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Equality Bill

My Lords, Amendment 4 is designed to address how long-term or fluctuating conditions fit into the provisions of the Bill. As we stated in Committee, we welcome the fact that the Bill already contains some provisions to address fluctuating and recurring conditions. Paragraph 2(2) of Schedule 1 states: ""If an impairment ceases to have a substantial … 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"." From the example given in the Explanatory Notes, we can glean that "effect is likely to recur" means that the condition has been diagnosed as an underlying mental health condition. Our concern is that many fluctuating and recurring conditions are very hard to diagnose, and this situation may be exacerbated by considerable debate in the medical profession. The end result, of which we are afraid, is that some people may not be covered by the protective provisions in the Bill purely because it is too difficult to forecast accurately whether the condition is likely to recur. In her response, the noble Baroness, Lady Thornton, stated that this amendment would create a risk that those with depression are treated more favourably than others and that it could blur the line between those who have suffered a single period of depression and those who have a clear illness. Although I take those points on board, the noble Baroness did not address the key issue, which is that it is very difficult to draw the line between what might be a single period, or even several discrete episodes, of an illness such as depression, and an underlying long-term condition. Evidence shows that at least 50 per cent of people will have a recurrence following their first episode and that at least 70 per cent of people will have one following their second. However, this can often be confirmed only retrospectively. I fear that legal wrangles will arise from this part of the Bill whereby the courts will have to make the final decision. That is far from ideal. Moreover, diagnostic manuals drawn from the National Institute for Health and Clinical Excellence guidelines say that moderate or severe depression is a time-limited disorder which will typically last up to six months. That is why we have included the period of six months. Therefore, it is not an arbitrary figure but comes from those guidelines. It often cannot be confirmed that specific periods will last for up to 12 months. If it also cannot necessarily be determined whether the depression should be classed as discrete episodes rather than as a long-term condition, it is likely that those with depression could be left out of the Bill’s provisions. The noble Baroness, Lady Thornton, was nervous that this amendment could afford greater protection to those with depression than to those who have other impairments. However, that is already the case for some other conditions which are rightly deemed to be covered by the protection of the provisions although the facts of those cases might not quite fit the definition given in the Bill; patients with cancer, HIV or multiple sclerosis, for example, are all deemed to come under the definition of disability. Is it therefore correct to say that the amendment could not be accepted because it would treat depression more favourably? Surely the Government have already accepted that this is necessary in some cases. They have already said that the position is difficult as there could be two periods of depression that were not connected and, therefore, did not represent an underlying problem. That might be true, but the situation illustrates the difficulty of diagnosis. Sometimes it could represent distinct episodes, but at others it could represent an underlying condition. A different trigger is not necessarily conclusive proof that they are distinct episodes. The main difficulty is clarifying exactly when an underlying condition starts. We are looking to achieve certainty and clarity in the Bill and to ensure that protection is there for all who should have it. I am not at all sure that the provisions in this area achieve that. Paragraph 1 of Schedule 1 gives a regulation-making power. Is this something that the Government would consider using to include a condition such as depression? Will the Minister give a commitment to investigate further whether there is a need to do so? Alternatively, how do the Government hope to use guidance in this respect? It would be very useful to know their exact intentions on demonstrating a commitment to the inclusion of everyone who should be entitled to protection. I turn to Amendment 14. As I said in Committee, the Bill should be about achieving real change. The noble Lord, Lord Low, made a compelling case that access to information for disabled people remains an area where inequality is still rife and that real change is needed. Fifteen years after this party took the original Disability Discrimination Act through Parliament, we support this amendment to help disabled people share in the information age. However, we must not assume that improvement will necessarily follow. This seems to be an opportunity for the Equality and Human Rights Commission to distinguish itself. These Benches certainly want to know what plans it has to take advantage of this new provision to drive real changes for disabled people. In Committee, we tabled amendments similar to Amendments 20A and 44A to probe the Minister on the extent and cost of reasonable adjustments. I look forward to the Minister’s response. I look forward to the Minister’s response to these amendments and to Amendment 60 in the name of the noble Lord, Lord Low. I have some sympathy with it but will wait to hear whether the Minister thinks that it is necessary. I beg to move.