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Lord Carter: We are grateful to the Minister for his helpful answer. As he says, we are trying to tease out the underlying problems of the definition. This will not be the only occasion upon which that occurs. I thank other Members of the Committee who have contributed to the debate. I wish to pick up on just a couple of points. One of them is the point made by the noble Baroness, Lady Gardner, who said that she thought the definition in the Bill was sufficiently wide. I can but quote directly from the Law Society brief:

The Law Society feels that there is a problem with the definition.

I have to admit that I was a little puzzled by the Minister's reply when he referred to learning disability being caught by Clause 1, which refers to,

    "a physical or mental impairment".

The Minister then referred back to the definition contained in paragraph 1 of Schedule 1, which provides:

    "'Mental impairment' includes an impairment resulting from or consisting of a mental illness only if it is a clinically well-recognised illness".

If mental illness is going to include learning disability and other forms of mental handicap in Clause 1, the Minister seems to be implying that mental impairment will include mental handicap if it is not a clinically well-recognised illness. We need to look again at the drafting. The Minister has made a point at which his officials might well wish to look.

There has been some confusion throughout the debate about this important distinction between mental illness and mental handicap. I repeat the point I made earlier, which was made also by my noble friend Lord Ashley. The Minister in the other place referred to moods and mild eccentricities, and the Minister referred to shyness, I believe. How are any of those terms supposed to create a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities?

There is one point upon which I would agree with the Minister. He also mentioned stubbornness. I would say that in the case of government Ministers stubbornness does have a substantial long-term adverse effect on their ability to carry out their normal day-to-day activities.

I should like to study what the Minister said about the definition we suggested from the Mental Health Act. It might not be perfect and it might be possible to come

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back at a later stage with a definition which picks up some of the points out of the Mental Health Act but not the one which the Minister fairly made. For all those reasons, I believe there is still an area of concern here. The Minister's reply began to be helpful, but we shall have to consider it. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 5 not moved.]

Baroness Hollis of Heigham moved Amendment No. 6:

Page 28, line 23, leave out ("continuing to have that effect if that") and insert ("a long-term effect if that substantial adverse").

The noble Baroness said: This too is a probing amendment but one which we believe the Government may be able to support or make clear in their reply that it is unnecessary. We think the Government intend that where someone has a substantial disability within the field of mental health but that disability is exhibited only intermittently or recurs only intermittently, nonetheless such a person is covered by the Bill.

We believe that the wording makes that insufficiently clear. MIND gave the example of someone suffering from manic depression. There may be periods of stability, interrupted, unfortunately, by periods of deep depression, followed by periods of over-active behaviour. We believe that the Government intend such a situation and such a condition to be covered.

The wording of the amendment would make that point unambiguous. We hope that the Minister will feel able to support the amendment or to persuade us that it is unnecessary, because the situation is already covered in the Government's subsequent amendments to "substantial" and "adverse". I beg to move.

Lord Renton: With respect to the noble Baroness, the amendment raises a narrow point. It is simplified—but not over-simplified I hope—by pointing out that it refers to the difference between a continuing effect and a long-term effect. That is all it is. Frankly, I am not certain that it is in the interests of disabled people to abandon the term "continuing" and to go for the term "long-term". Nor is it in the interest of those who will be affected by the provision as employers, and so on. I think on balance that it is better to keep the word "continuing". I hope that the Government too will feel that way.

4.45 p.m.

Lord Mackay of Ardbrecknish: As the Committee will be aware, to meet the definition of "disability" a person has to have an impairment which has a substantial long-term adverse effect on his ability to carry out normal day-to-day activities. But that does not adequately reflect the position of people who have impairments where the effects fluctuate—for example, arthritis—or recur, as with multiple sclerosis.

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To ensure that those people are covered, even when their impairment may have little or no effect at a particular time, there is a provision in paragraph 2(2) of Schedule 1 which says:

    "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 to be treated as continuing to have that effect if that effect is likely to recur".

In other words, it deems the substantial effects to continue during the intervening period of insubstantial effects or no effects.

However, to be covered by the definition of "disability", the person still has to fulfil the requirement of the definition in Clause 1: that the effects have to be long term—that is, they have to last or be reasonably expected to last at least 12 months. That means for a recurring condition to be a disability, as defined, at least one recurrence has to be, or be likely to be, at least 12 months after the first.

The reason why we have a requirement that the effects would be long-term is because the idea of disability does not cover temporary or short-term conditions. We believe that that is something with which most people would agree.

The effect of the amendment would be to deem a recurrent condition to be long-term however briefly after the first occurrence that the final recurrence occurs. For example, if a person has one further bout of an illness a week after the first, and then has no more relapses or recurrences ever, they would be regarded as having a disability. That would be in contrast to another person who had a single continuing illness over the same period of, say, three weeks, and recovered completely. That person would plainly not be regarded as having a disability.

I am sure that it is not the intention of the noble Baroness to cover those circumstances, but that would be what would happen. I hope that I have explained what we are looking for in this paragraph of Schedule 1. I hope that the noble Baroness will see my point and why we have put the matter the way we have, and understand that her amendment does something that I do not expect that she intended for a moment. I hope that she will withdraw it.

Baroness Hollis of Heigham: I should like to ask the Minister for a little further clarification. I take the point when he gave the example of the illness never recurring. What happens when one cannot tell? In other words, what happens where the recurrence is unpredictable and that unpredictability is part of the illness itself, as is the position with some mental health problems which are heavily dependent upon medication or something like that? Manic depression would be an obvious case. There might be an occurrence. There might, as the Minister said, be a recurrence a month later. There might then be a reasonably long period during which there were no recurrences.

What happens if that person is carrying the condition of which part of the diagnosis is that there could be a traumatic event which could trigger a recurrence? One cannot anticipate that traumatic event. It might be a bereavement, a divorce or something like that. That

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condition may then recur. Is that situation covered by the Minister's explanation? If it is, I am well content. We need some protection in that situation.

Lord Mackay of Ardbrecknish: We are getting into difficult territory. I hope that I can explain the matter. If my explanation is not quite right, I am sure that the noble Baroness will not mind me writing to her. Towards the end of her intervention, she mentioned something that might happen once and might never recur but because of some crisis in one's life, it does. One cannot look ahead to such a possibility and decide that therefore the person is disabled. I draw the noble Baroness's attention to paragraph 7. If the condition is progressive, such as multiple sclerosis, the situation is different and is dealt with after the first symptoms have become apparent. We shall deal with that matter in a moment.

I believe that the problem about which the noble Baroness is anxious is dealt with in the Bill. However, we do not want to go so far as reaching the position that I explained: that someone with a problem which lasts for three or four weeks and from which he then recovers completely can rightly not find himself covered, but someone with a problem which gets better but quickly recurs can find himself falling within the definition. I am sure that that is not what we want.

I shall read what the noble Baroness has said, and I hope that she will read what I have said. We can then consider whether we are at cross-purposes, whether I have satisfied her or whether she has raised an anxiety that I too should be anxious about.

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