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Lord Ashley of Stoke: I, too, support the noble Baroness, Lady Masham. It is a profoundly important amendment. She mentioned the situation to the All-Party Disability Group last week and I was horrified to hear the evidence. It is condemnation of what is happening in British hospitals to disabled people and it is hard to believe.

Why have we not previously heard of this scandal—because scandal it is? It is the old story of people suffering in silence and it simply is not good enough. We know what the situation is and the noble Baroness, Lady Masham, has done the committee a great favour. I hope that my noble friend Lady Hollis will be able to respond constructively.

Baroness Hollis of Heigham: I do not know whether what I am about to say will be regarded as responding constructively. The amendment would insert a new Section 21(2A) into the DDA requiring NHS hospital trusts to have regard to the provision of adequate equipment for the diagnosis and treatment of disabled people when considering their duty under Section 21 to make reasonable adjustment.

No one could fail to sympathise with the examples mentioned today. I have taken careful advice and I must say that the amendment adds nothing to the current duty of the hospitals. It would not require them to make any adjustments that were not reasonable or to consider factors that they do not already consider. For example, it could be a matter of resources, which are one of the tests of reasonableness. In that case, it is not essentially different from the mother of a newborn premature baby who feels that she should have the right to an incubator in the local hospital but will have to travel 50 or 100 miles to get it because the hospital cannot justify the expense or provide the trained staff to do so. I am not saying that
 
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those are identical examples, but the question of resources applies across the board in that situation too.

Under the new public sector duties, hospital trusts have further responsibilities in relation to the delivery of their functions, as well as a duty to promote equality of opportunity. Those will have a further positive impact on the delivery of health services to disabled people. However, I do not know whether, in the instance suggested by the noble Baroness, Lady Neuberger, a disabled person needing a mammograph or X-ray would need a different type of equipment that is so expensive that it might be organised on only a regional basis, so requiring travel. That seems not impossible.

In that sense, although I entirely sympathise with what the noble Baroness, Lady Masham, said about a hoist—that is completely unacceptable—I gently suggest that the amendment would add nothing to the current duties, responsibilities and functions of hospitals. The amendment is not the right way of addressing the issue. However, the noble Baroness raised the matter yesterday at Starred Questions, so it has been raised beyond the all-party group. At Starred Questions, my noble friend Lord Warner was rightly concerned at the situation that she described. He is taking it away to have a look at it, which may be a more helpful and appropriate response than trying to lay a mandatory duty on hospitals to provide equipment, training and trained staff to handle it. That may not be appropriate in all situations, and is not reasonable. I expect her to get a response from my noble friend that I hope will obviate such situations occurring in future.

Baroness Masham of Ilton: I thank all noble Lords who have spoken, including the Minister. However, we need more than sympathy. Sympathy is all very well, but there are people in our hospitals now probably sitting and waiting for treatment because there is not so simple a thing as a hoist or monkey pole above an X-ray table. Some such things are not very expensive. Today, I was interviewing for the Winston Churchill Fellowship in Kensington, and someone said to me that it was all very well the Chancellor of the Exchequer putting Africa in order, but that a neighbour of his had just had a stroke and had appalling problems in a hospital in Kent. People are beginning to realise the problem.

It is not good enough for disabled people to suffer in silence. It is our duty in Parliament to do something about it. As the Minister said, the problem probably is resources. Why should disabled people come at the bottom of the list? That is what the Bill is all about. I will get together with the supporters of the amendment before the next stage. I will also try to have a word with the noble Lord, Lord Warner, and see whether we can have something constructive. I do not mind where it goes, but something has to be done. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
 
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[Amendments Nos. 7 to 9 not moved.]

Lord Skelmersdale moved Amendment No. 10:

The noble Lord said: I am afraid that I find a new subsection of new Section 21B to be rather difficult to follow, and I hope that the Minister will be able to elucidate, especially as no light was thrown on it by looking at the Explanatory Notes. As I read it, Section 55 is all about victimisation—where person A treats person B less favourably than he could other people in the same position as B, because the latter has done various objectionable things.

However, I note from Section 55(3) that, where B is a disabled person or a person who has had a disability, the disability in question shall be disregarded in comparing his circumstances with those of any other person for the purposes of subsection (1)(a). So where B is a disabled person, or was previously disabled, the disability shall be disregarded, making the section rather like the The Water Babies, a matter of "do as you would be done by".

We are still, of course, in the compass of public authorities here. I do not understand why special mention has to be made for them, when everyone is already covered by Section 55. I hope that the Minister will be able to tell me. I beg to move.

Baroness Hollis of Heigham: I accept that it is very difficult to work out some of the import of the provisions, because of the structure of the Bill and the interweaving with the DDA.

The amendment concerns the victimisation provisions of the DDA, as they would be amended by the Bill. Section 55 of the DDA defines victimisation. It sets out that a person—I shall call this person the "first person"—unlawfully discriminates against another person if he treats that person less favourably because he or she has taken part in proceedings under the Act against the first person, or because the first person believes that he or she will take part in such proceedings. Unlike other forms of discrimination made unlawful by the DDA, victimisation is prohibited both in relation to disabled and non-disabled people.

The easiest way in which to illustrate the point is with an example. If one of my employees—in fact, when I turn around and stare at them, I realise that they are not actually my employees, because they are civil servants—but if one of them helped a disabled person to take me to court in connection with alleged discrimination, it would be unlawful for me to treat my employee less favourably as a result, irrespective of whether that person was disabled or not. That is the context in which it applies.

Amendment No. 10 would remove subsection (6) and would have the effect of removing a non-disabled person's right not to be victimised in connection with the exercise of public functions. This would mean that it would be lawful under the DDA for a public
 
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authority to deny a discretionary grant to a non-disabled person because he had assisted a disabled person to bring a claim of disability discrimination against the public authority, for example. That seems an unlikely example, but it is not impossible.

What we are seeking to do is to protect that situation uniquely here, in which a non-disabled person has aided a disabled person and to prevent that non-disabled person subsequently suffering discrimination. I hope that with that explanation, the noble Lord will not want to press the matter further.

Lord Skelmersdale: No, of course I shall not press the matter further. However, since this part of the Bill deals with public authorities and victimisation would be covered by it anyway, my question was really why special mention must be made of Section 55. I do not understand the need for it.

Baroness Hollis of Heigham: I am informed that what it basically does is replicate the existing provisions, repeating what we already have.

Lord Skelmersdale: Well, if it repeats what we already have—

Baroness Hollis of Heigham: Sorry, I mean as regards public authorities. For example, if a police authority arrested someone who was disabled, a non-disabled person assisted that disabled person in whatever way and the police subsequently hassled the non-disabled person giving assistance, the provision replicates the duty—they would not be able to do so. That is why we have included the reference to Section 55, because we are extending these powers to a new series of public authorities.


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