Joint memorandum submitted by Help the Aged and Age Concern England


Help the Aged and Age Concern are pleased to have this opportunity to submit joint evidence to the Work and Pensions Committee on:


Equality in Employment;

Equality in Goods, Facilities and Services;

The Public Sector Equality Duty;

Private Sector commitment and support, guidance, advice and information for employers;

Single Equality Act.


1. Executive Summary


1.1. Age discrimination legislation is yet to bring real changes in older people's experiences of finding work. It has to be accepted that attitudinal change will take time, but inconsistencies in the legislation, and in the approach to other areas, send out the wrong messages about encouraging employers to change their attitudes towards older people. In particular mandatory retirement ages leave a gaping hole in legislation for age equality in employment.


1.2. The DWP should be doing significantly more to champion age equality in employment and must use its role as Government lead on age equality, and lead department on extending working lives to bring an end to Mandatory Retirement Ages.


1.3. The DWP must use its role as Government lead on age equality to champion the place of age within the forthcoming Equality Bill and to ensure that robust measures to ban age discrimination in the provision of goods, facilities and services are brought forward without delay.


1.4. We welcome the inclusion of age in a proposed single Public Sector Duty. The DWP should draw on the lessons learnt from the existing equality duties - and particularly the disability equality duty - to ensure that the duty is effective in tackling institutional ageism.


1.5. Help the Aged and Age Concern welcome the Government's planned Equality Bill and believe that this represents an opportunity to make significant developments in advancing towards equality for older people. We are, however, concerned that during the process of getting from the Draft Legislative Programme to a draft Bill some of the ambition that surrounded this project is being lost, and we are concerned that there is a risk that the end product may fall short of realising the full opportunity that this Bill presents.


1.6. Help the Aged and Age Concern are concerned that age is frequently seen as the poor relation of the equality strands. It is important that age equality, a key element of the Government's Equality Bill is fully examined as part of the Committee's inquiry. It is vital that the DWP is scrutinised as they hold cross departmental responsibility for work on age discrimination and there is a tendency within the Department to place insufficient emphasis on the important role of championing age issues in its contributions to Equality debates.


1.7. Help the Aged and Age Concern are delighted that the Government recently announced that the Equality Bill would include vital measures to ban age discrimination outside the workplace. At present age discrimination remains legal outside the workplace, leaving many older people vulnerable to being treated as second class citizens by public and private sector services.


1.8. Whilst we were delighted by this announcement, we were concerned that the bulk of the legislation on age would be introduced through secondary legislation - risking the possibility that older people would face further delays in securing rights to fair and equal citizenship. These concerns seem now to be being borne out, as a recent Written Ministerial Statement issued by Phil Hope MP on 'Age discrimination in health and social care', setting out the timetable for drafting regulations to enact anti-age discrimination legislation in health defines a programme of advisory groups taking over 18 months to complete, only after which would regulations be drafted and consultation undertaken.[1] We believe that this sends out entirely the wrong message about the importance of age discrimination. It is vital that DWP uses its leading role on age to seek to ensure that the Government delivers fully on its manifesto commitment to an integrated equality bill within the lifetime of this Parliament.



2. How effective has DWP been in achieving equality in employment, how would it have to change to achieve greater equality in employment?


2.1. Age Concern and Help the Aged believe that it is clear that there is still a long way to go before age equality is realised in employment. This is despite, and in part because of, the introduction of the Employment Equality (Age) Regulations 2006 ("the Regulations").


2.2. The Regulations were introduced to transpose Directive 2000/78/EC into domestic legislation. The UK Government waited until the latest possible date allowable under EU law to bring in the legislation, and then did so in what we believe to be an unacceptably watered down format.


2.3. In particular we were disappointed that the Government, under heavy lobbying from some elements of the business community, decided to continue to allow companies to retire people at or after the age of 65. We believe that the exemption in Regulation 30 allowing enforced retirement at the age of 65 is unjustifiable discrimination, contrary to fundamental human rights and principles of equality. This provision effectively allows employers to legitimately dismiss their employees at or after the age of 65 years on the grounds of their age, provided they comply with the correct procedure. We believe it is incompatible with the Directive. It is vitally important that Regulation 30 of the Regulations is removed.



2.4. The National Council on Ageing, which operates under the names Age Concern and Heyday, with support from Help the Aged and others, has brought a legal challenge to the Age Regulations, arguing that by introducing a national default retirement age the Government has failed to transpose correctly the 2000 European Equal Treatment Directive. Several questions about the correct interpretation of this Directive have been referred to the European Court of Justice, whose judgment is pending.[2] The case will then return to the High Court.


2.5. The Government has committed to reviewing this provision in 2011 but, for many older people who wish to work past 65 years, this is too late. Age Concern and Help the Aged believe that all workers, irrespective of their age, should be allowed to continue to work for as long as they are able or wish to. Indeed, with an ever increasing ageing population and skills shortages reported across the country, this is likely to be an economic necessity. A century ago only one in 20 people were over 65 years; today one in six are over 65 years.[3] In the next 10 years, the population of over 65s will increase by 15%, and the population of over 85s by 27%.[4] In the next 20 years, the number of people aged 85 years and over in England is set to increase by two-thirds, compared with a 10% growth in the overall population.[5] By 2041, more than 20 million people will be over 60 years; that equates to 37% of the population.[6]


2.6. It is clear that older people want to work but are effectively prevented from doing so because of Regulation 30. More than a million 50-65 year olds who want to work can't get a job because of barriers to retaining or recruiting older staff. Only a third of those who retire early do so entirely voluntarily.[7]


2.7. We believe that chronological age is not a proxy for capability. We would support the use of capability procedures that assess an individual's capability on the basis of job performance, and not age.


2.8. An unintended consequence of the Age Regulations has been the forced retirement at age 65 of employees who would have been able to continue working beyond that age had the legislation not been introduced. According to a 2006 DWP survey conducted to establish the effects of the forthcoming legislation, 57% of establishments had no compulsory retirement age but many have introduced one since the Regulations came into force.[8]


2.9. Additionally, a mandatory retirement age creates a barrier to opportunities for selection, promotion, training and job mobility for people in their late 50s and early 60s. A 'fixed' point at which individuals can be asked to retire inevitably influences employer decisions about their personal development and opportunities in the years leading up to it.


2.10. Many older people want to continue to work:

A study of people in their 50s and 60s who were still working revealed that 58% said that they wanted to carry on after 65 and 10% did not want to retire at all.[9]

In another survey Berwin Leighton Paisner questioned more than 50 private and public organisations, with a combined staff of almost 80,000, to find out the impact of the current Age Regulations. More than 40% of employers had received requests from employees to work past retirement age.[10]


2.11. A survey carried out by The Age and Employment Network found:

89% of respondents were aware that there was legislation covering age discrimination in employment.

Only 63 per cent of people claimed that they understood roughly what the age discrimination legislation said and the rights that it gave them.

Just 13 per cent of people agreed that age discrimination legislation had helped older people find work.

38 per cent of respondents had experienced age discrimination in the workplace [11]

50 per cent had experienced age discrimination in seeking employment.

It is clear that far more needs to be done to stamp out age discrimination in the workplace.


2.12. Older jobseekers believe that employers' perceptions play a significant part in the difficulties that they face in getting work. For instance, 63 per cent thought that they were seen as too old by employers and 42 per cent though that they were seen as too experienced or over-qualified.[12] Additional barriers faced by older jobseekers include a history of self-employment and modern recruitment practices indirectly discriminating against them.


2.13. There is still a long way to go before equality of earnings is achieved for older people. In the UK in 2007, full-time workers aged 50-59 earned on average (median) 6.5 per cent less per hour than full-time workers aged 40-49, while those aged 60-plus earned an average of 20.1 per cent less.[13]


2.14. DWP is ideally placed to play a leading role in championing older people's employment rights, particularly by encouraging other departments across government to ensure that not only are they not discriminating against older people in recruitment and retention, but that they are encouraging older people to apply for vacancies and to develop within government departments. Taking the lead in this way will provide an example for private sector employers to follow.


2.15. Age Concern and Help the Aged were pleased to note that in 2007 the employment gap between younger and older workers had reduced by 0.8 percentage points from 2006, to a level of 2.7 per cent.[14] We are, however, concerned that more needs to be done in this area and we are particularly worried that the current difficulties in the economic climate may lead to the employment gap between younger and older workers starting to rise again. In previous recessions, older workers have been the first to be laid off and have found it harder to return to the workplace than their younger colleagues.



3. How can the Equality Bill open up opportunities in employment, particularly for disabled people, carers and pensioners?


3.1. The Equality Bill can open up opportunities for carers by enshrining the protection given to them by Coleman in domestic legislation and by leading to the development of guidance for employers from DWP or BERR.


3.2. It is clear that volunteering can act as a pathway to employment and open up opportunities in the job market. However, many older people are prevented from participating in volunteering activities.


3.3. We believe that volunteering opportunities should be treated as a "facility" in legislation outlawing age discrimination in the arena of goods, facilities and services. This would ensure that older people were not excluded from volunteering positions on grounds of their age alone.


3.4. Older people make up 74 per cent of the volunteer workforce in health and social services, the main areas in which voluntary organisations are involved,[15] with around four and a half million over the age of 50 engaged in formal volunteering through groups, clubs and associations.[16]


3.5. In 1998 one fifth of volunteering organisations admitted using upper age limits, whilst many others are thought to dismiss individual volunteers without good reason.[17] Similar research carried out in 2006 showed that 7% still had an upper age limit for their volunteers.[18]


3.6. Arbitrary age limits for the retirement and recruitment of volunteers are clearly discriminatory and should be abolished. Individuals should be assessed on the basis of their capability and performance, not their age.


3.7. The benefits of legislation to outlaw upper and lower age limits to volunteering are clear: it was estimated that the value of unpaid work contributed to the economy by older volunteers (formal and informal) in 2001 was approximately 5 billion a year.[19] This figure would only increase if arbitrary age limits were removed. Individually, older people would also greatly benefit from the increased activity, both physically and mentally, as well as developing their skills and actively participating in society.[20]


3.8. According to research carried out by Age Concern, there would be no additional liability insurance costs to organisations in retaining older volunteers.[21]



4. How should the Equality Bill respond to the decision in the Malcolm case in respect of disability rights in employment?


4.1. It is clear that many older people who have disabilities will adversely affected by the House of Lords decision in the Malcolm case, which has had a profoundly damaging impact on the effectiveness of the Disability Discrimination Act and will make it far harder for people with disabilities to succeed with claims or in using the DDA as a defence. The House of Lords held by a majority that the correct approach to the legislation was to compare treatment of a disabled person to the treatment of a non-disabled person in the same situation. Thus, the correct comparator in Malcolm should have been a non-disabled tenant who had also illegally sublet their home. The decision also overturns existing caselaw in the field of employment,; for example, if someone were to be dismissed because of long-term absence from work, the correct comparator would be whether the employer would have dismissed a non-disabled person who was also absent from work. We urge the government to use the opportunity presented by the Equality Bill to amend the DDA in order to restore the previous legal interpretation of this provision.


5. How should the Government improve protection of carers in equality legislation, following the decision in the Coleman case?


5.1. The ECJ has recently confirmed in Coleman that EU law on workplace discrimination protects those who have been discriminated against on grounds of their association with someone who is disabled. [22] It follows that discrimination on grounds of association with someone who is of a particular religion, belief, age or sexual orientation is also prohibited by EU law. This ruling gives employment rights to carers of people with disabilities, but it equally follows that those caring for elderly people will also be protected. Help the Aged and Age Concern believe it is important to enshrine this clarification of European law on the face of domestic legislation, and would urge the Government to include similar protection in the age discrimination provisions in the Equality Bill and would urge the Work and Pensions Committee to recommend that the draft Bill reflects this need.


5.2. Research shows that carers are most likely to be caring for older people.[23] The General Household Survey indicated that 70 per cent of those cared for are 65 years or over.[24] Including provisions on association with respect to age would avoid the need for a carer to demonstrate that the older person being cared for was DDA disabled.


5.3. Furthermore, the peak age for caring is between 55 and 59, when one in four people is a carer. Approximately a third of the 5.7 million UK carers are aged over 65; over 340,000 of this group provide 50 hours or more of unpaid care per week.[25] So, carers are more likely to be found in older cohorts of workers than among younger people.[26] Carers are more likely to give up work early in order to care and this is particularly true of workers just before retirement.[27] Because of the age profile, if a carer gives up work to care, they find it harder to return to work after a period of caring because of gaps in their CV. Many feel that employers will not want them because they are too old.[28]


5.4. Therefore, older carers are more likely to suffer multiple disadvantage - on grounds of their own age and because of their association with older people. We believe that such people should have legal protection against discrimination on both grounds.


5.5. According to research by Carers UK, carers can be teased, treated differently, or bullied by others because someone that they care for has a disability or chronic illness, highlighting the need for discrimination by association for disability.


5.6. Many older carers support spouses with dementia, and intensive caring places carers at significantly higher risk of experiencing poor mental health;[29] a third of people who provide unpaid care for an older person with dementia have depression,[30] which means that carers are also at an increased risk of suffering direct and associated disability discrimination.


6. How could the duties in Goods, Facilities and Services of the DDA be built on to deliver systemic change?


6.1. These duties should be transferred into the new Equality Bill so that there is a single unified duty covering all of the discrimination strands. We believe that it is particularly important that this covers age and we are pleased that the Government has indicated that this will be the case. This then presents a golden opportunity to deliver tremendous change across society. It is vital that this opportunity is not lost.


7. What is the draft EU Directive in GFS proposing and what are the implications for transposition of a new EU Directive for UK law?


8.1 Age Concern and Help the Aged have welcomed the European Commission's publication of a draft framework directive on equality outside of the workplace,[31] which would prohibit discrimination in the provision of goods, facilities and services across the four strands not currently covered by EU legislation, including age. At this stage it is not clear what support there will be for such a directive, or what form it might ultimately take but both our organisations are concerned to support this initiative. It would further the EU goal of equal treatment and would complement existing protection against age discrimination in employment and training. An EU level initiative would also help promote competition and efficiency in financial services and support reciprocal arrangements in healthcare.


8.2 We are concerned, given the likely lengthy timescale for approval of any Directive, that it would not be acceptable to delay the Equality Bill while the Directive is finalised. We do believe that this proposed European measure demonstrates that there is a pressing need for legislation prohibiting discrimination and promoting equality.


8. Is the draft EU directive welcomed?


8.1 As stated above, Age Concern and Help the Aged warmly welcome moves to extend the prohibition on age discrimination in the provision of goods, facilities and services at EU level. We believe it makes sense to develop a unified approach to equality issues across all strands and throughout member states.


9. Does the Equality Bill incorporate the provisions of the draft directive?


10.1 Until the text of a draft Bill is produced it is impossible to be certain whether it will incorporate the provisions of the draft directive. However at this stage it appears as if both the Equality Bill and the Draft Directive are moving in similar directions.


11. How can it be made easier for disabled people, carers and pensioners to bring and pursue cases in GFS?


11.1 Claims under current discrimination legislation relating to goods, facilities and services are generally brought through the County Court. At present awareness of, and access to legal redress on goods, facilities and services issues are very low, including amongst older people. Clearly until legislation on age discrimination is in place, older people would not be able to pursue cases of discrimination on the grounds of age, but may be able to achieve some improvements in their circumstances using the Disability Discrimination Act.


11.2 Access to the County Court is currently hampered by the size of court fees, the risk of adverse costs orders and the relative complexity of the Civil Procedure Rules. There has been some debate as to whether the Employment Tribunal should extend its jurisdiction to goods and services cases, a proposal which has both advantages and disadvantages. However, if the County Court retains responsibility for goods and services cases, we think it would be possible make radical improvements to the way that these cases are handled. For example, it would be possible to provide specialist training to a small number of County Court judges. It would also be possible to establish a circuit system, with 'ticketed' discrimination judges covering on a rota several County Courts in one region. The Ministry of Justice and the Court Service could also consider allowing goods and services claims to be handled under the County Court small claims track, to a maximum value of (say) 50,000. This would provide access to a faster and less formal procedure and limit the parties' exposure to costs.


11.3 Age Concern and Help the Aged also believe that the problem of County Court fees must be addressed. We are opposed to the Government's 'full cost recovery' policy for the court fee scheme, which ignores the role of the courts in delivering public justice and the deterrent effect of high fees on people with low incomes. In any event, the Court Service should recognise the social value of providing effective access to justice for victims of discrimination cases by reducing the fees for these claims. The central starting point for Government policy decisions on this question is that there should be effective access to justice for victims of discrimination. The UK has ratified the International Covenant on Civil and Political Rights, which states (Article 26) '... The law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, religion, political or other opinion, national or social origin, property, birth, or other status.' (our emphasis).


11.4 We also wish to raise serious concerns about the severe limitations in the availability of legal aid for advice and representation on discrimination law. This cannot be ignored as a key factor in the low number of goods and services cases being brought in the County Court. The Legal Services Commission is a powerful gatekeeper to the justice system, and there are widespread concerns about its current system of fixed fees and proposals for market-based reforms to civil legal. We urge the Government to review the impact of these ill-considered reforms at the earliest opportunity.


11.5 We believe older people have been less likely to use disability legislation to seek redress as a result of an artificial dividing line which is often drawn between younger disabled people and people who have age related disabilities.


11.6 The Equality and Human Rights Commission can play a key role in communicating effectively to older people about the definition of disability under the DDA and how it might be used by older people.


11.7 The DWP should also seek to draw its workstream on disabled people and older people more closely together in order to improve understanding.


12 Should discrimination by association extend to GFS?


12.1 Yes. For example, Age Concern and Help the Aged believe that the discussion on carers in response to above applies to discrimination in goods, facilities and services.


13 What are the implications of the Malcolm case and how should the Equality Bill take these into account?


13.1 Help the Aged and Age Concern believe that the Equality Bill will need to clarify exactly what is meant by the phrase "a reason that relates to" in the Disability Discrimination Act.


13.2 We are particularly concerned that the harsh results of this judgment for a blind person reliant on a guide dog can not possibly be viewed as fair. Lord Scott of Foscote believes that it is acceptable for a restaurant to refuse entry to a blind person accompanied by a guide dog, because "[t]he problem was the dog". Therefore, "[i]f he is refused entry it is not because he is blind but because he is accompanied by a dog and is not prepared to leave his dog outside".[32] With respect, this can not be right. It is not that the blind man is not prepared to leave his dog outside. It is that he is unable to do so. The suggestion that, at some level, it is the blind man's attitude that is to blame seems at odds with the intent behind the various pieces of equality legislation.


14 How could a Disability Equality Duty in the public sector be built upon within a Single Equality Duty?


14.1 Help the Aged and Age Concern recognise that in many respects disability is a special case compared to the other discrimination strands and that it cannot be treated as identical to them. However, we believe that a Single Equality Duty within the Equality Bill represents the way forward as it is the best method to ensure protection against multiple discrimination for disabled people. In this respect it is important that age is included in any Single Equality Duty.


14.2 It is, of course, essential that the Equality Bill is not taken as an opportunity to roll back the gains that have been made towards equality for disabled people, or to in any way reduce the extent of the Disability Equality Duty.


14.3 We believe that a clear statement of the purpose of a single public sector duty would give direction to public sector duty provisions, and would greatly assist with clarification, application and interpretation of the duty. We would also support the use of a purpose clause within the Equality Bill itself. A purpose clause would greatly aid public understanding of the legislation and have an educative role by providing an important statement of basic principles.


14.4 We believe that a purpose clause is necessary because discrimination law is complex and contains many specific provisions and exceptions, as well as giving rise to many issues of principle, leading to the necessity of clarity and guidance on underpinning principles.


14.5 A purpose clause would serve as useful guidance for courts, tribunals and anyone else dealing with the legislation as to how it should be applied and interpreted, helping to ensure consistent judicial interpretation and decisions, which in turn would lead to greater legal certainty.


14.6 The purpose clause would help to supply context for interpretation and application of the specific provisions of the Act, setting out the essential purpose, guiding principles and overall objectives, without overriding more specific legislative provisions.


14.7 A purpose clause should set out the objectives of: preventing discrimination, ensuring equality of opportunity, recognising different treatment to achieve equality in practice, tackling disadvantage, social exclusion and systematic discrimination. It should state the underlying purpose of such legislation in protecting human dignity, recognise the intention of the legislation to provide effective remedies and draw attention to the role discrimination law plays in helping to maintain good relations between different groups.


15 Is a Single Duty desirable?


15.1 Yes. Such a duty is not just desirable, but it is also necessary to ensure parity of protection and access to justice. Discrimination laws are not enough. An integrated duty will also deliver efficiency gains for public bodies. In view of the fact that positive duties can have a "profound bearing on the life chances of disadvantaged groups"[33] we think that the benefits far outweigh the anticipated costs (as set out in the DCLG Impact Assessment) and act as a way of properly responding to an increasingly diverse society.


15.2 Help the Aged and Age Concern believe that it is just and equitable to extend public sector equality duties to all equality strands. Current inconsistencies between the equalities laws for different equality strands heighten the risk that, due to this fragmentation, individuals will be unable to understand, and so secure, their rights in full.


15.3 We believe that proactive consideration of age issues through a public sector equality duty for age would encourage recognition and eradication of ageism and age discrimination, without the need for litigation, and promotion of age equality and human rights.


15.4 We know from experience of other equalities legislation that individual legal rights to challenge potentially discriminatory practices are not sufficient to bring about equality in practice. Whilst discrimination laws help to secure equal treatment, equality of opportunity is a much wider concept which goes beyond treating everyone equally and includes taking proactive steps to combat entrenched disadvantages and recognising every individual's diversity.


15.5 Indeed, the public sector equality duty was introduced because it was recognised that anti-discrimination legislation was not sufficiently effective to shift entrenched and institutional inequalities for race, gender and disability. However, without an extension of the duty to cover the other equality strands, older people would be left without any legal protection against discrimination outside of the workplace since anti-discrimination legislation relating to goods, facilities and services does not currently exist for age.


15.6 We would also welcome inclusion of the additional general duties for disability in an integrated single duty (i.e. the duty to have due regard to the need to eliminate harassment that is related to a protected characteristic, promote positive attitudes towards each protected group and encourage participation by each protected group in public life).


15.7 We believe that the existing equality duties should be harmonised to include and reflect the best aspects of the current race, disability and gender duties, and extended to cover all equality strands. We support the use of a model akin to the disability equality duty, which was "... designed to reflect experience with the race equality duty by having greater focus on the equality outcomes to be achieved and being less prescriptive about the processes to be followed".[34] However, we feel that appropriate safeguards must be put into place to ensure that the issues specific to each of the equality strands are not marginalised.


15.8 An integrated duty (covering age) would also have the potential to tackle multiple discrimination, for example, particular disadvantage faced by older, disabled people such as lack of flexible transport concessions; or lesbian and gay older people, such as lack of provision for same sex couples in care. We believe that an integrated positive duty would be the most effective way of supporting and achieving equality for older people, whilst minimising the costs and administrative burdens placed on public bodies.


15.9 Due to changing demographics and life course patterns people are in education for longer, marrying and starting families later, getting mortgages later, have less in savings and lower pensions. Therefore, working lives need to extend in order to generate increased income, through labour and taxes, to support people in older age. A public sector equality duty for age could encourage longer working life amongst employees of public authorities and those who work for privately owned companies that provide public services, which in turn would help to support the economy and provide increased autonomy to older people. As noted in the Discrimination Law Review green paper: "... many public authorities are major employers - the NHS, for example, is the world's third largest employer - so their employment policies can have a significant effect on participation in and experience of the labour market".[35] To give this effect we suggest that the duty could include a 'forward looking' requirement to plan for a changing population, for example with respect to demographic ageing.



16 Has the Disability Equality Duty been effective in promoting equality in the public sector, including local government?


16.1 Help the Aged and Age Concern believe that specialist interest groups with more expertise in disability equality will be better placed to focus on the Disability Equality Duty. We believe that there is a clear need for an Equality Duty that includes age.


16.2 Where public sector equality duties covering age exist, research suggests that this has led to increased dialogue with older people, a focus on those issues which affect them most directly and growing evidence of improved outcomes.[36] For example, in Northern Ireland the positive equality duty for age has:


Provided "groundbreaking protection against age discrimination";

Raised the profile of age issues;

Brought together older people's organisations and facilitated working across strands;

Positively influenced the culture of public authorities and encouraged them to take a joined-up approach to equality; and

Raised the issue of multiple identities.[37]


16.3 Help the Aged and Age Concern believe that consideration should be given to replicating the duties to promote positive attitudes towards disabled people and to encourage participation by disabled people in public life for older people.[38] There is ample evidence that ageist attitudes pervade many sections of society. For instance one in three respondents to a survey viewed the over 70s as incompetent and incapable.[39] 45 per cent of over-65s believe that once you reach very old age people tend to treat you like a child.[40] It is important that more work is done to change these attitudes.


17 What is the evidence in the DWP Secretary of State's report on the success of the Duty in his department?


17.1 As the Secretary of State is only required to report on progress made in relation to disability equality[41] Help the Aged and Age Concern defer to those special interest groups with more expertise in this field. However, we believe that one consequence of the Equality Bill should be that the Secretary of State should be required to report on progress in relation to age equality.


18 . How does the Department fare in promoting equality and tackling discrimination?


18.1 We believe that the DWP has yet to really make its mark within Government as proactive champion for age equality issues, such that its role as Government lead on age equality is little recognised particularly in comparison to its prominence on disability issues.


19 . How could procurement be made a more effective lever for equality outcomes?


19.1 We believe that there is a great need for clarity on the face of the legislation that the public sector equality duties apply to the procurement functions of public authorities. Indeed, the confusion that currently surrounds the definition of "public functions" within the Human Rights Act 1998 demonstrates the need for clarity within the legislation on this issue. In this context, we welcome the initiative of the Office of Government Commerce in clarifying the legal position in relation to procurement.


19.2 Whilst we would welcome: "clearer, consistent and practical guidance on the legal and policy framework and the ways in which equality can be factored into the various stages of the procurement process, together with case studies and examples of good practice",[42] we do not think that this alone will be enough.


19.3 We endorse the view of the Equalities Review: "the Government has so far failed to do enough to ensure that an equalities dimension is part of the public sector's procurement or commissioning decisions. The public sector spends billions of pounds a year on procurement ... The Panel believes that public agencies should require suppliers to adopt the same principles under which they themselves are required to operate."[43] Further, that there is "scope for doing more" but "little clarity" exists amongst procurement and commissioning professionals about what can or should be done.


19.4 Given the acknowledged importance of procurement as a lever for promoting equality in the private and voluntary sectors, and the fact that the public sector procures 125 billion worth of goods and services annually,[44] we feel that there is a clear need for stronger, clearer and more enforceable legislation.


19.5 However, we believe that obligations regarding procurement should be stated within the general duty (as an additional part of the duty), and that there should not be a specific duty on procurement. Regulations to assist public bodies to comply with this element of the duty are also necessary to ensure that all public bodies embed equality into the procurement process.



20 How can guidance on procurement improve at EU and national level to make procurement a more effective lever for equality outcomes?


20.1 There is already a considerable amount of guidance on this issue and, as stated above, we welcome the recent attempts by the Office of Government Commerce to clarify the law. However, uncertainty on entitlement and obligation remains; experience has shown us that guidance has limited effect if the law is unclear, and we must now look to the legislation (as well as statutory guidance) to ensure that public bodies are clear about their entitlements and obligations in this regard, which will in turn promote consistent practice.


21 . Is an Equality Duty on the Private Sector workable?


21.1 Age Concern and Help the Aged would welcome the introduction of a voluntary 'equality standard' for the private sector, covering all six strands. We recognise that placing a statutory Equality Duty on the Private Sector may encounter some difficulties, but we believe that it should be maintained as an option if a voluntary standard, backed by effective procurement policies, prove ineffective.


21.2 We believe that many private organisations are already implementing policies which mirror the current public sector equality duties, and so making such duties a legal requirement for the private sector would ensure a more level playing field; such that those who chose not to implement best practice are not placed at a competitive advantage from doing so.[45] Indeed, the CBI has reported that some public authorities adopt a "lowest cost mentality" when awarding contracts, regardless of equalities criteria.[46] And that: "Public bodies have considerable spending clout, and employers believe that procurement could be a highly effective tool for encouraging equality, as long as contracts focus on results and not box ticking". We agree.


21.3 Furthermore, without the extension of positive duties to the private sector there will be a two tier system, where public sector employees are more likely to have equal opportunities and less likely to be discriminated against in practice because of the mechanisms accompanying positive duties.[47]


21.4 The need for parity of opportunity in the private sector as well as the public sector is underlined by the fact that it provides approximately 80% of all employment opportunities in the UK.[48]


21.5 We believe that extending positive duties to the private sector, whether through voluntary measures or a statutory scheme, would be an important step towards making workforces more representative of the entire population and help to address under-representation of sectors of the population in senior jobs, professions and sectors, as well as tackling inequality in pay and employment.



22 What can be done in the realm of light-touch regulations, guidance and advice to promote a culture change in the private sector for all those subject to discrimination?


22.1 There are already a number of schemes in place to support employers to work more effectively on age including the DWP's own "Age Positive" scheme, the Employers Forum on Age and others. Additionally Help the Aged works with a network of private sector organisations in its "Engage" network. We believe Kitemarking and other schemes have a role to play in encouraging good practice, but work best alongside legislation to establish the baseline, rather than as a substitute for legislation.


23 What is the role of the Equality and Human Rights Commission within the single Equality Act?


23.1 We believe the Equality and Human Rights Commission has a vital role to play in the short term in making the case for a robust Equality Bill which levels up equality protection across all strands.


23.2 In the longer term the Commission will need to ensure that the new protections and requirements of the Bill are effectively communicated both to individuals and organisations. This must include publication and dissemination of robust statutory guidance and tailored communications targeting all the audiences who need to be aware of rights and responsibilities under the law.



November 2008

[1] Hansard HC vol 482 cols 46-48WS (11 November 2008)

[2] R (Incorporated Trustees of the National Council on Aging) (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform [2007] EWHC 3090 (Admin); Also see Case C-388/07

[3] Healthcare Commission, the Commission for Social Care Inspection and the Audit Commission, "Living well in later life: a review of progress against the National Service Framework for Older People" (March 2006).

[4] Taken from the Mental Health Foundation website, 22 July 2005

[5] D Wanless, "Securing good care for older people", Kings Fund, London (2006), figures from Government Actuary (2004)

[6] Age Concern, "How Ageist is Britain?" (2005) and "Ageism: A benchmark of public attitudes in Britain" (2006)

[7] TUC, "Ready, Willing and Able" (2006)

[8] Survey of employers' policies, practices and preferences relating to age, DWP, 2006

[9] Age Concern, "Have Your Say", survey in Heyday (2006), reported in the Equalities Review (2007)

[10] Survey reported in the Financial Times, 28 June 2007

[11] The Age and Employment Network, 'Survey of Jobseekers Aged 50+' (2008)

[12] TAEN, 'Survey of Jobseekers'

[13] Office for National Statistics, Annual Survey of Hours and Earnings 2007 Results (Table 6.6a) (2007)

[14] Opportunity for All Indicators Update (Indicator 19: Indicators for People of Working Age), Department for Work and Pensions (2007)

[15] C Rochester and B Thomas (2006), in M Lee on behalf of the Inquiry Board, "Improving services and support for older people with mental health problems", the second report form the UK inquiry into mental health and well-being in later life, published by Age Concern England (August 2007).

[16] Age Concern, "Age of equality? Outlawing age discrimination beyond the workplace" (2007).

[17] National Centre for Volunteering, "Issues in Volunteering Management: a report of a survey" (1998)

[18] Rochester and Thomas, "The indispensable backbone of voluntary action" Volunteering in the Third Age (2006).

[19] Age Concern, "The Economy and Older People" (2004)

[20] See for example M Lee on behalf of the Inquiry Board, "Improving services and support for older people with mental health problems", the second report form the UK inquiry into mental health and well-being in later life, published by Age Concern England (August 2007)

[21] See Age Concern, "Age of equality? Outlawing age discrimination beyond the workplace" (2007)

[22] Case C-303/06 Coleman v Attridge Law [2008] 3 CMLR 27

[23] Census 2001, Office for National Statistics

[24] Maher J and Green H, "Carers 2000", Office for National Statistics, Stationary Office, London (2002)

[25] Age Concern, "The Age Agenda 2005: public policy and older people", England: Age Concern Reports (2005)

[26] Census 2001, Office for National Statistics

[27] Carers UK 2006, "Who Cares Wins: the social and business benefits of supporting working carers", statistical analysis: evidence from the Census. See also, "Real Change not Short Change", Carers UK, 2007

[28] Carers UK 2007

[29] Office of National Statistics - Population Trends (2005) (ONS: London)

[30] M Lee on behalf of the Inquiry Board, "Improving services and support for older people with mental health problems", the second report form the UK inquiry into mental health and well-being in later life, published by Age Concern England (August 2007)

[31] Commission (EC), 'Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation' COM (2008) 426 final, 7 July 2008

[32] London Borough of Lewisham v Malcolm [2008] UKHL 43 [35]

[33] DLR Green Paper [5.1]

[34] 'Discrimination Law Review - A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain'

(2007) [5.16]

[35] DLR Green Paper [5.25]

[36] C O'Cinnedie, 'Taking Equal Opportunities Seriously: the extension of positive duties to promote equality', for the Equality and Diversity Forum (2004)

[37] Age Concern, 'Tackling Age Discrimination Beyond the Workplace: Age Concern Seminar Series' (July 2006); See also, Age Concern, 'Age of equality? Outlawing age discrimination beyond the workplace' (May 2007)

[38] Disability Discrimination Act 1995, ss. 49A(1)(e)-(f)

[39] Age Concern, "How Ageist is Britain?" (2005)

[40] Spotlight Survey 2008, ICM Research for Help the Aged (2008)

[41] By virtue of Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 (SI 2005/2966), Reg 5

[42] DLR Green Paper [5.99]

[43] The Equalities Review "Fairness and Freedom: The Final Report of the Equalities Review" (2007)

[44] DLR Green Paper [5.96]

[45] C O'Cinneide, "Taking Equal Opportunities Seriously" (2005)

[46] HC Communities and Local Government Committee "Equality", Sixth Report of Session 2006-07

[47] M Rubenstein, "Equality, the private sector and the Discrimination Law Review: A preliminary report" (2007)

[48] Office of National Statistics, "Public sector employment", taken from HC Communities and Local Government Committee "Equality", Sixth Report of Session 2006-07