Memorandum submitted by Age Concern England
EQUALITY BILL
Thank you for inviting us to submit evidence
to assist your scrutiny of the government's draft legislative
programme. Of the three Bills that you have identified, we have
a particular interest in the Equality Bill and would like to draw
your attention to some of the key issues affecting older people.
As you are already aware, Age Concern was very
pleased that the JCHR's report on the human rights of older people
in healthcare recommended that age discrimination legislation
should be extended to cover goods, facilities and services; and
that providers of health and residential care should be placed
under a positive duty to promote equality for older people. We
have no doubt that your support on this issue lent weight to the
case for introducing legislation.
Age Concern warmly welcomed the Government's
announcement that the Equality Bill would include powers to introduce
regulations outlawing unjustifiable age discrimination in goods,
facilities and services ("age GFS legislation") and
its decision to introduce a streamlined public sector equality
duty incorporating age. However, we have a number of concerns
about the design of these legislative changes and the timetabling
of their implementation. We would like to draw these concerns
to your attention in relation to the JCHR's scrutiny of forthcoming
Bills.
DELAYS IN
IMPLEMENTING AGE
GFS LEGISLATION
1. It is worrying that the Government has
not yet made public its approach to framing the age GFS regulations.
A further consultation on the draft regulations has been promised
at some point in the new year, but no timetable has been indicated.
There are now strong indications that implementation of secondary
legislation may be delayed. The Written Ministerial Statement
issued on 11 November by Phil Hope MP on "Age discrimination
in health and social care" sets out the Department's programme
of work in this field. It states that the DH will shortly be setting
up an Advisory Group which is not expected to complete its work
until the summer of 2010. This statement therefore suggests that
the Government would be content to wait until mid-2010 before
establishing a clear timeline for the implementation of age GFS
legislation.
2. Whilst we recognise concerns about the
possible costs of implementing age GFS legislation in health and
social care, we do not accept that this should delay the laying
of regulations before Parliament. If necessary, there could be
phased implementation of the legislation, with providers working
towards the new framework within a transitional period. Age Concern
is calling for the DH Advisory Group to advise on the shape of
the legislation at the earliest possible opportunity, thus allowing
draft regulations to be available for discussion before the end
of the Parliamentary phase of the Equality Bill. We hope this
would ensure that regulations can be laid before the next General
Election, even if commencement is phased over some time. As you
will know, it is now established Parliamentary practice for draft
regulations to be available to Parliament when it is scrutinising
bills with considerable delegated powers. This approach would
also permit relevant select Committees—including the Joint
Committee for Human Rights in this instance—to scrutinise
the draft regulations.
3. We also have concerns about the timing
for implementation of age GFS legislation. The Government has
an ambitious change agenda for health and social care and it is
essential that implementation of the regulations is included as
part of these programmes. This includes the major programme to
put quality of the heart of NHS reform as recommended in the NHS
Next Stage Review and the transformation of social care through
the Putting People First ministerial concordat. It will be equally
important to secure a commitment to full funding of the costs
of eradicating age discrimination from health and social care
services in the next Spending Review, sufficient to allow this
legislation to come into force during the life of the next spending
round (2011/12 to 2013/14).
AGE DISCRIMINATION
IN FINANCIAL
SERVICES
4. We also fear that the regulations will
be less effective and/or less comprehensive than we had hoped.
We have particular concerns about the scope of exemptions permitting
age-based differences in treatment by the financial services industry.
It is clear that legislation will be strongly contested by financial
services providers: HM Treasury's Expert Working Group on age
discrimination in financial services, which reported in September
2008, was unable to reach a consensus on several key questions:
(i) whether wide age bands should be permitted
to determine pricing;
(ii) whether minimum and maximum age limits should
be allowed to continue in relation to certain products—for
example, motor and travel insurance; and
(iii) How to cast an exception allowing risk-based
pricing according to age, and what evidence should be acceptable
to support differences in treatment.
5. It is our the view, and that of Help
the Aged, that legislation should only permit age-related differences
of treatment in the financial services sector where this is justified
by relevant and accurate information, based on hard data or a
professional opinion from a bona fide source; and the treatment
is a proportionate response—that is, the same aim
could not be achieved by less discriminatory means, and the justification
for the treatment is important enough to over-ride the impact
of the discriminatory treatment. We would be strongly opposed
to any exemption to the legislation that allowed providers to
refuse a quotation to an older person, simply on the grounds of
their age.
AGE-BASED
CONCESSIONS AND
EXCLUSIONS
6. We also recognise that there are likely
to be some debates about the extent to which any age-based concessions
and exclusions that favour one particular age group would be permitted
under the new legislation. Age Concern has maintained that any
age-based concessions or exclusions that can be objectively justified
by evidence (for example, on social policy grounds) should be
permitted to continue. For example, free travel on the buses for
older people can be objectively justified, as this concession
encourages older people to maintain social contact and pursue
an active and healthy lifestyle. This approach broadly corresponds
with the criteria for "positive action" permitted under
comparable EU legislation—that is, measures that address
or prevent disadvantage.
7. We believe that it is possible to avoid
many exclusionary rules based on age (for example, holidays targeted
at particular age groups) where similar results could be achieved
by marketing. We would prefer there to be no exemption within
the legislation permitting concessions that are merely designed
to draw in customers during periods when business is slack—for
example, cheap hair cuts or fish and chips for pensioners on Tuesdays.
There is some evidence that older people may find such concessions
patronising, and there could be a perception of unfairness by
other groups on low incomes.
PUBLIC SECTOR
DUTY TO
PROMOTE AGE
EQUALITY
8. With regard to the proposed public sector
equality duty integrated across all grounds of protection, we
have fewer concerns. We are pleased that GEO has confirmed that
the new duty will have a similar structure to the existing public
sector equality duty—that is, general duties in the primary
legislation with specific duties set out in secondary legislation.
However, we would like to emphasise that the shape and scope of
legislation to outlaw age discrimination in goods and services
will also have an impact on the age element of the public sector
duty. This is because part of the duty will be "to eliminate
unlawful discrimination". If age GFS legislation is subjected
to various limitations and exemptions, then the age equality duty
would be correspondingly weaker. This would lead to differences
between the requirements for different strands within a duty that
is supposedly integrated.
THE EQUALITY
BILL AND
HUMAN RIGHTS
9. The Government has decided that the Equality
Bill will not have a purpose clause, on the basis that this would
not be the right means of achieving legal clarity and that it
might lead to an increase in litigation. It is suggested that
a preferable approach would be a Ministerial statement to Parliament
on the objectives of the Bill, probably at its second reading.
10. We do not agree with this view. Within
our jurisdiction, there are precedents for having purpose clauses—including
in the field of equalities. Section 9 Equality Act sets out
the purpose of the EHRC by way of a statutory mission statement
expressed in quite visionary terms, using language that is closely
related to the Universal Declaration of Human Rights. In the area
of family law, the Children Act 1989 sets out a number of
over-arching principles, including (under Section 1(1)) that when
the court determines any question the child's welfare shall be
the court's paramount consideration. These principles have been
profoundly influential in the interpretation of the rest of the
statute. Purpose or object clauses have also proved valuable in
Canada, South Africa and also in Australia, for example the Age
Discrimination Act 2004.
11. The Equality Act presents an important
opportunity to acknowledge the role of human rights in protecting
equality. In our view, the Act should be prefaced by a purpose
clause that recognises the role of human rights in protecting
equality and the close relationship between equality duties and
public bodies' positive obligations to promote and protect human
rights. This would support the integrated remit of the EHRC as
well as the emerging trend within public authorities of integrating
human rights into single equality schemes.
We hope this evidence is of some assistance
to your work. Please do contact us if you require further information.
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