Equality Bill

My Lords, Amendment 8 is designed to address how long-term conditions fit into the provisions of the Bill. As currently drafted, Clause 6 is quite strict. It defines someone as having a disability if they have a "physical or mental impairment" and that impairment has a, ""substantial and long-term adverse effect"," on their, ""ability to carry out normal day-to-day activities"." This is quite tight but we welcome the fact that Schedule 1 includes the provision that, ""If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur"." We welcome the fact that this will include fluctuating and recurring conditions. In other words, even if the person suffered a condition which then subsided, they could still be considered to have a disability for the purposes of the Bill. This is important because it gives disabled people stability. The obvious example is depression, which has been given in the Explanatory Notes to Schedule 1. This illustrates that the section is supposed to include the possibility of a person with depression finding simple decisions or tasks difficult, which would amount to a disability because it would be considered to have a "substantial adverse effect" on their ability to carry out daily activities. It would also count despite the fact that the occurrences of depression were split into separate periods over two years. It therefore appears at first glance that our concerns have been answered. Nevertheless, we have tabled the amendment to probe in the Bill the status of "long-term" and fluctuating conditions because the Disability Charities Consortium remains worried. The example stated would allow the individual to be covered under the Act only because the separate instances of depression had been, ""diagnosed as part of an underlying mental health condition"." Many fluctuating and recurring conditions are very hard to diagnose, often because there is a lot of disagreement about them in the medical profession. This can mean that claims fail because of the expense and complexity of obtaining hard and firm medical evidence rather than because the condition is any less valid. The disagreements may be based, as in the case of depression, around whether the symptoms represent a continuous condition which also has separate episodes where it is specifically active or whether the episodes are self-contained occurrences. That would obviously affect whether such a person would be covered under the Bill. For this reason, the Joint Committee on Human Rights in conjunction with the Equality and Human Rights Commission and the Disability Charities Consortium recommended the removal of "long-term" to create a, ""simpler, more certain approach for identifying who has protection"." While we do not advocate its take-up here, our amendment specifically addresses depression to draw attention to the fact that it is vital to be clear about which conditions are included in the scope of the Bill. At this moment, it could be argued that it is quite vague. As the Disability Charities Consortium states, it can be difficult to predict the duration of such a mental health problem. Without being able to forecast this accurately, it would be very difficult for one to judge whether the, ""effect is likely to recur"." There are two problems here. The first is that this vague area may mean that some people with very serious conditions are left out in the cold and not covered by the Bill. They may be people who have recently been diagnosed as having had an "episode" of depression, but it is unclear whether they will have a repeat occurrence. The second, as we said in another place, is that a debate about the likelihood of recurrence will give rise to a legal wrangle where a court might be forced to take a decision. This is surely far from ideal. This issue was debated in another place and it was concluded that it might be best to put advice on how to deal with conditions such as this into statutory guidance. Will the Minister confirm that this guidance will contain provisions relating to specific conditions such as depression where medical opinion may be divided? Will she inform the Committee of any further provisions which might be included? Can we hope to see draft guidance soon? The Solicitor-General in another place rightly pointed out that, ""there is a limit on what one can do in statute to clarify every possible situation that might arise".—[Official Report, Commons, Equality Bill Committee, 16/06/09; col. 201.]" This is true, but does the Minister agree that the language should not be left vague enough for the Disability Charities Consortium, the Equality and Human Rights Commission and the Joint Committee on Human Rights to worry that there may be groups who are not included? I beg to move.