind mentioned in evidence may well already be able to prove that they are covered by the DDA: revisions to the list of normal day-to-day activities should therefore do no more than provide welcome clarity in a difficult area, something employers told us they would welcome.

88. The Committee recommends the addition of the following activities to the list of "normal day-to-day activities" in Schedule 1:

ability to care for oneself
ability to communicate and interact with others
perception of reality.

Long-term effects requirement for people suffering from depression

89. The effects of an impairment are deemed to be long-term if it has lasted at least 12 months; or it is likely to last at least 12 months or the rest of the affected person's life. If the effects of an impairment stop, but are likely to recur, then it is treated as long-term. Guidance states that "likely to recur" means that it is more likely than not.[98]

90. The DRC argued that the long-term effects requirement caused difficulties for people with depression, as bouts of depression usually lasted less than 12 months. The DRC recommended that the long-term effects requirement be reduced to six months for people with depression.[99]

91. Again the evidence received was generally supportive of this proposal.[100] A number of submissions highlighted guidelines from the National Institute for Clinical Excellence which stated that depression is a time-limited disorder lasting up to six months,[101] and also that people with depression are generally more able to work than those with other mental health problems. Mind quoted two sources on the duration of depression; ICD10 which stated that the median length was six months; and the American Diagnostic and Statistical Manual which gave four months as typical for a major depressive episode.[102] The DCC said that clinical disagreements about the aetiology and underlying mechanisms could mean that recurring episodes did not fit in with the current definition.[103] The RCP said that depression could be classed as an impairment that recurs, rather than a continuing impairment with recurring effects, and hence be outside the definition.[104]

92. Mind argued that discrimination against people with depression was common in insurance, employment and training.[105] The Committee also heard from Gerald Jones of his experiences of direct discrimination as a result of his history of depression.[106] Mind outlined a recent example where someone with depression met every aspect of the definition except that they began to recover after about five months.[107] Rethink said that a six month duration test would include around half of severe depressive episodes and was long enough to make it less likely that short-lived stress related reactions - with smaller degrees of impairment - would be included.[108]

93. The Law Society called for further consultation, recognising a concern that reducing the time limit could lead to abuse through people claiming for short-term conditions.[109] The BPS were not as concerned as other groups about the duration of illness. They believed that reducing the long-term effects duration for one impairment only would produce inequity. Such questions balanced the cost to Government and employers with the rights of disabled people and were "essentially political".[110]

94. The DCC said they understood the concern that a change to the definition of long-term could lead to an increase in inappropriate cases, but contended that this would not be a problem as people would still have to prove discrimination, and that the stigma attached to mental health problems was such that people would be unlikely to "vote" themselves into this category. They pointed out that countries like Australia and the United States that had wider definitions had faced no such problems.[111]

95. The Minister for Disabled People told the Committee that she would need to be persuaded that the long-term requirement should be reduced to six months for depression. She pointed out the recurrent effects provision and said that this meant conditions such as bipolar disorder and schizophrenia were included. The problems highlighted in the evidence given to the Committee were not seen as "…being anywhere near sufficient to justify changing the definition just for that group of people".[112] She did accept that people with depression might be less likely to bring a case under the DDA, but said the actual effect was difficult to quantify.[113]

96. During the passage of the DDA into law William Hague MP mentioned depression along with other "commonsense" examples of mental illnesses where the person affected would be classed as disabled.[114] Official statistics on the population covered by the DDA definition of disability include depression in the list of health problems/disabilities.[115]

97. As with the other mental health areas many witnesses favoured reducing the longterm effects requirement to six months for people with depression and improved clarity in the guidance on recurrent conditions. The Minister said that the recurrent effects provision could cover some depressive conditions, but other evidence suggests problems in proving that people with depression have an underlying condition, rather than suffering from a series of separate episodes.

98. The suggestion to cut the long-term effects requirement to six months for depression would introduce an inequality into the definition, but, it could be argued, one that is intended to counteract an existing inequality. The evidence has suggested that people with depression are subject to considerable discrimination yet are more likely to be able to work than people with other mental health problems. Official statistics show that the employment rate of the estimated 440,000 people of working age who meet the DDA definition due to depression or anxiety is around 24%, compared with 16% for people with other types of mental illness.[116] This seems to the Committee to be a category of people who ought to be protected from discrimination.

99. The Committee recommends that people experiencing separate periods of depression totalling six months over a two-year period should be considered to meet the "long-term" requirement.

People associated with disabled people and those wrongly identified as being disabled

100. The DRC reported cases where individuals have faced discrimination either because they were (falsely) perceived to be disabled or because of their association with a disabled person.[117] The DDA does not protect such people against discrimination, and the draft bill makes no change to this. The DRC argued that under the EC Employment Framework Directive[118] the United Kingdom is required to protect such people against discrimination, and that the DDA needs to be changed accordingly. Article 1 of the Directive states its purpose as laying down a general framework for combating discrimination on "the grounds of" disability, sexual orientation, religion or belief and age. Article 2 states that "direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1," and harassment similarly refers to unwanted conduct related to any of the grounds referred to in Article 1. The Directive permits positive action on any of the grounds referred to in Article 1. In contrast, when the Directive imposes a duty only in relation to disabled people this is stated explicitly; the duty to provide reasonable accommodation in Article 5 requires employers to "take appropriate measures where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment".

101. The Government have implemented the Directive in relation to discrimination on grounds of sexual orientation and religion and belief by way of two sets of regulations that came into force in December 2003.[119] The regulations provide that direct discrimination is less favourable treatment on grounds of religion or belief / sexual orientation. The explanatory notes to the regulations published by the DTI explain that:

"24. The phrase "on grounds of sexual orientation / religion or belief" (rather than "on grounds of his/her sexual orientation / religion or belief") follows the formula used in the RRA ("on racial grounds"), which has been interpreted broadly by the courts and tribunals. The wider formula means that discrimination based on perception, association or instructions is covered as described below."

"Direct discrimination: perception

25. Direct discrimination "on grounds of sexual orientation / religion or belief" can also include discrimination based on A's perception of B's sexual orientation /religion or belief, whether the perception is right or wrong ..."

"Direct discrimination: association

26. In addition, direct discrimination "on grounds of sexual orientation / religion or belief" covers discrimination against a person by reason of the sexual orientation / religion or belief of someone with whom the person associates. For example, an employee may be treated less favourably because of the religion of his or her partner, or because his or her son is gay."

102. The Government's interpretation of the Directive and the United Kingdom's obligations is different from that of the DRC. In correspondence with the DRC the Minister for Disabled People stated:

"I do not believe that the Directive requires us to cover perception and association…. if the EC legislature had intended the Directive to cover (for example) association, it could and would have so provided"

"Secondly, the wide interpretation of the term "racial grounds" upon which you rely, if applied to disability discrimination under the Directive, would seem to lead to the result that discrimination against a non-disabled person refused a job reserved for a disabled person would contravene the Directive. This interpretation of the Directive would seem to undermine the DDA's protection for disabled people, by restricting the circumstances in which more favourable treatment of disabled people (or less favourable treatment of non-disabled people) would be lawful."[120]

In evidence to the Committee the Minister confirmed the Government's view that they had transposed the Directive correctly, and added that it was not sensible to extend the definition in ways that made it less certain, given that the DDA was being applied to one million small employers from October.[121]

103. The DRC's interpretation of the Directive was supported by the Discrimination Law Association,[122] and its recommendation to amend the DDA to include protection for people associated with a disabled person or perceived to be disabled received general support from PCS, the Royal College of Nurses (RCN), the Equality Commission for Northern Ireland (ECNI) and the Commission for Racial Equality (CRE).[123]

104. The National Aids Trust argued that there was discrimination against those who cared for people with HIV and groups with whom HIV is associated in the public mind, such as gay men, black Africans, injecting drug users, family members of those with HIV, carers and health professionals working in the field.[124] The Law Society pointed out that the definition used in the Americans with Disabilities Act included those who have an association with disabled people. If this group was included in the definition of disability they would still need to show they were treated less favourably, without justification, for reasons to do with their connection to a disabled person.[125]

105. The DDA in its present form could be said to be somewhat inconsistent on this point, since it includes as "disabled" someone who has had a disability in the past. If they were to be discriminated against, it would effectively be because they were falsely perceived as being affected by this impairment at present or in the future. Thus currently the DDA protects only people whose past experience of impairment creates a "false perception" but not people whose other experiences or characteristics may create a "false perception".

106. The most important consideration on this point is whether the United Kingdom has fully met its obligation to transpose the EC Employment Framework Directive in relation to disability discrimination. The Directive does not offer a definition of "on grounds of", and each Member State is allowed discretion as to how the Directive is given effect in national laws. The evidence the Committee has received from the DRC regarding the implications of the Directive is consistent with the regulations the Government has introduced to comply with this Directive in relation to other grounds. At this stage it is not known whether the European Commission is satisfied with the United Kingdom's transposition of the Directive in relation to disability; and it is too early for the European Court of Justice to have provided any legal interpretation of the provisions of this Directive.

107. To amend the DDA to prohibit discrimination on grounds of disability as specified in the Directive would, as the Minister suggested, introduce some greater symmetry into the DDA, enabling non-disabled people to complain of less favourable treatment than that given to a disabled person. However, this would not be possible in any case where the action of an employer was consistent with one of the exceptions permitted under the Directive or where the action of an employer was for the purpose of providing reasonable adjustments for a disabled person.

108. If the DDA were to be amended to prohibit direct discrimination and harassment against people who are associated with a disabled person or are perceived to be disabled, this would go some way to bring the DDA into line with laws outlawing discrimination on grounds of race, sexual orientation and religion or belief. As in the case of asymptomatic progressive conditions, the focus would move to the act of discrimination itself rather than the type and level of impairment of persons who experience discrimination. The Committee emphasizes that no person or organisation could be required to make any reasonable adjustments under such a provision: only direct discrimination, on the grounds of disability, would be prohibited, and we do not anticipate a large number of cases being brought.

109. The Committee recommends that the DDA should be amended to prohibit direct discrimination and harassment against people who are associated with a disabled person or are perceived to be disabled.

Disability benefits

110. Claimants of any disability benefits have to prove separately that they are disabled under the DDA definition, if they want to claim protection under the law.

111. The DRC recommended that the DDA should be amended so that receipt of certain state benefits should automatically mean that an individual was defined as being disabled for the purposes of the DDA. This would mean disabled people would not have to prove they were disabled twice.[126] The DCC cited a recent case in Scotland where a tribunal did not accept that receipt of Disability Living Allowance was conclusive proof that someone would be considered disabled under the DDA.[127]

112. The Government responded:

"The conditions of entitlement for each benefit are necessarily particular to that benefit and do not read across fully to the DDA definition of disability. It would be inconsistent to apply different tests of disability to different people under the DDA according to whether they were entitled to a particular benefit. The DDA applies its own effects-based definition which may be entirely different from any benefits-related test".[128]

113. There was a relatively small amount of evidence in this area, but there does seem to be a contradiction inherent in a person being eligible to receive long-term disability benefits but not being sure whether they are covered by disability anti-discrimination legislation. The proposed change would be essentially practical to make it easier for some clearly disabled people to prove their status as being disabled under the DDA. The Committee recommends that the Government review eligibility criteria for all disability benefits, and consider whether eligibility for certain disability benefits should automatically provide coverage for a disabled person under the DDA.

Armed forces

114. The DDA currently excludes from protection under Part 2 employment or service as a statutory office holder, police constable or member of a particular police force, prison officer, fire fighter or member of the armed forces. Under the DDA Amendment Regulations 2003, from October 2004 the police, prison officers and fire fighters will be fully within the scope of Part 2, but the exclusion for the armed forces will remain.

115. The armed forces are covered under the employment provisions of the RRA, SDA and the new employment equality regulations prohibiting discrimination on grounds of sexual orientation and religion or belief. The SDA does, however, include a provision exempting "an act done for the purpose of ensuring the combat effectiveness of the armed forces".[129]

116. The DRTF recommended removal of the exclusion for all of the uniformed services including the armed forces, and, in its first review of the DDA, the DRC recommended that the DDA should be extended to cover the armed forces.[130]

117. The DRC stated its concern about the continuing exemption of the armed services from the employment provisions of the DDA.[131] It referred to cases where serving members of the forces were edged out when they became disabled. Mr. Massie commented that the anxieties of the armed forces were misplaced, since "under the current Act, no employer is required to employ anybody who cannot do the job," and, as an example, argued that there is no reason why somebody with a facial disfigurement (which could be a disability under the DDA) should not be a member of the armed forces.[132] It was his view that eventually the anxieties of the armed forces would be overcome, but he did not press for the present bill to remove this exemption.

118. The Minister for Disabled People raised two matters in this regard. First, the EC Employment Framework Directive, in relation to disability discrimination in employment, permits exemption for the armed services. Secondly, "the Ministry of Defence are concerned that their service personnel, no matter what their job description or rank etcetera, have to be combat capable and able to move from one role to another sometimes with great flexibility, at short notice".[133]