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Public Services Ombudsman (Wales) Bill [HL]

Lord Evans of Temple Guiting: My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the amendments for the Report stage be marshalled and considered in the following order:

Clause 1,

Schedule 1,

Clauses 2 to 10,

Schedule 2,

Clauses 11 to 27,

Schedule 3,

Clauses 28 to 34,

Schedule 4,

Clauses 35 and 36,
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Schedule 5,

Clauses 37 and 38,

Schedules 6 and 7,

Clauses 39 to 45.—(Lord Evans of Temple Guiting.)

On Question, Motion agreed to.

Disability Discrimination Bill [HL]

3.8 p.m.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Baroness Hollis of Heigham.)

On Question, Motion agreed to.

Clause 14 [Power to modify or end small dwellings exemptions]:

[Amendment No. 35 not moved.]

Clause 15 [General qualifications bodies]:

[Amendment No. 36 not moved.]

[Amendment No. 37 not moved.]

Clause 17 [Meaning of "disability"]:

Lord Skelmersdale moved Amendment No. 38:

"( ) In paragraph 2, after sub-paragraph (2) there is inserted—
"( ) Without prejudice to the operation of sub-paragraph (2), the mental impairment consisting of or resulting from depression that has ceased to have a substantial adverse effect on a person's ability to carry out normal day to day activities shall always be treated as if that effect is likely to recur if the person has had within the last 5 years a previous episode of such impairment which had a substantial adverse effect on the person's ability to carry out normal day to day activities for a period of 6 months or more.""

The noble Lord said: My Lords, in Committee the noble Lord, Lord Carter, put down an amendment on depression that the Joint Committee had suggested, but the Government rejected it on the basis that the effect of any impairment has to be continuous and long term. That is perfectly acceptable for all disabilities save one—depression, which in more than 50 per cent of cases recently studied was shown to have recurred.

I am no medic, but I am given to understand that the problem of long but erratic bouts of depression is not uncommon. Depression is characterised by separate episodes after which there can be a complete recovery. But that is not always so. I had dinner just last week with a 21 year-old who has only recently been diagnosed with depression, even though it is thought to date from her transfer to secondary school. Most acute episodes last no longer than six months and therefore do not meet the 12 months' rule in Schedule 1 to the Disability Discrimination Act 1995. Paragraph 2 of that schedule states:

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This might be covered under sub-paragraph (2), which states:

Alas, it is not. Although there is an underlying condition called dysthemia, it is, I am told, seldom true that this is the cause of longer-term depression. So the net result is that people with depression regularly face discrimination, particularly in the workplace.

I am advised that people who have recovered from an episode of depression can discover that they are never able to find paid work because of discrimination. Their ability to work is not reduced in any way except by stigma. This discrimination is so severe that the issue of whether or not to disclose on an application form a previous episode of depression is the single most vexed issue people can face when they are seeking employment. It also prevents people applying for jobs.

When including asymptomatic HIV and cancer, the Government made clear that the DDA should cover conditions that are known from case law to give rise to discrimination because of the stigma attached to that condition, even though in the case of cancer it might be short term. In my view, this reasoning should be applied to the case of depression. However, the Government have made it clear that they do not agree with an amendment that changes the definition of "long term" for the benefit of people with depression, so this amendment makes a much more modest proposal to cover those who have more than one episode.

Clearly, one would not want to include stress, about which I spoke in Committee, so the amendment has a period of six months' depression for the first episode as it is clinically most unlikely that stress will last as long or be so serious as to have a substantial adverse effect on someone's ability to carry out normal day-to-day activities. I beg to move.

Baroness Murphy: My Lords, I support the amendment tabled by the noble Lords, Lord Skelmersdale and Lord Higgins. I do so in order to clarify further the Government's approach to and understanding of the profound impact of certain kinds of major depressive disorder. Once again I refer to a clinical disorder which is recognised in the Diagnostic and Statistical Manual of Mental Disorders—in other words, what one might call the real McCoy, if I, as a clinician, can use that phrase to help other noble Lords. We are talking about real depression which is profoundly disabling.

In her response in Committee on 20 January, the Minister indicated that someone with a background of dysthymia—that is, a chronic lowering of mood—would be covered when a second episode of disorder occurred. But this is so rarely used by GPs and psychiatrists as a diagnostic phrase that it is not really useful. We know that a person with a major depression has a 70 per cent chance of having another within
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five years. Between these dates the stigma can be seriously profound and its impact upon a person's employment possibilities can be seriously disabling.

This is a modest amendment which tries to address the problems of those people with profound depressions that last a fair length of time and who suffer from them recurrently. I support the amendment.

3.15 p.m.

Lord Carter: My Lords, as I pointed out when we discussed this issue previously, the Joint Committee, which I chaired, recommended that people experiencing separate periods of depression which total six months over a two-year period should be considered to meet the long-term requirement. When the Minister replied, she said that that was inappropriate because this could be taken on board, as it were, only if the depression occurred as a result of a continuing impairment.

This is a point that we can make on a number of amendments. It arises from the way in which the 1995 Act is phrased and based on the medical model of the disability and not the social model. Indeed, in the Joint Committee we considered long and hard whether we should attempt to amend the 1995 Act to bring in the social model, but it was impossible because we would have had to start again and rewrite the whole Act. However, it makes the point that if we were working to the social model this kind of problem would not arise. The Joint Committee recommended that the DRC should explore the use of the social model. It will be interesting to hear from the Minister whether it is doing so and whether she feels that there is a way forward.

It is interesting also to note in passing that the recent report produced by the Cabinet Office Strategy Unit on disability steers well towards a social model of disability. I am sure that over the years this is the way in which we should go.

It seems to me that the Government have taken the point—with which we agreed in the Joint Committee—that if we are to build on the 1995 definition, the underlying impairment will be the deciding factor. But there is a real problem with intermittent impairment. So, if that is the case, perhaps there is a way through this. Are the Government ensuring—perhaps through the Department of Health and other appropriate bodies such as the DRC—that GPs are fully aware of the implications of the DDA as it is now?

In her answer in Committee, my noble friend was clear that episodes of short-term depression would be covered if they arose from an underlying impairment which had long-term effects. The problem is how we get from one to the other. Whether this should be done through guidance to GPs, the code of practice or whatever, there is a real problem of definition. This arises, as I say, from the decision we are faced with in basing this legislation on impairment and not on the effects of impairment on the person. Perhaps this could be met by linking the periods of depression to
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some kind of long-term recurring situation or an underlying impairment. That may be a way of solving the problem.

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