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Baroness Hollis of Heigham: That is not exactly the question which I believe is at the core. Let me have a go at explaining exactly how the provision is meant to work. New Section 15C sets out the duty of an authority to make reasonable adjustments in relation to its disabled members and broadly follows the pattern of Part 2 of the Act which deals with employment and related matters.

An authority will be under a duty to make an adjustment where a provision, criterion or practice it applies, or which is applied on its behalf, or a physical feature of premises which it occupies or controls, places a disabled member at a substantial disadvantage in comparison with non-disabled members in relation to the carrying-out of official business. An authority will then be under a duty to take reasonable steps to prevent the provision, criterion, practice or physical feature from having that effect.

New Section 15C(3) provides that the duty in subsection (2) does not apply if the authority could not reasonably be expected to know that the member has a disability and is likely to be affected in the way mentioned in subsection (1).

New Section 15C(4) enables the Secretary of State to make regulations elaborating on the duty to make adjustments should evidence emerge that it is not practicable to follow the general approach adopted for the rest of Part 2 of the DDA.

There are no equivalent powers to those set out in new Section 15C(4) in the rest of Part 2 of the DDA. However, powers in almost identical terms to these existed in the DDA until 1 October 2004, but have now been repealed. Let me explain why.

In 2003, the House debated and accepted the European regulations of 2003, which came into effect on 1 October 2004. Those regulations transpose the
 
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European Union Framework Directive. They effectively rewrote and replaced Part 2 of the DDA. There is no minimum size, for example, for a firm to be exempt from the workings of the DDA. They were hugely important changes. Regulations made under Section 2(2) of the European Communities Act 1972 permit of no further sub-delegation; therefore as part of that exercise all pre-existing powers were repealed and replaced as necessary with provision on the face of Part 2.

Should the need for modification of Part 2 arise on any matters within the scope of the Employment Framework Directive, this may be dealt with by further regulations made under Section 2(2) of the European Communities Act 1972.

The same cannot be done in relation to the new Sections 15A, 15B and 15C, which regulate a relationship falling outside the scope of the Employment Framework Directive. Therefore we need specific powers to make regulations and those powers have been taken.

Perhaps I may give example to show how this addresses the point made by the noble Lord, Lord Skelmersdale. At present, Section 18B(1) of the Act sets out the factors to be taken into account when a person decides whether it is reasonable or not to make an adjustment. Such factors include the extent of financial and other resources available to make adjustments.

Section 18B(2) of the Act sets out the steps which a person may need to take in relation to a disabled person to comply with the duty to make reasonable adjustments. They might include allocating some of a disabled person's duties to another person. Section 18D(2) of the Act defines what is and what is not a physical feature. For example, it describes as a physical feature any feature arising from the design and construction of a building or premises.

These factors, steps and definitions of physical features have worked well when applied to the relationship between employers and employees. Only time and experience will tell whether they work equally well in relation to the relationship between local councils and their members. We hope that they will and we have no reason to think that they will not. But if changes are required in future, Ministers will be able to make them through regulations with an appropriate level of parliamentary scrutiny, as conferred by the Delegated Powers Committee.

I hope that in response to that technical description—the need arises because of the discrepancies between the EU directives and what we are seeking to do with councillors—my noble friend will feel able to withdraw his amendment. I hope that he is satisfied with what was, I am afraid, a rather long reply.

Lord Carter: It is common parlance in this House to say that I will have to read what the noble Baroness said Hansard and then decide what to do. However, I really will have to read it on this amendment and in the mean time I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 1 agreed to.
 
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Clause 2 [Discrimination by public authorities]:

Baroness Masham of Ilton moved Amendment No. 6:


"( ) In the 1995 Act, after section 21(2) there is inserted—
"(2A) In determining their duty under subsection (2), NHS hospital trusts shall ensure that adequate equipment is available to enable disabled persons to be diagnosed and treated to the same standards as other persons, in particular with regard to the provision of x-ray services.""

The noble Baroness said: In moving Amendment No. 6, I would like to thank the noble Baronesses, Lady Royall of Blaisdon and Lady Neuberger, for putting their names to it. The amendment states:

This is a very serious matter and getting worse.

There has been a European directive stating that staff should not lift patients. This is putting patients in intolerable positions when they go into hospital for diagnosis and treatment if suitable equipment is not available.

The problem was brought to my notice first-hand when I fractured a leg in two places getting stuck in a door in your Lordships' House about a year ago. I went to St Thomas's Hospital for an X-ray and a male nurse told me that he would have to get a hoist from one of the wards. It never came.

Eventually an Australian radiographer said that I had waited too long and the person who came with her got me on the X-ray table. There was no equipment which made this job easier in the accident and emergency department.

One in five people in Britain are disabled in some way. This is no small matter. I could quote many cases where there have been huge difficulties for patients. Patients are brought to hospitals for all sorts of investigations and health screening such as cervical smears and prostate investigations. After an accident, it may be important to move a patient very carefully.

Some years ago, when I was on a regional health authority, I asked questions about facilities for disabled people when I could never find them mentioned on the agenda. Their needs seem often to be forgotten.

I fully understand that hospital and health workers in the community should not damage themselves by lifting heavy patients. One the other hand, patients who have a disability should have the facilities to be diagnosed and treated; otherwise is it not a very serious case of discrimination?

Disabled people have enough to put up with without the extra worry of no help, no facilities and sometimes no treatment. I beg to move.

Baroness Royall of Blaisdon: I support the noble Baroness, Lady Masham of Ilton. Equality of treatment should be an absolute right. People with disabilities and able-bodied people should—indeed, must—expect the
 
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same access to diagnosis and treatment. If that access is impaired in any way due to inadequate equipment, the result is discrimination. Naturally, I fully support the aims of the European directive and its protection of the health and safety of staff.

The purpose of the Bill is to extend and to build on the Disability Discrimination Act. I believe that this is an opportunity to end the particular discrimination mentioned by the noble Baroness.

Baroness Neuberger: I support the noble Baroness, Lady Masham, and want to talk briefly from personal experience. As chair of an NHS community trust, I was embarrassed and ashamed of facilities made available to people with major disabilities in access to a whole variety of services. Of course we all support the EU directive to protect healthcare workers and others when lifting. But disabled people are frequently left to have a mammograph to access other services if they are, for instance, using mental health services. That simply will not do.

The Government could do something by issuing an instruction to health authorities, but they could do even more by putting the requirement on the face of the Bill.


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