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"( ) In paragraph 4(1) before sub-paragraph (a), leave out the words from "to" to the end and insert "have a substantial adverse effect on the ability of the person concerned to carry out day to day activities only if it also affects one or more of the following capacities—"."

The noble Lord said: My Lords, I tabled the amendment because I am advised that as a result of court cases, there is a certain lack of clarity in the Act about the day-to-day activities which determine whether a person is disabled. Currently, employment tribunals and courts are reading the list of activities in Schedule 1 as being finite. This list of mobility, manual dexterity, physical co-ordination, continence, ability to lift or carry every-day objects, speech, hearing or eyesight, memory and ability to concentrate, learn or understand and the perception of risk of physical danger, is, as your Lordships can see, almost exclusively a list of physical capacities, with the result that the current definition of disability fails properly to cover the day-to-day activities, or rather difficulties, experienced by people who are mentally impaired.

In Committee, the Minister agreed that there was a problem and I was interested in her response—rather like her response to the previous amendment—that it could be cured by a toughened–up code of guidance
 
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for courts and tribunals to cover the point, rather than, as the noble Lord, Lord Carter, requested to add the ability to care for oneself, the ability to communicate and interact with others and the ability to perceive reality.

So, with the permission of the noble Lord, Lord Carter, I am trying again. This amendment, which replaces the introduction to paragraph 4(1) in Schedule 1 to the 1995 Act, is intended to toughen up the Act rather than the guidance. I believe that central to the Government's approach to the definition of impairment is that the list of capabilities I have mentioned as already being in Schedule 1 needs to be shown as present in a disabled person and in addition that there is a substantial adverse effect on day-to-day living. Examples would include sleeping, eating, going out, working, cooking and so forth. Both those effects need to be considered by the courts.

The trouble is that the Act does not say that: it does not distinguish between "capabilities" and "activities". Indeed, the results of the court cases I have discovered clearly show that the items listed in Schedule 1 are treated as an exhaustive list of day-to-day activities and not capabilities. It is a point recognised both by the task force and the Disabled Rights Commission. It is not a subtle or exoteric difference but impacts directly on the way evidence is gathered, cases are argued and judgments delivered by courts and tribunals.

For example, the Employment Appeals Tribunal dealt last year with two cases. In the first case, the Environment Agency v Mr Sevens, the tribunal considered only loss of concentration and incontinence and not his other symptoms—suffering nightmares and grinding teeth in his sleep. The Employment Appeal Tribunal called those "irrelevant factors" and therefore not a reason to overturn the original tribunal's decision. In other words, tribunals treat the existing list as being exhaustive, as I said.

In the second case—Manchester City Council v Sharon Romano—the tribunal stated:

When the case went to appeal, the court found that that was a correct statement of the law. In other words, a mental impairment on its own is not enough to comply with the DDA.

While in Committee, I was excited by the idea of spiced up guidance to the court. On reflection, such guidance will not be enough to cure the problem, as it can cover only what is in the Act, however tough it is. The guidance is not statutory: it needs a peg in legislation upon which to hang. My suggestion for that peg is the addition of the word "also" to make it clear that impairment exists in its own right and that the list helps to define it. I beg to move.

Baroness Hollis of Heigham: My Lords, I think that there is a way of meeting the concerns of the noble Lords, Lord Skelmersdale and Lord Higgins, without further amending the meaning of "disability" in the
 
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Act. A person cannot be disabled for the purposes of the DDA unless he or she has a physical or mental impairment.

After impairment comes "effect". The impairment must have a substantial and long-term adverse effect on the ability of the person to carry out normal day-to-day activities, all of which is set out in Section 1 of the DDA 1995. Normal day-to-day activities are not defined in the DDA, but they are things that are generally regarded as normal for most people, such as going shopping, making a hot drink, getting in and out of bed, getting up from a chair, personal grooming and dressing, talking to people, writing a letter, reading, watching television or listening to the radio, and so forth. However, it does not include specific types of work or specialist activities such as playing a musical instrument because those are not normal day-to-day activities for most people.

Schedule 1 to the Act supplements the definition of "disability" in Section 1. Paragraph 4 of Schedule 1 has rules about when an impairment is to be taken to affect the ability of a person to carry out normal day-to-day activities. For the impairment to qualify, it must affect at least one of an exhaustive list of matters set out in paragraph 4. For example, a person with cerebral palsy whose impairment affects their physical co-ordination might show that the item in the list affected would be "mobility" or "manual dexterity".

We have heard today from the noble Lord that the problem is that courts and tribunals are confused about the purpose of this list. The noble Lord, Lord Skelmersdale, complained that they are taking it to provide an exhaustive list of day-to-day activities rather than "capacities" which an impairment might affect. Mind has kindly provided us with an analysis of case law. Although we might disagree with its claims of the extent of any misunderstanding it is clear that there is a problem in some individual cases.

The Government view is that the problem lies with a misreading and not with the law. We believe that any concerns around this part of the definition of "disability" can be addressed by clarifying the statutory guidance. We will consult all those who have expressed an interest in this issue when we draw up revised guidance. The guidance will also be presented in draft to Parliament for it to consider before it is issued. The Disability Rights Commission agrees that this is the right approach. On this, as on other amendments, it does not wish to see the Bill delayed. In the light of these explanations and assurances I ask the noble Lords, Lord Skelmersdale and Lord Higgins, to withdraw their amendment.

Lord Skelmersdale: My Lords, I was interested in that answer. The Minister feels that guidance will continue to be good enough and I well understand that nobody wants to delay the Bill. Indeed, I do not want to delay it myself—and I am not alone. If the Government feel that any amendments passed in your Lordships' House should be taken out of the Bill or amended in another place, they can do so. To a very great extent, the timing is in their hands.
 
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As far as normal day-to-day activities are concerned, I still suspect that guidance will not be enough. However, I do not feel that this is an amendment that I need to press. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Tebbit moved Amendment No. 40:

The noble Lord said: My Lords, I hope that I will not detain the House too long on this matter either, but I believe that the paragraph to be inserted in Schedule 1 to the 1995 Act under Clause 17(3) is objectionable both in principle and, even if this principle were to be accepted, it is objectionable in its scope.

To my mind, we should not enact legislation which purports to make true what is manifestly not true. I found myself agreeing overwhelming with the opening remarks made by the Minister just now in her reply to the previous amendment that a person cannot be disabled unless he has a mental or physical impairment. That is a very sound principle. Unfortunately, this paragraph undermines it. I hope that we shall not disagree over this matter as we have disagreed over my view expressed on other legislation, that we should not seek to legislate that what is untrue is true.

4 p.m.

As drafted, the clause would deem to be disabled certain categories of persons who have no disability; that is to say, it would say that black is white and white is black. It provides that a person who has cancer, an HIV infection or multiple sclerosis—and those three conditions only—is deemed to have a disability and hence to be a disabled person. Curiously, it goes on then to state that regulations may provide that that provision does not apply to persons with a cancer "of a prescribed description", and that such a regulation may be,

that is, having cancer. Here we really do enter into a world previously inhabited only by Lewis Carroll, where words mean what Ministers say that they mean.

Let us take a particular case—a well known one. Mr Chris Smith, the former Culture Secretary, told us last week that he was diagnosed as HIV positive 17 years ago. Happily, Mr Smith is well. He says that he suffers no symptoms, and he is clearly not disabled, and I hope that he will not be disabled by the infection which he has but which these days can frequently be maintained under control. But in law Mr Smith would be disabled if the Bill was enacted as drafted. I do not believe that he wants to be disabled; in the judgment of most of us, he is not disabled.

I understand that the reasoning—if that is not too strong a word—behind the paragraph is that a person with one of the three conditions that I mentioned will at some time in future become disabled. But I am more
 
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disabled than Mr Chris Smith, although I do not come within the scope of these provision. My disabilities—impaired hearing and vision, failing memory, weakening muscles, which are familiar to most of us in this House—are all attributable to advancing age.

Old age causes more disabilities than any other condition and is avoidable only in one way, by dying young, which is not an option that is attractive to most of us. As somebody said recently, no one wants to be 80 until they are 79. Yet we, the elderly, are not provided for in this schedule, nor should we be. When our disabilities become such as to disable us, then rightly we will not be deemed to be disabled but actually disabled. God willing, Mr Chris Smith will not be disabled until old age nobbles him as it has so many of us.

Curiously, the logic of my argument seems to be accepted in respect of those diagnosed with cancer but not HIV or multiple sclerosis. I should like the whole of the paragraph to be excised from the Bill. But if it is not, surely other progressive diseases such as motor neurone disease or Parkinson's disease should be added to the exclusive category in this paragraph. After all, they are progressive diseases, just as much as the three which are mentioned.

I have no doubt of the good intentions of those who sought these provisions in the Bill. But in legislation good intentions do not always create good law. That has been part of the burden of the case that the Minister has made this afternoon on a couple of occasions already, on one of which, I accepted her arguments. For that reason, I cannot accept that this paragraph should be in the Bill, and I commend the amendment to the House. I beg to move.


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