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Volume 685: debated on Tuesday 10 October 2006

Lord Ashley of Stoke asked Her Majesty’s Government:

Whether they have any plans to change the current legal definition of disability.

My Lords, we extended the definition in the Disability Discrimination Act in December 2005 to cover 250,000 more people, but we have advised the chair of the Disability Rights Commission that, as part of the discrimination law review, we will be considering the commission’s recommendations on the definition of disability. In addition, the cross-government review of independent living is considering whether any changes to legislation are required to support independent living.

My Lords, that is progress. I appreciate my noble friend’s reply, but does he agree that the current definition of disability is outdated and restrictive and that, as a consequence, many thousands of disabled people are denied the protection of disability law? Those are in addition to the 250,000 whom he just mentioned. So it is a vast problem. How soon can we have a new definition that is comprehensive and based on the social model of disability?

My Lords, I suspect that my noble friend is referring to the 1948 definition in the National Assistance Act. There is no question that the definition is rather out of date; that has been confirmed by the Prime Minister’s Strategy Unit report. However, local authorities provide community care services based on individual needs and local criteria, rather than simply on a statutory definition in the 1948 Act. We will take this forward as part of the independent living review. Equally, the work of the Disability Rights Commission and its recommendations for disability legislation will be considered in the review.

My Lords, does the Minister accept that insufficient weight is given to people with fluctuating conditions? Given the Government’s objective of encouraging as many people as possible off incapacity benefit and into work, how do they intend to achieve it for those suffering from, for example, bipolar disorder or ME?

My Lords, the Disability Discrimination Act states that, if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to occur. Under the legislation, fluctuating conditions are covered. I accept that it is an important question, which will often depend on the way in which a medical doctor would interpret that fluctuating condition. It is certainly a matter that we need to keep under review and is important for getting more people off incapacity benefit. The noble Lord is right.

My Lords, will the Minister give an undertaking that, if there are legal problems about moving towards a more social model or definition of disability, the Government will let us know those problems in plenty of time so that we can have this debate in a more open and coherent manner?

My Lords, I think that the noble Lord is referring to the work of the Disability Rights Commission. A report has just been produced suggesting a change in definition. We will, of course, give it every consideration. It is fair to say that the Disability Rights Commission recognises that there are some important challenges that will have to be met. Although there was consensus on reaching a change in definition, I do not believe that there was consensus on what that definition should be. Clearly, there is a risk that the wider the definition, the more it may dissipate the effort. These are important matters that will need to be considered.

My Lords, I am following on from the question asked by the noble Lord, Lord Skelmersdale. What is being done to get some uniformity in the decisions from the Benefits Agency Medical Service’s doctors? The noble Lord knows very well from correspondence that we have had on frequent occasions that many of those cases go to appeal and are won. It seems to be grossly unfair that people, many of whom are seriously ill, should suffer the stress of preparing a case for appeal when they will win anyway.

My Lords, on the medical service, clearly we want to ensure that there is consistency where appeals take place. Sometimes, appeals are won because new information comes to light. It is important that we get as much information as possible to the original decision maker. We are undertaking extensive reviews of the service in the context of our welfare reform agenda and the legislation before Parliament. I very much take the point raised by the noble Countess.

My Lords, I am grateful to my noble friend Lord Ashley for raising the crucially important issue of definition, which has now been emphasised again by the disquieting experiences of cancer patients seeking time off work for medical appointments. Can we be assured that, in moving forward on this issue, Ministers will take fully into account the provisions now agreed for the UN Convention on the Rights of Persons with Disabilities and the obligations they will impose?

My Lords, my noble friend is right: the 2005 amendments extended the remit of the Disability Discrimination Act to include many more patients with cancer. Clearly, an issue has been raised recently about the extent to which employers and service providers are aware of the new provisions. We have done a lot to bring this to the attention of such organisations, but more needs to be done.

On the UN convention, I pay tribute to my noble friend and other noble Lords who took part in a debate in your Lordships’ House a few years ago. Great progress has been made. There is now an agreed text. It is subject to some technical work but, as far as I am advised—this will have to be checked carefully by each government department—we do not believe that any legislation in operation in this country is incompatible with the text that has now been agreed.

My Lords, does the Minister expect the new definition to cover dyslexia, which affects about 11 per cent of the population? Without certain support at school and later on in the workplace—IT support, for instance—people with dyslexia can never usually reach their true potential in life.

My Lords, we do not have a new definition, so it is difficult to give the noble Lord a hard and fast answer. Essentially, the DRC wants to move from a definition that protects a group of disabled people and protects anyone who experiences discrimination on the grounds of impairment. One of the problems that the DRC recognises is that, if impairment is the judgment to be made, it also wishes to exclude a limited number of trivial conditions from that definition. That shows some of the problems there will always be in coming to a new definition. The key test at the moment is that the Act defines a disabled person as a person with physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. That is the basis for a more extensive description of those people who are covered.