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Baroness Darcy de Knayth: I simply do not understand the argument. If people's particular cancer is not causing discrimination, they would have no need to plead the DDA.
Baroness Hollis of Heigham: That is my point precisely. The point is that the amendment would include
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cancers to be covered in respect of the DDA without any evidence that discrimination has occurred, that the condition is ongoing; that it is substantial; or that it has an adverse effect on people's ability to carry on their usual day-to-day living.
Baroness Darcy de Knayth: That is one element: the person who does not have a cancer that is affecting his life. But the same sort of cancer may lead to something serious, as we have heard, and those people will need the protection of the DDA. It is much more about perception than anything else. HIV, which has carte blanche, is much the same, is it not? Did not the Minister cite Maria Eagle as saying that?
Baroness Hollis of Heigham: The noble Baroness made two very different points. The first was that the disease may lead on to something. In that case—this is rather like our debate on mental health—if whatever it leads on to produces an impairment that is sufficiently severe, that will be covered by the DDA. But the noble Baroness is arguing the opposite: that it does not matter whether it is significant, it is the perception that counts. I know that a number of noble Lords have had treatment for cell melanoma. You see them come to the House with a plaster on their skin; if you ask them what it is for, they will tell you. A week or so later, the plaster is off. They would be amazed to think that people would continue to discriminate against them and that they should fall within the coverage of the DDA.
So that is the line that I am treading. Where I wanted to be accommodating is that there are powers to move, should it be deemed wise to do so. I come back to the point that the noble Lord, Lord Skelmersdale, spent much of his speech on. Such cancers—skin cancers, abnormal cancerous cells of the uterus, and so on—may require only minor, modest treatment of the level of intrusiveness of laser treatment on an eye for a cataract. I will not say that that is the case always, it depends on the severity of the condition, the point of intervention and so on. However, in my experience, it can be no more invasive than that. It would be bizarre to regard that level of minor complaint as coming within the protection of the DDA.
Lord Ashley of Stoke: Surely, the point is not the intensity of the cancer, it is the intensity of people's feelings. The whole point of this discussion is that where the public perceive cancer—with a capital "C"—that is the end of it. They are then discriminated against. The whole point is that it is not the intensity of the condition, it is that of the public's perception.
Baroness Hollis of Heigham: If I had had a melanoma—I have not, I have been fortunate—skin cancer and it had been cleaned up, how would anybody know that there was a perception of cancer towards me? How would they know? If I had had laser treatment—as I said, members of my family have—on cancerous cells of the womb and it was a less elaborate
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intervention than cataract treatment, how would anybody know? Does anybody know whether somebody has had cataract treatment?
Lord Addington: I briefly make this point because I know that we are near the end. If you have to make a declaration about whether you have had any condition at any time or whether there is anything that is ongoing, it becomes apparent. If you do not understand the differences, which the noble Baroness does, then a judgment is made that you are at risk or will not be able to do your job.
Baroness Hollis of Heigham: Which person going in for a job who has had treatment for a melanoma three years previously, which is over and done with, is even going to think to put that down on a list of continuing medical conditions?
I am trying for the fourth time to come back to the point raised by the noble Lord, Lord Skelmersdale, on whether there is an issue, not in the situation of employment and so on, but possibly in insurance and financial services. I agree there have been issues, not so much in this area, but on things like whether you have ever been tested for HIV and so on. They produce a fear for disabled people, or anybody, that they may be caught by insurance policies which are designed to increase profitability for the company by possibly unfairly treating the individual.
Part 3 of the DDA applies to the provision of goods, facilities and services. It is unlawful for a service provider to discriminate against a disabled person for reasons related to their disability or to fail to comply with a duty to make a reasonable adjustment, without justification.
Whether that person is disabled is a relevant factor in deciding whether to provide insurance services. Regulations made under this provision will provide special rules to deal with these circumstances. They are relevant where a provider of insurance services, for a reason which relates to a disabled person's disability, treats a disabled person less favourably than it treats, or would treat, others to whom that reason does not or would not apply.
For example, a disabled person with a longer-term history of cancer—I am not talking about the one-off treatments that I was seeking to exclude for the purposes of argument—applies for a life insurance policy. The insurance company refuses to provide life insurance to him. Whether the refusal for insurance is justified will depend on the application of the special rules on insurance services.
The insurer should not adopt a general policy or practice of refusing to insure disabled people or people with particular disabilities, or of insuring such people on additional or adverse terms and conditions, unless that can be justified by reference to the special rules.
The special rules are met if the following conditions are satisfied—and this is a difficult area, so I would like to read them quickly into the record: it is in connection with insurance business carried on by the service provider; it is based on information which is relevant to the assessment of the risk to be insured; the
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information is from a source on which it is reasonable to rely; and the less favourable treatment is reasonable having regard to the information relied on and any other relevant factors.
For example, the wrong approach would be that a healthy woman aged 40, who has had a strong family history of breast cancer, decides to have a double prophylactic mastectomy. The operation has no complications. She makes a full recovery and remains fit and well. She then applies for critical illness insurance. Her insurers offer her either a higher premium for cancer cover or an exclusion for cancer and ignore the action she has taken to reduce her risk. Although there remains a small risk of cancer in such cases, for example in ovarian cancer, the risk is reduced significantly and that should be reflected in the terms offered.
The right approach would be a woman in a similar situation. She applies for critical illness insurance. Her family history might mean either paying a higher premium for cancer or having an exclusion from cancer. There remains a small risk, but she is offered the provision at standard rates.
I am sure the noble Lord, Lord Skelmersdale, has seen this document. I was not absolutely sure whether he was quoting from it. I read with interest that in 2003 the Association of British Insurers, the ABI, published An Insurer's Guide to the Disability Discrimination Act, which my honourable friend the Minister for Disabled people, Maria Eagle, and Bert Massie, the chair of the DRC, endorsed wholeheartedly.
That guides makes the special DDA rules on insurance completely clear. I give some examples. Section 3.2 states:
"You should never rely on assumptions, stereotypes or generalisations about disabled people. All your decisions must be based on relevant information or data available at the time which will form the basis of your underwriting manual. This includes:
In so far as that guide is followed, I think that disabled people should have confidence that the insurance industry is following good practice.
The guide makes the special rules clear. Members of the ABI, which comprises over 90 per cent of UK insurers, are expected to abide by the code. Whether or not they do, they still have to abide by the law, operate on a best practice basis and so on.
The DRC has undertaken to monitor the industry's compliance with this code, and I understand that this work will commence later this year. If the industry—and I can give this assurance to the noble Lord, Lord Skelmersdale, in particular and to the Committee more generally—is not meeting expectations, no doubt the DRC will make appropriate recommendations on the way forward in this extremely important area.
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I have asked officials at the DRC for any evidence that the financial industry is not behaving appropriately. So far no evidence has been forthcoming.
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