Disability Bill 2004: Presentations.

I welcome the representatives of the Irish Insurance Federation, Ms Jennifer Hoban and Mr. Niall Finnegan. While members of the committee enjoy parliamentary privilege, unfortunately, witnesses do not. I invited Ms Hoban to make a presentation, not exceeding seven minutes.

Ms Jennifer Hoban

I thank the committee for inviting us to discuss the Bill and the concerns of insurers. We made a written submission to the committee some time ago to which I will refer. The purpose of the submission was to give a context to our concerns about the Bill. The IIF represents life assurance companies operating in Ireland. Our members write the vast majority of life assurance business.

Part 4 of the Bill concerns us most. It deals with access by insurers to genetic test results and the medical history information of families. In describing our concerns we need to put the provisions in context and explain how life assurance works. Members will be familiar with the general principles. Insurance is about the pooling of risks. All insured persons contribute to the pool which enables us to keep the cost affordable. One of the principles of pooling is that people who have below average health and, therefore, a higher chance of claiming from the pool pay more for their insurance. One of the basic principles of insurance is that everyone pays his or her fair share and, therefore, some pay more than others.

The submission outlines the main types of cover because there is a difference in the impact of the legislative proposals depending on the level of cover. Life cover policies pay an amount on death and critical or serious illness policies pay out if someone is diagnosed with an illness covered by the policy. Long-term disability insurance policies which provide an income if people are unable to work are also available. These types of cover will be affected by the legislation.

When somebody applies for insurance, he or she goes through a process to determine whether he or she should pay the average premium because he or she is an average risk or pay an above average premium because he or she is an above average risk. The submission outlines the procedures people go through. They fill in an application form in respect of which the insurer may ask them to take a medical and seek a report from their GP. The intention is to get a picture of the individual's state of health and then, by using statistics relating to people who have a similar condition, to determine what premium he or she should pay. Insurance companies try to examine every case on an individual basis. There is not a standard industry practice. It is competitive and practices will vary.

We estimate 95% of people get life cover at the average premium, 4% at a higher than average premium while 1% are declined. Therefore, the vast majority who seek life assurance from insurance companies get cover at the average premium. The right of insurers to treat categories of people differently is enshrined in the Equal Status Act. Insurers can treat people differently if they rely on reliable actuarial and statistical data or other relevant underwriting or commercial factors.

Underwriting is only done when the person takes out the policy. People may seek a policy that will last 20 or 30 years. The only relevant issue is their state of health when they apply for insurance. If their health changes subsequently, the insurance company cannot revise the contract. It is a long-term business and we must take a long-term view because we are often tied into premium rates which are set on day one. Insurance contracts have particular features. There is a legal obligation on those who apply for insurance to be up front about their health and disclose everything to the insurance company that may impact on their health.

Concerns have been expressed about genetic information to which insurance companies have responded. We introduced a voluntary code of practice in 2001 which provides that somebody seeking life assurance in conjunction with a mortgage, for example, can obtain cover up to €381,000 without having to disclose test results. Given that the average housing loan is approximately €170,000, most people can get a reasonable amount of cover without having to worry about the disclosure of test results. This was done in response to the concerns of many about genetic information.

I refer to the provisions of the Bill. Our main concern is that somebody applying for insurance may know more than the insurance company when he or she applies. If he or she knows something that is not required to be disclosed, he or she may seek more cover than he or she would otherwise obtain or seek cover where he or she otherwise would not seek it. He or she would be charged a lower premium than he or she would be entitled to, in theory, based on his or her state of health.

Section 40 proposes a ban on access to genetic test results. We have a voluntary code that goes some way towards this. Therefore, we do not necessarily have a concern about the ban limiting access but we are concerned that insurance companies need to be protected regarding large amounts of cover, as provided for under the voluntary code. Similarly, section 41 proposes restrictions on access to information on family history. Such restrictions may impact on our ability to write certain forms of cover, in particular, critical illness insurance.

The Bill's provisions should be open to review much sooner than 2014. This a rapidly changing scientific field and we want it kept under regular review to assess what is its impact in the marketplace. We also have concerns about the definition of "genetic testing" which goes further than predictive tests and may, unintentionally, stray into other areas. We have made suggestions to the Department in this regard.

I welcome the delegation. Most of us were taken aback when the IIF sought a hearing before the committee because we did not understand it had concerns. How many people qualified for long-term illness benefit under an insurance policy in the past four years?

Ms Hoban

Many people have taken out this cover. Successful claims under these policies amounted to approximately €30 million in 2003.

Restrictions on this cover have become so severe that it is virtually impossible to take out a policy. One would have to lose half one's faculties before making a successful claim. I am not certain why insurers are nervous in this regard, given the restrictions in place.

Ms Hoban

There are two types of cover. Critical illness policies will generally pay out a lump sum. Therefore, it is a once-off payment. The long-term illness policy relates to permanent health insurance. As the claims experience of insurers in this area has been negative, everybody may not obtain such insurance. If people have jobs with a strong manual element or if they have a history of a condition that may keep them out of work, they may have difficulty obtaining cover. Critical illness cover is not as restrictive and few would fail to get it.

Mr. Noel Finnegan

Typically less than 1% cannot get life assurance while less than 5% cannot get permanent health insurance. It is similar for critical illness cover. I am unclear about the question. Is the Deputy asking about access to cover or about claims?

Access to cover is as liberal as ever but the payment of claims has become restrictive. If one reads the small print, when one thinks one may have a claim on a policy, one finds it impossible to make the claim. I do not speak from personal experience but I am aware of a number of people who had difficulties in this regard in recent years.

I refer to genetic testing. Insurance is a no risk industry. It is supposed to cover me for any risk I take but insurance companies ensure there is no risk. The assessment of risk is so refined that there is virtually no risk to the insurer. I worry about insurance companies having access to genetic test results or being permitted to insist on people taking a genetic test. For example, a person whose family has a history of cystic fibrosis may not want to know whether he or she is carrying the gene. However, granting insurance companies access to genetic test results ensures the limited risk run by them will be limited even further. If they had access, would they consider women over 40 years who became pregnant to be too much of a risk to take on? They could have children who suffer from Down's syndrome. Would insurance companies insist they take a genetic test to establish whether they were a risk? Generally people do not take out massive amounts of cover. They take out enough to cover their outstanding liabilities.

Ms Hoban

There is no question of insurance companies asking people to take genetic tests. The issue is whether somebody who may have had a genetic test result is required to disclose it to an insurance company. We have no intention, irrespective of what is contained in the legislation, of sending people for genetic tests. Tests are taken by people on their own initiative. If somebody takes out insurance and subsequently has a genetic test, that will not have an impact. I am not sure if that directly answers the question but I hope it addresses some of the concerns.

I welcome the Irish Insurance Federation to the committee and thank them for their submission. This is very important legislation. Your submission refers to concerns about Part 4 of the Disability Bill which states that access to genetic test results and family medical history information raises significant issues for life assurance companies. Can you give me an example of the types of issues?

My second question relates to dealing with the provisions of the Disability Bill. The submission states that the concerns of the insurers in relation to the Bill stem from the potential for ante-selection and that this raises the possibility of higher than anticipated claims and significantly increased costs for all policy holders. Perhaps you could develop this point, particularly the costs for all policy holders.

It is also stated that technical amendments are required to the definition of genetic testing to ensure that only predictive tests are covered. Do you intend to submit amendments and can you give me an example? Is it fair to say that some of your views as expressed in your submission could be interpreted as an infringement on civil liberties or the right to privacy? Is that an accurate view or is it an exaggeration?

Ms Hoban

An example of some of the concerns we would have is where somebody has had a genetic test for a condition and it is positive. They therefore know the chances are that they may have a shorter than average life expectancy. They are not required to disclose it when they apply for insurance and, because of the way the legislation operates, that person would be treated as though they did not have a lower than average life expectancy. That would mean that they would be charged an unduly favourable premium and effectively would mean that they were subsidised by other policy holders who were paying the correct premium. It is that kind of inequality that arises.

A person who knows something about his or her health which they are not required to disclose may look for insurance cover which they might not otherwise have been concerned about or take out more cover than they normally would. That latter tendency is what we call ante-selection. If that happens across a population, the impact can be significant. It is not necessarily easy to quantify.

Is there a rough percentage?

Ms Hoban

Our experience would be that people do not always tell us the health information that they should tell us.

Would you know from your experience if it would be 10% or 20%?

Mr. Finnegan

It varies. At a younger age it is a lower percentage because typically people have fewer health conditions which would require to be disclosed. It can be in the low single digit percentages, perhaps 3% or 4%. When a person is over the age of 50 when typically there will be more medical history, it could be as many as one in ten people who would not tell us about something that would be a factor.

Over 51, about 10%.

Mr. Finnegan


Ms Hoban

It can be significant. The argument very often put forward about why insurance companies should not have access to test results is that people who are considering taking a genetic test should not be put off by the possible insurance consequences. I am sure that argument has been made already in the context of this Bill. The definition of genetic testing as we understand it goes further than just predictive tests. Where someone has not symptoms yet, a predictive test will identify the chances of their developing a condition at some point in the future. The current definition in the Bill would appear to include tests where people actually show symptoms of a condition. When somebody already has the condition, the argument does not stand that he or she will be put off having the test because they do not know whether or not they will develop the condition. There is a distinction between predictive and diagnostic.

The final question related to privacy. As an industry we need health information about people in order to assess the risk. If we do not get the information, we cannot assess the risk. Depending on the type of cover, we will have to ask very detailed questions about an individual's health, including their family history. Insurers will not ask for information unless they feel it is necessary to the assessment of the risk and they will also have in place within the companies confidentiality rules to ensure that this information is treated with the respect it deserves. We are conscious of the fact that we are privileged that people give us this information, which is necessary in terms of what we do. We take our responsibilities seriously.

Thank you for sharing the information with us. I am sure the committee will take your views into consideration.

I was obliged to be in the Dáil during Taoiseach's questions and I have not seen the brief. However, I will read it and if I have any questions I hope I can get back to you privately.

I welcome Niall Crowley, chief executive officer of the Equality Authority, and Eilis Barry, legal adviser. You are both very welcome. Last week the committee heard the views of the Human Rights Commission and today we are most interested to hear the presentation by your organisation. You are both aware that you do not enjoy privilege in respect of any remarks you make.

Mr. Niall Crowley

Thank you for the opportunity to address the committee on the Disability Bill and the Comhairle (Amendment) Bill. We have circulated notes which I will not go through but simply raise the core issues.

There is a considerable overlap between the Disability Bill and the equality legislation. Our starting point is that our functions to promote equality of opportunity and to eliminate discrimination in employment and the provision of goods and services extends to some of the areas covered by the Disability Bill. That is particularly relevant in terms of access to and use of public services for people with disabilities and employment of people with disabilities in the public sector.

The submission has been circulated to members of the committee. We sought to establish what impact the Bills might have on the operation of the equality legislation and, in particular, whether they build on and add to the provisions already made in the equality legislation, whether they diminish or reduce the existing provisions, or whether they cause confusion as to what precisely the responsibility of public bodies is in providing access to and employing people with disabilities.

A number of key provisions in the equality legislation are relevant to this discussion and we have set them out in the notes. They relate to the prohibition on discrimination by public service providers, provisions concerning indirect discrimination by public service providers, the positive duty on public service providers as regards the reasonable accommodation of people with disabilities in the provision of goods and services, and reasonable accommodation in the employment of people with disabilities.

The Acts also include provisions regarding positive action in the areas of service provision and employment. Both Acts include a very broad definition of disability, which includes people with physical, intellectual, learning, cognitive or emotional disabilities, and a range of medical conditions. The provisions of the equality legislation are also enforceable through the Equality Tribunal. It is important to note that the Equal Status Acts exempt the taking of any action that will be required under the Disability Bill and the Comhairle (Amendment) Bill.

In looking at the Disability Bill 2004 from the perspective of the equality legislation, a starting point would be to welcome the idea of new administrative systems that form part of the disability strategy, such as sectoral plans, multi-annual investment programmes, needs assessment and advocacy services. The development of such systems is the key to a service provision that responds better to the needs of people with disabilities.

The two Bills that have been published as part of this disability strategy should underpin and guarantee these new administrative systems. However, our analysis suggests that this is not the case, given the issues of scope that arise and given the tensions that are evident between the new legislation and existing equality legislation.

In effect the new administrative systems would be better guaranteed and underpinned had the legislation imposed a positive duty on all public bodies to promote equality. That has been the approach in other jurisdictions, particularly in Northern Ireland and Britain. In Northern Ireland there is a duty on specified public authorities to have due regard to the need to promote equality of opportunity in carrying out their functions. That involves a range of named grounds, including the disability ground. These public authorities are required to prepare equality schemes and to conduct equality impact assessments in accordance with guidelines established by the Equality Commission for Northern Ireland. Such an approach here would have the added benefit of covering the whole public sector, rather than just the six Departments named in the disability strategy which have to produce sectoral plans.

The issues of scope relate to the definition in the Bills of people with disabilities, in addition to the way in which resource issues are addressed in the Bills and to the way the need for advocacy services is assessed.

The issues we are raising suggest that the Bills do not add to or build upon the existing provisions. In the first instance, the definition of people with disabilities in the Bills marks a move away from the inclusive and non-hierarchical definition used in the equality legislation. The provisions of the Bills will apply to a far smaller group of people with disabilities. The narrow definition used in the Bills will create a hierarchy of people with disabilities, which is not allowed under equality legislation. Under the equality legislation the majority of people with disabilities have enforceable rights concerning employment and access to services, subject to exemptions. In contrast, the provisions of the new Bills as regards public sector employment and access to public sector buildings and services apply to a far smaller group of people with disabilities and are not enforceable. Our recommendation is that a more inclusive definition of people with disabilities should be used.

Section 5 of the Disability Bill would appear to impose a serious restriction on the allocation of resources to the services envisaged by the Bill. At best, it would appear to limit services envisaged by the Bill to a residual situation where funding is made available only after all other responsibilities are met. At worst, it would appear there is no obligation to allocate resources to these services. Our recommendation is that section 5 should ring-fence the resources necessary for the implementation of the Disability Bill and the Comhairle (Amendment) Bill.

The third scope issue relates to the Comhairle (Amendment) Bill where the entitlement to a personal advocate depends on a range of matters, including the director's opinion that there is a risk of harm to the applicant's health, welfare or safety if they are not provided with social services. That represents a significant limitation on access to advocacy services and our recommendation is that it should be deleted. We have also suggested the need for a broader definition of advocacy services to include community advocacy and community visitor programmes.

The final area of focus is the issue of tensions with the equality legislation. The core tension is the move away from the inclusive, non-hierarchical, rights-based model that exists in equality legislation. There are particular issues relating to resources, reasonable accommodation and enforcement. These issues suggest that the Bills could reduce and diminish existing provisions and be a source of confusion for the public sector.

The provisions of the Equal Status Acts are subordinate to the taking of an action required by another statute. As such, any action required by the Disability Bill will be used as a defence to any claim under the Equal Status Acts. Public service providers are obliged not to discriminate, directly or indirectly, on the disability ground. They are obliged to provide reasonable accommodation for people with disabilities, unless it costs more than a nominal sum. These obligations may, inevitably, require the allocation of resources. Section 5 of the Bill means that public service providers will be able to argue that they are obliged in certain circumstances not to allocate resources to services envisaged by the Bill.

Section 5, therefore, may provide a defence to claims of discrimination, particularly in determining what is justifiable as regards indirect discrimination, and regarding reasonable accommodation. The Bill should state that nothing in the Bill diminishes, in any way, legal obligations with respect to people with disabilities that are imposed under the equality legislation.

Regarding reasonable accommodation, the provisions in the Disability Bill on access to buildings and services would appear to fall short of those which are already provided for under equality legislation. They apply to a far smaller group of people and they are dependent on resources having been allocated pursuant to section 5. Buildings must only be accessible "as far as practicable" by 2015. The provisions for services are limited to ensuring that access is integrated. These provisions would appear to fall short of requirements under the Equal Status Acts concerning reasonable accommodation. We recommend that a more effective approach would be to make reasonable accommodation for public service users with disabilities, subject to a disproportionate burden on the service provider. That would be an advance on the current exemption where it is subject to a nominal cost on the service provider. In this way the Disability Bill would enhance and build on the equality legislation and would reflect developments that have already taken place on the employment of people with disabilities under the Employment Equality Acts.

As regards the reasonable accommodation provisions, it is important to note that jurisprudence of the Equality Tribunal and the Labour Court suggests that making reasonable accommodation requires an assessment of need of the person with disabilities. As such, the assessment of need provided for under the Disability Bill should be broad enough to constitute an assessment of the full spectrum of needs for the purposes of making reasonable accommodation with regard to all services provided by health boards and other public bodies and regarding education. This should happen alongside the assessment of their need for disability-specific services.

The compliance mechanisms surrounding the provisions in the Bills are bureaucratic, complex and resource-intensive. They fail to build on the model of enforceable and accessible low-cost remedies through the Equality Tribunal under equality legislation. Our recommendation is that the compliance mechanism should make use of the existing equality infrastructure.

Our view is that the Bills introduce valuable new administrative systems but fail to build on and add to the provisions of the equality legislation, and they could actually diminish and reduce existing provisions. They will be a source of confusion in the public sector regarding obligations concerning people with disabilities.

We have made a number of recommendations for change, which are set out in more detail in our submission that has been circulated to members of the committee. I have flagged a number of the key ones as I have gone through these speaking notes. I would flag, in particular, the importance of the recommendation where we seek to draw from the experience of the Accessibility for Ontarians with Disabilities Act 2004, to ensure that existing equality legislation and the protection it affords are not diminished in any way under the new Bills.

Part 1, section 3 of that Canadian Act provides, "Nothing in this Act, or in the regulations, diminishes in any way the legal obligations of the Government of Ontario or of any person or organisation with respect to persons with disabilities that are imposed under any Act or otherwise imposed by law." An amendment to that effect would protect the equality legislation and the existing provisions therein.

I thank Mr. Crowley for his interesting presentation. Does he think the Equality Act should have been amended with particular reference to disabilities rather than bring forward a Disability Bill?

Mr. Crowley

Significant advances would have been made by amendments to the equality legislation, in particular, by the introduction of a positive duty to promote equality which would have covered and ensured many of the administrative systems suggested in the disability strategy. The reasonable accommodation provisions are very powerful and could easily have been further developed, particularly in the area of service provision. That would have marked a significant step forward for people with disabilities.

Does Mr. Crowley think this undermines the equality legislation which has been so carefully built up in recent years?

Mr. Crowley

As it stands, there are contradictions, particularly in regard to the availability of resources and the fact that section 5 of the Disability Bill could be used as a defence in claims made under equality legislation. It would, in effect, therefore, diminish current provisions. That is why we would have focussed on the way the issue was resolved in Ontario by way of specific provisions to ensure existing legislation could not be undermined by this new Bill.

I am sure there is no intention to diminish the legislation in place in any way.

Although Mr. Crowley's submission was short, it contained much. I thank him for being brief and to the point. I will probably need to study it in detail because he said a lot in a short period.

Was the Equality Authority consulted in drafting the Disability Bill? Mr. Crowley was critical of the definition contained in the Bill. Does he have an alternative, or does he think the definitions contained in the other Acts would suffice?

The Chairman has asked whether this Bill marks a regression on equality legislation. Mr. Crowley's answer seems to suggest that if it is brought forward, that could be the case. Could it be amended to make it acceptable or bring it up to the standard the Equality Authority would like?

The Bill is quite complex. Section 5 is very difficult to understand. Some barristers have told me they find it difficult to follow, not to mention lay people. Given that parents and others must read this Bill, I cannot understand why those who drafted it could not have written it in language which would be easier to understand. If barristers find it difficult to understand, how can the ordinary citizen whom we purport to serve understand it? I challenge anybody to read the section to see if they can make sense of it because it is gobbledegook. However, that is another issue.

Is that a question?

It is.

Mr. Crowley has said it appears that under section 5 there is no obligation to allocate resources to the services in question. Am I right that the section could be interpreted as suggesting that when all the other obligations of the health boards have been met what is left over can go to people with disabilities? That would be fine if there were huge funds over an indefinite period. We hope to see multi-annual funding programmes and a large tranche of funding in tomorrow's budget. After the five years have elapsed——

It is a rolling multi-annual funding programme.

"Rolling" is a new word.

Mr. Crowley has said the provisions of the Equal Status Act are subordinate to the taking of an action required by another statute. This seems to indicate the Disability Bill will take precedence over the Equal Status Act. Therefore, instead of having an enhanced service, people with disabilities could end up in a worse position. Is that what Mr. Crowley is saying?

It has been argued by others that there is no right to an assessment as such in the Bill, that it could be argued it depends on the availability of resources. In other words, if somebody looks for an assessment and the health board or authority has no money left, it could use this as a defence not to provide for an assessment. If people cannot have an assessment made, they have no hope of accessing services.

Mr. Crowley has reinforced my worries about the Bill. He maintains that some of its provisions could cost a lot in terms of bureaucracy. If that is the case, resources could end up being spent on bureaucracy rather than on services. He used two terms, "equality of opportunity" and "equality". I am aware there is a difference between the two. Perhaps he might explain the difference because it has come up as an issue in the debate. The Minister for Justice, Equality and Law Reform keeps talking about equality of opportunity, in other words, equality. I would be interested in hearing Mr. Crowley's views on the matter.

I welcome Mr. Crowley and Ms Barry and commend the Equality Authority on its excellent work, particularly on the issues of equality and discrimination. It is particularly relevant that it has come before the Joint Committee on Justice, Equality, Defence and Women's Rights because at times it undertakes many difficult jobs and takes unpopular stances in dealing with discrimination. I commend and thank it for its work which I know at times can be very difficult. There are people who can be hostile towards it.

Mr. Crowley has said the definition of "people with disabilities" moves away from the inclusive definition used in equality legislation. Does he see this as a major flaw in the Bill? Section 5 appears to impose a serious restriction on the allocation of resources. Mr. Crowley has said that, at worst, it appears there is no obligation to allocate resources to disability services. From his experience in working with people with disabilities, is the issue of resources and finance for services always a major one when people with disabilities seek to assert their rights as citizens?

Mr. Crowley spoke about the tensions between the Bill and equality legislation. On access to buildings and services, he has said it appears to fall short of what is provided under equality legislation. It is up to us, as legislators, to get it right. From his experience in dealing with people with disabilities, could planners, builders and society at large be more creative in resolving these issues?

I refer to employment, particularly in the public sector. Public sector employers must take appropriate measures to provide access to employment, training and so on. There is a 3% quota and examples of good practice. I believe Dublin City Council has exceeded the quota and that people with disabilities make up 4.3% of its staff. Are there examples of good practice in the wider community which public and private bodies could follow? What are Mr. Crowley's experiences in this regard in recent years?

I also welcome Mr. Crowley and Ms Barry to the hearings this afternoon. My question relates to the definition of "disability". Mr. Crowley said he envisaged the services being available to a far smaller group of people with disabilities should the proposed definition be used eventually. Can he tell me more about the larger group who would not benefit if the proposed definition was used? Can he give practical examples?

Mr. Crowley

I thank members of the committee for their welcome and kind words.

The issue of the definition has been raised by everyone. It is a major issue. The proposed definition is far narrower than the one used in equality legislation and very restrictive in terms of the benefits that could flow from the Bill to people with disabilities. We have not brought forward an alternative. The definition we use is the one we would prefer but we need to discuss how the issue should be approached. The proposed definition could be used to exclude whole groups of people with disabilities who should have their needs assessed and need access to public sector buildings and services. We need to focus on this issue. While we would prefer to see a common definition — our own — used throughout equality legislation, it is clear the proposed definition would be hugely restrictive.

Will Mr. Crowley give examples of where people with disabilities will not be covered?

Mr. Crowley

They could include people with mild learning difficulties. There are two elements to the definition. There is a substantial restriction of the capacity of a person to carry on a profession, business or occupation, or to participate in the social or cultural life of the State by reason of an enduring physical, sensory, mental health or intellectual impairment. The definition is further elaborated on in Part 2 where "substantial" is construed as meaning a restriction which is permanent or likely to be permanent which results in significant difficulty in communication, learning or mobility and gives rise to a need for services to be provided to the person continually. Immediately people with a mild learning disability would be focused on. Depending on how the definitioin is interpreted in terms of significant difficulty in communication, learning or mobility, people with a visual impairment and mental health issues, currently covered by the legislation, could fall into this category.

On whether the Bill represents a regression from equality legislation, this is the possibility we are bringing forward. We have raised a number of issues in this regard in terms of how resources are dealt with and how the Bill could be used as a defence in dealing with claims under equality legislation, how the issue of reasonable accommodation is approached and how enforcement mechanisms are not being used.

We have made practical suggestions on how the position could be improved. The key suggestion is that provision could be made in the Bill to ensure it would not diminish existing rights or protections. To be more proactive, the Bill could examine the existing reasonable accommodation provisions under the Equal Status Act. There is currently a requirement to ensure reasonable accommodation for people with disabilities, subject to a nominal cost exemption. In regard to public sector services provision could be made to remove this nominal cost exemption and provide for an exemption in terms of a disproportionate burden. This would substantially improve the level of access for people with disabilities and reflect existing provisions in regard to their employment. It would be a significant development in equality legislation and improve the position of people with disabilities.

We also recommend the positive duty approach to ensure public sector bodies would have due regard to the issue of equality in carrying out their functions. This approach was developed recently in Britain and is well established in Northern Ireland. It is considered a significant and effective way forward in ensuring administrative systems are put in place to take account of the fact that there are people with disabilities among the employees and those who seek to provide services. There is a challenge to target the specific needs of people with disabilities.

Another key section for amendment is section 5. While it is a complex matter, it could be interpreted in the ways we have suggested whereby services to people with disabilities would become residual in nature or there would be instances where there would be no obligation to provide such services. That is the intention of equality legislation but it could be amended to ensure a ringfencing of resources to implement the provisions of the Bill. Like the proposed definition, section 5 requires significant attention and could be developed in useful ways.

On the question of equality legislation being subordinate to this legislation, this relates to an exemption provided for in the Equal Status Act whereby anything required under another statute is effectively exempt from proceedings. This creates a huge space for the public sector to avoid obligations under equality legislation. It is important the new legislation should not create further barriers for people with disabilities. This is why we suggested nothing in it should diminish existing protections.

On the question of whether there is a right to an assessment of need, our analysis suggests that under section 5 it is resource dependent. There are also broader issues to the extent that the statement of service could be viewed as just another document and might not relate to an assessment of need. This involves significant resource issues. In terms of bureaucracy, we suggest that this would probably be costly and that a more economic approach would be to use existing equality infrastructure such as the Equality Tribunal to resolve issues. This would mean claims could be investigated and mediation services would be available in resolving issues. I will come back to the issue of equality of opportunity.

Deputy McGrath raised the issue of the definition which we have covered in terms of its potential to restrict groups of people with disabilities. Section 5 and the matter of resource are major issues. They could do with clarification and further development to ensure the legislation will mark a meaningful step forward for people with disabilities. The issue of resources is a dominant one and probably lies at the heart of many of the problems being experienced. The extent to which it can be advanced and how the legislation will underpin the multi-annual budgeting programme approach will be crucial.

We have set out the tensions regarding the requirement reasonably to accommodate access to buildings and services as opposed to the more limited approach in the Act. It is limited because it is a smaller group of people, because of the phrase "as far as practicable", because there are timelines up to 2015 and because access to services is about access to integration rather than to services per se. This area comes to us constantly, in terms of casework under the legislation. Planners and builders could be more creative, but above all they could be more conscious of design for a diversity of people.

We are astounded by the level of inflexibility both in employment settings and in service provision settings in relation to making reasonable accommodation of people with disabilities. That is why we see this as such a powerful tool in improving the situation of people with disabilities. A further enhancement of that provision in our equality legislation through the disability legislation would mark a dramatic step forward.

We did some research on employers, more than 3% of whose employees have a disability and on employers who are below the 3% level. We found the major difference was in the way people counted employees with disabilities, not in what they did or did not do. We have quite some way to go before employers, in the public or private sector, develop adequate approaches to the employment of people with disabilities and to the reasonable accommodation of those employees.

We can point to some areas of good practice where more planned and systematic approaches to reasonable accommodation have come into play and where there is a commitment to recruiting people with disabilities and a capacity to dialogue with people with disabilities in relation to their needs and how best to meet them; in other words, where there is an assessment of need and a response to that need. That is why we have focused some attention on the assessment of need in the disability Bills and the importance of that becoming broader to include an assessment of need in relation to the reasonable accommodation of people with disabilities across the whole health provision and education sectors.

Deputy Hoctor also raised the issue of definitions, which I hope I have answered. We have probably used the terms "equality" and "equality of opportunity" interchangeably in the submission. "Equality of opportunity" is the wording used in the legislation. It is not actually defined in the legislation and we have sought to bring forward an understanding of equality which includes non-discrimination, accommodating diversity and taking steps to take people's diversity into account. It must also include positive action and the promotion of full equality in practice. "Full equality in practice" is an interesting set of words which has only recently come into the equality legislation on foot of the EU directives. Positive action is now allowed in the employment equality Acts in relation to achieving full equality in practice. It is a useful goal to have established in legislation.

Did I understand Mr. Crowley to say there is no example of good practice in the employment of people with disabilities? Does any organisation, semi-State or private, jump out at Mr. Crowley as a good example of employment of people with disabilities? Is there an example at EU or international level? Has any company reached a level of 5% employment of people with disabilities?

Mr. Crowley

That would also involve methods of counting, defining people with disabilities and who decides whether one is a person with a disability or not. We look at the systems, practices, procedures and policies which are in place. I do not say there is no example. There are examples. Our research of employment in the public sector tried to identify good practice. We used the figures provided to see who was doing well and who was not. The only difference we found was in the ways people counted. That is not to say there are not individual examples of good practice. There are, in both the public and private sectors, and we need to learn from those.

In most instances, there is a failure to be planned and systematic in the approach to employing people with disabilities and to making reasonable accommodation for them. That is reflected in very high unemployment levels among people with disabilities.

I find it very hard to accept that our companies, whether public or private, have not delivered in employing people with disabilities. Recently, I was in a school of 350 boys where I was told there was no child in the school with a disability. That does not represent a cross-section of Irish society. There is something radically wrong with the structures of our system when a school of that size has no child with a disability.

I say the same with regard to the private sector. Last year, a television company told this committee it employed one young woman with Down's syndrome. The company was making a big deal of that. We are way behind and we have much work to do.

Mr. Crowley

I am not saying companies have not delivered in the private and public sectors. Significant numbers of people with disabilities are employed, particularly in the public sector but also in the private sector. I am saying we could do much better, particularly when we look at the very high unemployment levels among people with disabilities.

Part of doing better involves developing new and more effective practices in this area. A key measure is to ask whether or not a classroom or an employment setting reflects the community in which we live. The answer in many instances is that it does not do so adequately and sometimes not at all.

It is interesting that Deputy McGrath raised that matter. I have had experience in the past of disabled people going into schools. To a very great extent their being accepted depends on the ethos established by the school principal. Some schools are great in that respect. Others are very reluctant. Perhaps there should be some way places of education are included as well as places of employment.

Several groups representing people with disabilities have mentioned to the joint committee that all is not well, even where the 3% target is achieved or attempted. Many people with disabilities remain on the bottom rung of the ladder in local authorities or other places of employment. They miss out on advertisements for promotion. More work remains to be done in this area.

Mr. Crowley

That is the core challenge. Presence in the work force means presence at all levels. There are significant gaps there. Recent research in the Civil Service shows that there has been some level of progression, which is encouraging.

A lot done, more to do.

We have received a huge number of submissions from a large number of different groups. They have all been very helpful. Your submission, Mr. Crowley, has been very helpful indeed. The joint committee is very grateful to you for coming here and giving your time today. You might frame certain proposed amendments for the benefit of members who might wish to put them. I am sure you will be in touch with us in time.

The joint committee went into private session at 3.50 p.m. and adjourned at 3.54 p.m. until 9.30 a.m. on Wednesday, 1 December 2004.