Tuesday, 24 May 2005
Dáil Eireann Debate
An Leas-Cheann Comhairle: Deputy Ó Snodaigh is not present to move amendment No. 20 and it therefore falls, amendments Nos. 21 and 22 cannot be moved, Deputy Ó Snodaigh is not present to move amendment No. 23 either so it also falls, amendments Nos. 24 to 28, inclusive, are out of order, Deputy Ó Snodaigh is not present to move amendment No. 29 either so it falls, and amendment No. 30 is out of order.
This amendment calls for a review of the Act, particularly in the context of the definition of disability, within a maximum period of two years of operation or three years after enactment, whichever is soonest. The definition of disability contained within this legislation has been subject to considerable criticism from all sides. This is important legislation which we hope will greatly improve the situation for people with disabilities. It would be shameful if people were overlooked by the Bill. Within a few years, the majority of Members will have moved to other portfolios. The Minister of State at the Department of Justice, Equality and Law Reform, Deputy Fahey, will have moved on. This House will change after a general election and the ensuing make-up will be unknown. An opportunity currently exists to include in this legislation a mechanism to review the Act and, in particular, the definition of disability.
The second part of the amendment concerns consulting appropriate organisations or representatives, which would happen as part of such a review. The final part calls for the review to be laid before each House of the Oireachtas. Legislation could not be changed before being approved by the Houses.
This amendment is important because the Bill may be flawed in its definition of disability. A number of years may pass before the opportunity arises to rectify the exclusion of people resulting from this definition. While amending legislation may be introduced during the interim, my amendment provides an opportunity to focus attention on this matter. The Bill, once enacted, will run for three years before a review is conducted. We would therefore have time to see whether the Bill works properly.
An issue also arose in terms of the funding envelope, which lasts five years. It is important that a review be conducted before the next round of funding comes on stream because that is when decisions are made. Having the review of the operation of the Act available when the next funding envelope is being decided will help direct the funding in an appropriate and focused manner. By this means, we could ensure that the legislation assists people who, owing to the definition, may fall through the net.
I hope the Bill will work and will not exclude people who need assistance. Many learned people have questions on the definition. I know the Minister of State is aware of these views. This is a new definition which has not yet been tested, although it forms part of the Education for Persons with Special Educational Needs Act 2004. Some claim that the definition is included to restrict the Act and exclude people. The Minister of State said that the definitions contained in the Equal Status Act 2000 and the Equality Act 2004 are different and have other functions. We will have problems if the function of this definition is to exclude people.
Will dyspraxia sufferers be covered by this legislation? Will the Minister of State explain to the House the blurring of the definitions of “illness” and “disability” in the Bill? Given that one could have a long-term illness, there may be an overlap which is where problems will arise. We will have to determine where illness stops and disability begins. We have already had references to people with multiple sclerosis and episodic conditions such as epilepsy. Many people are concerned about mental health in this context. The Minister of State has been recorded as saying — and he can correct me in a minute if I am wrong — that people with what he termed “normal depression” will not be covered by the Bill. Again, we see a blurring between illness and disability. It can be argued that people who suffer from depression have a disability under the definition in the Bill. We require clarity.
If we find in a few years that people are being omitted, we must have the facility to review and, if necessary, amend the legislation. My amendment achieves this while also making provision for consultation with organisations with an interest in and concerns about the definition set out in the Bill. I urge the Minister of State to reconsider the maximum period in which the House can review the operation of this important legislation. Time out of number, we have found legislation passed by the House to be imperfect. There is always a need to learn more and revisit provisions. Given the importance of the legislation, we must have a way to rectify it if we find it has the effect of excluding people. All Members are aware of the difficulty of introducing amending legislation. I have made my case as strongly as possible. It is important to review the provisions early.
Ms Lynch: The review period, which was discussed at great length on Committee Stage, is still too long. It should begin after a three-year period. Legislation of this magnitude, which covers in great detail how people will live their lives and have services delivered, will require a 12 to 18-month period to review. Amendment No. 32 seeks to provide that a review would commence in year three and, possibly, be completed by year five. This reasonable proposal would ensure that, whatever occurred in the first three years of the operation of the legislation, problems could be rectified more quickly than if one were required to wait for a five-year period to elapse.
Except in the case of public bodies, the delivery and accessing of services is very much time related. While the Minister of State will contend the Bill contains no flaws, we should assume we are not all perfect. The Minister of State may find it hard to believe but it may have a flaw which even the combined brains of the Opposition have failed to identify. In that context, a five-year period is too long for a person to wait for a service to be delivered. Even if the period is amended to three years, it will still be five years before changes can be made as a thorough review will take at least 18 months. Amendment No. 32 would ensure the legislation would be under continuous review, which all ground-breaking legislation on services should be anyway. I do not understand why the Minister of State will not agree to a reasonable amendment which would provide the safety net we all seek. Amendment No. 32 would achieve the aims shared by Government and Opposition.
While the Minister of State has reassured Members and is probably as sick of the matter as I am, I remain unconvinced that the wording of the definition of “disability” will serve to include those people I believe will be excluded. Given the Bill’s provisions, if one can carry on a profession, hold a job, participate in cultural and social events and live what most of us would consider to be a normal life, one cannot be included. How could Cearbhall Ó Meadhra, whose example we have constantly used, be determined to be disabled under the current provisions of the Bill?
I was at a meeting yesterday with two people who were very passionate about a document they had produced with which I disagreed. At the end of our discussion, we could still not agree and one of them asked if I could not simply trust them. That is what the Minister of State is asking me to do in this instance. Unfortunately, I cannot as we are dealing with absolutes. If we are operating at the level of detail at which we table amendments to move apostrophes and indefinite articles, it cannot be about trust. Our approach must be based on the content and effect of the Bill’s provisions. I have yet to understand how people who clearly have disabilities but participate in society can be recognised under the legislation as people with disabilities.
The definition in the Bill is too narrow and fails to provide for the flexibility we need as human beings. A person with a mobility difficulty may not necessarily be in a wheelchair and may not suffer from the difficulty on a permanent basis. How are people with multiple sclerosis, for example, included under the legislation? While the Minister of State has informed us repeatedly that they are, I cannot understand how the effect is achieved. If such people are included, I should be able to understand how. I do not understand how the Minister of State can read in legislation that they are included when it clearly excludes people.
I reiterate that the amendment to provide for a three-year review period is a sensible proposal. Will the Minister of State do his best to explain how the legislation can include the people its provisions clearly exclude?
Aengus Ó Snodaigh: I support this amendment. It is similar to one I had tabled but was not present in the House to move. It has the same purpose, namely, to call for a review, especially a review of the definition of disability which has been a bone of contention with most of the groups that have made recommendations to amend the legislation to make it a rights-based Bill, which so far is not the case and it is unlikely at this stage that it will so become. If the Minister of State were to accept the amendment, it would give us hope that we could revisit some of the major wrongs that are part of the current wording of the Bill. It would also provide an opportunity for us to revisit the definition of disability and bring it more into line with that in our equality legislation which is inclusive rather than exclusive and therefore encapsulates that under which most people who suffer with disabilities wish to be covered.
I tabled an amendment which was in line with the definition of disability which appeared in the equality legislation. Amendment No. 12 was disallowed because it would place a cost on the Exchequer. The cost would not have been disproportionately greater than that to which the legislation will give rise and it would have meant that we would have an inclusive definition of disability which took account of all disabilities and allowed the services to flow from it which were appropriate to those disabilities. Not all disabilities are the same. The same level of services and resources are not required by everyone with a disability. It would have been preferable if the broader definition had been taken on board, which has not been the case up to now, but it could happen if the Minister of State were to accept amendment No. 31. I urge him to take on board the time period proposed by Deputy Stanton and Deputy Gerard Murphy. Deputy Lynch’s amendment would have the same effect.
I recognise that the Minister of State has allowed an amendment in the past for a review of portions of the legislation after five years. That was a welcome improvement but I want him to go further and adopt these amendments to ensure that the fundamental flaws identified by the disability legislation consultation group regarding the absence of adequate provision for a review of this Bill are addressed. These amendments go some way towards addressing that flaw. It would be a good day’s work if we managed to address that part and it would reflect that the Minister of State was in good humour this week and was willing to listen to what the Opposition proposed.
As I said on the two occasions on which we discussed this Bill, it would bring the proposed legislation more in line with rights-based legislation rather than legislation that is dependent on the whim of the Minister for Finance. The amendment provides the Minister with the opportunity to begin to rein in the Minister for Finance.
Mr. F. McGrath: I strongly support amendment No. 32 which states that: “the Minister shall not later than 3 years after the commencement of this Act, carry out a review of the operation of this Act”. It is a most important amendment that would add to the legislation. Not alone does it have the support of Deputy Lynch and the other parties and groups, it also has the support of the disability groups, especially disabled people themselves. In recent months we have spoken to them and have listened to them. I wish the Government had also listened to them. I accept that a series of meetings took place but I would like to see more listening on the part of the Government and the Minister of State. Amendment No. 32 is an important amendment.
From talking to disabled people in recent days, it is apparent that many of them are becoming cheesed off. They wonder if there is any point in amending the legislation and that perhaps it should be rejected in total. For what it is worth I will plough ahead. We will make our decision based on the product that appears at the end of the process. It is important to put on record that all the disability groups and disabled people themselves have major concerns about the legislation. They want us to strongly support amendment No. 32. I am very much in favour of a review being carried out. I spoke last week to some party colleagues of the Minister of State who supported this amendment. They said this to me in private so I will not declare who they are. They strongly urged those in Opposition to support this amendment.
Flaws and gaps already exist in this proposed legislation. I predict that if we do not provide for a review, major problems will appear later. It is important that we try to pre-empt this. In dealing with amendment No. 32, we are talking about the 8% of the population which comprises people with physical and intellectual disabilities. Their concerns are reflected in the amendment. There are also major concerns about the definition of disability.
In terms of services and rights for people with disabilities, I received a phone call from a parent of an autistic child on whose behalf I made representations to the Department of Education and Science four or five weeks ago, I was annoyed to find out that there has still not been any progress towards getting the child a school place next September. During the debate on the Bill in recent weeks, speakers referred to gaps in the provision of services, but what I have referred to is a disgraceful situation. The family of this autistic child is trying to get a guaranteed place in a school for their child. They are planning ahead. They are very creative and sensible people, yet they are getting all this grief.
The battle for rights goes on. When we use the term “rights” we should remind ourselves what we are talking about: our people, citizens, taxpayers, children, parents, friends and relations. It is not a grandiose term nor is it what some people see as an attempt to introduce soft, liberal, left phraseology into legislation. As I stated last week, we have an opportunity to do something for people with disabilities and it is important that we do so.
We should also reflect on the negativity that exists in certain sections of the community towards people with intellectual disabilities. Residents groups have lobbied against community houses being set up in some areas. These issues should not be taken lightly. Disabled people, especially those with intellectual disabilities, appear to get into difficulty in certain communities. I challenge politicians and those involved in residents groups who object to community houses being built. These houses provide an excellent service which we should all support. Amendment No. 32 proposes that a review should take place three years after the commencement of the legislation. Rights for people with disabilities mean the provision of services and the bringing of real meaning to the definition of the word “inclusion”.
The legal eagles in the Department of Justice, Equality and Law Reform appear to believe that all the difficulties have been sorted out legally and constitutionally for the future. That is not the message we received over the weekend. I believe a number of legal experts in the native county of the Minister of State, Deputy Fahey, have stated that there could be trouble in future with the rights issue. They have expressed concerns about the legislation. I remind people about Article 34.1 of the Constitution. I also warn the Minister of State about Article 6 of the European Convention on Human Rights and also Article 42.4 of the Constitution which deals with appropriate education. Genuine concerns exist in regard to these issues. The Minister of State should accept amendment No. 32. It is progressive and adds teeth to the legislation.
Minister of State at the Department of Justice, Equality and Law Reform (Mr. Fahey): On Deputy Finian McGrath’s point that the battle for rights goes on, I suggest that the battle for services goes on. I agree with him that there are gaps in the service.
The Opposition is being a little disingenuous in respect of this amendment. Following what was said on Committee Stage, I introduced an amendment to allow for the review of the operation of the legislation within five years of its commencement. In setting that five-year timeframe, I decided to link the timing of the review with the end date for the multi-annual investment programme in 2009. That was in response to the very cogent points that were made by Members and also by the DLCG.
Amendments Nos. 31, 32 and 199b would require a review within three years. As I pointed out on Committee Stage, the legislation, as amended, would allow the review to take place not later than five years after its commencement. I was being specific by including the term “not later than five years” to address the point being made by Deputy Lynch, namely, that the review, if it is felt necessary, should start within three years.
I do not know why there is such concern. I have responded magnanimously to the proposal made on Committee Stage. I am satisfied that I have responded adequately in settling on the wording of the amendment, which states the review must take place not later than five years from the commencement of the Act.
A number of other issues were raised which we dealt with in great detail on Committee Stage. I do not intend to address them again in detail but I will certainly furnish what I have already said to the Deputies concerned. Let us consider, however, two points that were made, one by Deputy Stanton on the definition of mental illness and episodic illness. We have widened the definition to ensure that all forms of disability, including mental illness, are covered. The Deputy referred, for example, to depression. Clinical depression, which is curable medically, is not included in the definition of disability, whereas continuous forms of depression, including bipolar depression and schizophrenia, are covered. It is as simple as that and there is no rocket science involved.
Mr. Fahey: I am using the example of clinical depression, which is treatable and curable. It is not, and was never intended to be, included in the definition of disability. Clinical depression is not a form of disability, whereas the more continuous forms of mental illness, such as those I have mentioned, are disabilities according to the definition. We have widened the definition to ensure that no issue will arise in this respect.
I have dealt with the issues raised by Deputy Lynch in great detail on Committee Stage and do not intend to revisit the debate. I have explained, as well as I can, what is involved in respect of the issues she raised. She gave the example of a person who is able to participate fully in life and implied that he would not be covered by the definition. He would be covered because he still has a disability. The person in question is participating fully in life — we all admire him for this — but he still has a disability in that he is blind. This includes him in the definition and there is no argument about that. I do not know how many times I will have to explain that conditions such as his are covered by this legislation.
We have been most anxious to respond to the points made by the Deputies and have done so to the greatest extent possible. On Deputy Finian McGrath’s points, there will be lawyers who will want to find this Bill unconstitutional. Some lawyers earn a great deal of money in this way and good luck to them. Some lawyers surprised me in that they earned much money by giving advice to disability groups. If they were genuinely interested, they would surely have provided their services free of charge.
Mr. Stanton: I have a friend who cannot walk and who is, therefore, in a wheelchair. He has a job and is actually making more money than me because he is highly gifted. He is able to carry on a profession, business or occupation in the State. If one were in this man’s company at night, one would note that he is well able to participate in the social and cultural life of the State. He is great craic and great fun. He receives no services because he does not need them.
Mr. Stanton: ——he does not have a disability. The legislation states that a disability, in respect of a person, means “a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State”. This does not arise in the case in question. According to the Minister of State’s definition, a man in a wheelchair who cannot walk does not have a disability. That is cockeyed.
According to those who have studied the Bill, the definition excludes people more than it includes them. It excludes many people and is specifically designed to do so. We want the legislation to be reviewed earlier than is proposed. Does the Minister of State want the review to be completed——
Mr. Stanton: ——not later than five years after the commencement of the Act? Will it be started or completed by then? Will the review be completed and on the Minister of State’s desk not later than five years after the commencement of the Act?
Ms Lynch: When the dual mandate was abolished — one might question what this has to do with the Disability Bill — the relevant legislation stated that local authority management would have to meet, consult and inform Members of the Oireachtas within a 12-month period. The manager of Cork City Council called the relevant Deputies in for consultations on Christmas Eve. He gave us mince pies and mulled wine and told us what was happening in the city. He did so just before the deadline and fulfilled his obligation under the legislation, although I would argue that he did not fulfil his obligation to us. The county manager was somewhat better because he called us in during Christmas week.
The Minister of State said that he has conceded regarding the timeframe and that he expects the review to start not later than five years after the commencement of the Act. Perhaps I am wrong and have a cynic’s view of the world — I do not believe that to be the case — but it is my opinion that those charged with implementing this legislation and providing services will start the review a week before the five years have concluded. That is what concerns me. That is why I would much prefer the Minister of State to say the review should begin after three years from the implementation of this particular legislation. He can understand my position on that. My experience of the legislation abolishing the dual mandate assures me that people will not do something that is against their will unless they absolutely have to and, in the event, it will be at the very last minute. That is why this amendment is important. I accept that the Minister of State has listened to our arguments on Committee Stage. I still believe he needs to set a time well before the five years have concluded.
Aengus Ó Snodaigh: I concur with Deputies Stanton and Lynch on this. It is not unreasonable that a review should begin at the end of the third year, on Christmas Eve or New Year’s Eve. It should begin within a maximum of two years of operation or three years from enactment. I would go further and argue that the review should be completed within a set timeframe. We do not have that luxury at this stage, but the review should cover specific areas which the Minister of State has not allowed, as yet. In particular, I have in mind the definition of disability, as mentioned previously.
It is not I or some highly paid lawyer who has come up with the great fact that the disability definition contained within this legislation is at odds with the definition contained within the Equal Status Act or in the employment equality legislation. It is ridiculous that we have several definitions of disability. The definition should be the same across the board. That is what the Opposition, those who took part in the consultative process as well as other organisations such as the Equality Authority sought when this Bill was being put together.
In the February 2003 document, Equal Citizens: Proposals for Core Elements of Disability Legislation, it was felt at that stage that there should be a review within two years of operation or three years since enactment. It also said that there should be a review of the definition of disability using the proposed legislation as well as other provisions. The Minister of State should listen at this stage, take this on board and I hope we can come back in two or three years and correct the wrong he is about to put in place this week.
Mr. Fahey: That is correct, but the amendment I have brought in allows a review to take place, should that be necessary. The spirit of this amendment is that a review should take place and be completed within five years.
Mr. Fahey: I will again clarify for Deputy Stanton that a person in a wheelchair who can enjoy full life benefits, as he described, is included in this Bill. That person is limited in his or her capacity because of being in a wheelchair. Such persons are covered by this Bill and it is absurd to assert that someone in a wheelchair is not disabled, as he suggests.
Mr. Stanton: I do not suggest it. I am just setting out the definition of disability as contained in the Bill. It talks about a “substantial restriction” in the capacity of a person to carry out a business, profession or occupation. If a person can carry out a business, profession or occupation, he or she does not have a substantial restriction and as such is not covered. If the person can enjoy life and is able to become involved in the social or cultural life of the State, then he or she is not provided for in this Bill. The definition says there must be a substantial restriction in the capacity of the person to carry out a business, profession or occupation. I know quite a number of people with impairments, who hold down well paid jobs and who are quite independent. These are not covered in the Bill and they are concerned about this because they see themselves as being excluded and omitted.
The Minister of State did not answer my question, either, about people with dyspraxia, epilepsy and so on. This trend shows that the answers are not available when the questions are raised. For those reasons I am pressing this amendment.
I suggest the introduction of a new officer, called the needs officer. We have discussed this already and many people are concerned at what they regard as a major build-up of bureaucracy. There is an assessment officer and a liaison officer. I suggest that both functions could be carried out by the same person. There is no reason this should not happen. On reading the legislation it is clear that the Health Service Executive could appoint one person to do both jobs. One person must carry out an assessment and draw up a statement which is presented to a second person who must find out what services are available from the Health Service Executive in the face of all types of restrictions. It is difficult to see how this liaison officer can reconcile the needs of the person with the resource constraints and the Bill fails to set out a method or criteria for doing this.
I would like if the Minister of State could come back to me on this as it is an important point. How is the liaison officer to reconcile the needs of the person with the resource constraints imposed? The Bill is silent on this. The liaison officer must find out from the Health Service Executive what money or resources are available. How can he or she do that, especially if a number of liaison officers are working together? How are they to know what is available? We are putting this into the legislation and it is not clear how it will operate. The resources should be defined by reference to needs rather than the other way around. The latter is happening and is another major flaw in the legislation. I know we are up against time, but I want to challenge the Minister of State on this. Perhaps he could deal with it tomorrow morning. I want him to tell me how the liaison officer is supposed to reconcile the needs of the person exactly with the resource constraints. Liaison officers will be told they can only provided a limited amount, as specified in the budget. How is that going to work? It is written into the legislation very tightly.
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