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Page 29, line 6, at end insert:
("( ) Regulations may prescribe that the effects of any medication or treatment, or the impact of pain, fatigue or stress on the performance of any of the activities in paragraph 4(1), shall be taken to affect the ability of the person concerned to carry out normal day-to-day activities.").

The noble Lord said: I shall move the above amendment, but, on reflection, I realise that it might have been better if we had grouped it with the previous amendment. I say that because, if we are not careful, we shall merely cover the same ground. The amendment seeks to ensure that the side-effects of medication—such as "pain, fatigue or stress", and so on—are taken into account when determining whether an individual qualifies as disabled.

The amendment would ensure that many disabled people who would otherwise be denied the benefits of the Bill would be included in the definition. It seeks to address the often adverse effects—such as "pain, fatigue or stress"—that medication can have on a person's condition. Those factors often amplify or heighten the effects of disability and can combine to debilitate the individual more than his main condition. For example, pain often causes fatigue, or medication to combat severe pain can be accompanied by unpleasantly debilitating side-effects such as nausea and dizziness. There are also the kinds of drugs which are commonly prescribed for serious mental illness, which can have serious and lasting side-effects.

The effects of medication or treatment can have a substantial and adverse effect on a person's ability to carry out,

as stated in the Bill. For that reason, the amendment proposes:

    "Regulations may prescribe that the effects of any medication or treatment... shall be taken to affect the ability of the person concerned to carry out normal day-to-day activities".

I am not sure that the drafting of the amendment is absolutely perfect, but I am sure that the Minister will get the drift of the argument. I shall be brief because, as I said, we shall merely be covering the same ground if we are not careful. However, it would be most helpful if the Minister could just explain how the Government envisage such a problem being dealt with under the definition in the Bill. I beg to move.

Lord Mackay of Ardbrecknish: The noble Lord, Lord Carter, has set out his reasons for introducing the amendment. I believe that the points he made deserve careful consideration. The adverse effects of a condition on ability to carry out normal day-to-day activity are the basis of our approach to defining disability in the Bill. It is important that we cover all the adverse effects which may reasonably be said to result from such a condition.

I can, I hope, convince the noble Lord that a substantial part of the range of factors in his amendment is already covered in the Bill. If a condition produces its adverse effects on ability to carry out day-to-day activities through the pain, fatigue or stress which it causes to the person who has it, then those effects—if

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they are substantial and long-term—will be capable of bringing that condition within the definition of a disability. If a condition causes pain, fatigue or stress, those factors are just as much part of that condition as would be, say, stiffness in a limb, or difficulty in controlling a particular set of muscles.

I believe that that deals with the first part of the noble Lord's amendment. The other part concerns the effect of "any medication or treatment". I accept that there is some doubt as to whether that is covered, but it seems unlikely that there will be more than a very few situations in which a person has a condition which does not itself have long-term and substantial effects on his ability to carry out his day-to-day activities. The amendment implies that the condition itself does not fall within the disabilities at which we are looking; it is the medication or treatment which has that effect. I am pretty uncertain as to whether you can actually have the latter without the former.

In those circumstances, I hope the noble Lord will accept my explanation on pain, fatigue and stress. I must say that I am unsure as to whether one would get results from medication which might potentially bring someone within the scope of the Bill if the condition being treated did not already bring that person within its scope. It is an important issue to which, clearly, we have given some thought, but I hope that the noble Lord is reassured by what I said at least regarding the first part of his amendment.

Lord Carter: I am grateful to the Minister. He said that this was an important point. We shall have to reflect on the interesting point that he made. I cannot quickly think of an example of medication where the underlying condition would not be caught under the definition. I am sure that our advisers outside the Chamber would be able to produce a list of at least 20, but I cannot think of any at the moment. I am grateful to the Minister for his good explanation of the problem. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Ardbrecknish moved Amendment No. 9:

Page 29, line 13, at end insert:
("Substantial adverse effects
. Regulations may make provision for the purposes of this Act—
(a) for an effect of a prescribed kind on the ability of a person to carry out normal day-to-day activities to be treated as a substantial adverse effect;
(b) for an effect of a prescribed kind on the ability of a person to carry out normal day-to-day activities to be treated as not being a substantial adverse effect.").

The noble Lord said: The Committee will be aware that it is our intention to have a definition of disability that is based on a common sense understanding of the term—I believe that I have said that on a number of occasions this afternoon—that is, a person who has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. In other words, the impairment has to be such that it has effects which are of some substance, not merely minor. The effects have

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to be long term, not temporary. And the effects have to be on the sort of activities that any of us might wish to undertake, not on specialist activities perhaps unique to one person in one situation.

We think that employers, service providers and disabled people will usually know who the Bill is meant to cover, as will courts and tribunals. This is particularly so given that Schedule 1 contains provisions supplementing the definition and Clause 2 allows guidance to be issued which will give examples of what constitutes substantial and long-term adverse effects. The word "substantial" is the best word to use in describing the degree of effect we have in mind; it is also used in other legislation such as the Disabled Persons (Employment) Act 1944. However, it is not a term that courts have always found easy to pin down. What would happen if, faced with a difficult set of circumstances, a court or tribunal came to a mistaken decision on what a substantial adverse effect really was? The decision might well go against a person who would otherwise be covered by the Bill, or it might declare something to be a disability that we never intended to be regarded as such. Without a regulation-making power we would have no means of clarifying the proper way to deal with that type of case for the benefit of future disabled people, employers and others. This seems to me to be an important gap in our powers and the purpose of this amendment is to correct it.

I know that the Committee regards the question of delegated powers as important. The Select Committee on the scrutiny of delegated powers reported on the Government's memorandum on the delegated powers in the Bill on 17th May. In the memorandum, we had pointed out that the Bill set out clear and sometimes innovative principles together with a number of regulation-making powers to enable more detailed provisions to be introduced later, if necessary, in line with those principles. We pointed out that experience of the operation of the Bill might be such that some of the powers would never need to be used. But, where they were used, we said that they would be subject to consultation with disability organisations, employers' organisations and other appropriate bodies. I am pleased to note the committee was satisfied that, although the powers are numerous, the framework within which they are being made is sufficiently clear and fully set out in the Bill to avoid the charge that this is a "skeleton" Bill. It saw no need to draw any of the delegated powers in the Bill to the attention of the Chamber.

This amendment would, as I have said, add a further delegated power to the Bill. But it is a power of the same type as other powers on which the committee commented and is for a similar purpose. It does not detract at all from the solid framework which we have established for the Bill and, if used, would be subject to the same degree of consultation as other delegated powers. The power is clearly necessary if we are to ensure that we can operate this Bill with confidence, and without the need, in this respect, to rely on further primary legislation should the courts or tribunals encounter difficulty in applying these principles. I hope that I have not gone on for too long in explaining what

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this amendment seeks to achieve and in explaining why we believe that the power is an appropriate one. I commend the amendment to the Committee.

On Question, amendment agreed to.

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