Memorandum submitted by Help the Aged
1. Help the Aged is pleased to have this
opportunity to submit evidence to the Joint Committee on Human
Rights on:
— The significant human rights issues likely
to be raised by the Equality Bill.
— Whether the Equality Bill presents opportunities
to enhance protection of human rights.
EXECUTIVE SUMMARY
2. The Equality Bill will enable the principles
of non-discrimination to be enshrined in domestic legislation.
3. The Equality Bill presents an opportunity
to significantly improve the provision of healthcare services,
especially mental healthcare, and social care services to older
people.
4. We believe that the Equality Bill could
tackle social exclusion and isolation for older people. Prohibiting
age discrimination in goods, facilities and services can significantly
improve older people's enjoyment of their human rights.
5. It is concerning that in the areas in
which age discrimination legislation has already been passed discrimination
is still allowed to continue, for example through mandatory retirement
ages.
INTRODUCTION
6. Help the Aged welcomes the proposal to
introduce an Equality Bill and believes that this represents an
opportunity to make significant developments in the protection
and promotion of older people's human rights. We are, however,
concerned that during the process of getting from the Draft Legislative
Programme to a draft Bill some of this ambition may be lost and
we fear that the end product may fall short of realising the full
opportunity that this Bill presents.
7. Help the Aged has previously argued that
deep seated age discrimination deprives older people of rights
that the rest of society is able to take for granted.[164]
Legislation to prohibit discrimination is the first step to challenging
deep-seated and ingrained attitudes that should have no place
in contemporary society. It is clear that similar legislation
on discrimination has made a considerable difference to public
attitudes and perceptions with regards to race and gender. In
this way legislation can send a clear message:
"The law can be employed as an unequivocal
declaration of public policy. It gives support to those who do
not wish to discriminate, but feel compelled to do so by social
pressure… At its most effective, it has the ability to reduce
prejudice by discouraging behaviour in which prejudice finds expression."[165]
8. Placing a positive duty on public bodies
may help to ensure the effective protection of existing human
rights that are currently inadequately protected. In other words
there is scope for the Equality Bill to strengthen conformity
with, and enforcement of, the Human Rights Act 1998.
9. We believe that the Equality Bill represents
an opportunity to enhance protection of rights far wider than
simply those contained in the ECHR. For instance, Help the Aged
views equality and non-discrimination as basic human rights, but
while it is clear from Article 14 that equality and non-discrimination
are fundamental human rights principles, Article 14 only
applies the prohibition on discrimination with the enjoyment of
the rights contained in Articles 2 to 13. The Twelfth Protocol
to the ECHR extends the prohibition on discrimination to the "enjoyment
of any right set forth by law". It is unfortunate that the
United Kingdom has not signed the Twelfth Protocol, but Help the
Aged believes that the Equality Bill effectively presents an opportunity
to secure the prohibition on discrimination contained in the Twelfth
Protocol into domestic law. This will also reflect the importance
of prohibiting discrimination in other Human Rights instruments.[166]
HEALTHCARE
10. The JCHR has previously recommended
that age discrimination should be prohibited in the provision
of healthcare.[167]
We wholeheartedly agree. There is clear evidence that not enough
is being done to protect older people's Article 2 rights.
There are many examples of the importance of removing age discrimination
and ageist attitudes. To take just one, we are aware of a woman
who complained to her GP for years about back pain. He dismissed
her complaint as "old age" and never examined her. It
was only when she moved house and was sent for a scan by a new
GP that it was discovered that she had a tumour the size of a
football in her back, which could have killed her. To put it bluntly,
age discrimination can be a matter of life or death.
11. However, Help the Aged also believes
that the Equality Bill will enable the protection of older people
where healthcare is involved but the situation is not so serious
that their Article 2 rights are engaged. In these situations
Help the Aged believes that the Equality Bill will enable the
rights contained in Article 12 of the ICESCR to be strengthened
for older people:
"… the right of everyone to the
enjoyment of the highest attainable standard of physical and mental
health."[168]
All the evidence suggests that older people
are not offered the highest attainable standard of physical health.
Help the Aged believes that this partly stems from attitudes towards
older people. For example, 29 per cent of over-65s agree
that health professionals tend to treat older people as a nuisance.[169]
12. Important healthcare maintenance services
which are particularly used by older people, for example podiatry
and foot care services,[170]
are given low priority by Primary Care Trusts, resulting in older
people losing mobility and becoming socially isolated.[171]
A public sector equality duty for age could help to ensure that
resources were more equally shared between services predominantly
used by older people, and those used by other age groups.
MENTAL HEALTHCARE
13. In addition to physical healthcare the
Equality Bill could have a tremendous impact on mental healthcare.
The ICESCR specifically mentions mental health.[172]
The right to good mental health and effective mental healthcare
services can also be seen to engage ECHR Article 8, as stated
by the European Court of Human Rights:
"Mental health must also be regarded
as a crucial part of private life associated with the aspect of
moral integrity. Article 8 protects a right to identity and
personal development, and the right to establish and develop relationships
with other human beings and the outside world. The preservation
of mental stability is in that context an indispensable precondition
to effective enjoyment of the right to respect for private life."[173]
Furthermore the House of Lords has stated clearly
that "the preservation of mental stability can be regarded
as a right protected by article 8".[174]
14. As depression is a major risk factor
for suicide it is clear that ECHR Article 2 can be engaged.[175]
15. Mental health provisions for older people
are vital. For instance, there are around 2.4 million older
people with depression severe enough to impair their quality of
life.[176]
Around 400 people aged 75 or over committed suicide
in 2006.[177]
16. Many mental health services are subject
to a cut off at the age of 65. We believe that this blatant discrimination
is clearly contrary to the principles of non-discrimination and
would run counter to the proposed legislation on age discrimination.
17. We believe that promoting age equality
will help to promote good mental health and well-being for older
people. The Equality Bill can play a key role in delivering a
"society where the needs of older people with mental health
problems and the needs of their carers are understood, taken seriously,
given their fair share of attention and resources, and met in
a way that enables them to lead meaningful and productive lives".[178]
The UK Inquiry into Mental Health and Well-Being in Later Life
concluded that age discrimination was the fundamental problem
and that the scale of depression in people aged over 65 demanded
a public health approach.[179]
HOUSING
18. Help the Aged believes that not enough
is done to meet the housing needs of older people and to ensure
respect for the homes of older people. This is particularly important
with regards to homelessness.
19. Homelessness among older people is generally
given a lower priority than that affecting other age groups. Many
older homeless people have specific needs that require a tailored
approach when developing strategies. A survey found that 60 per
cent of homeless people aged over 50 had three or more presenting
problems in addition to homelessness.[180]
As local housing authorities will be under the proposed public
sector equality duty we believe that this could lead to a, long
overdue, equivalent to the National Youth Homelessness Scheme.
20. Earlier this year Help the Aged released
its manifesto for lifetime neighbourhoods, "Towards Common
Ground". We believe that the positive duty that the Equality
Bill will place on public bodies will go some way to realising
some of the goals in this manifesto and ensuring homes and neighbourhoods
fit for older people.
SOCIAL EXCLUSION
AND ISOLATION
21. Recent research by the Social Exclusion
Unit found that 29 per cent of older people aged 80 or
over were judged to be excluded from important basic services,
compared with only 5 per cent of those aged 55 to 59.[181]
The final report of the Equalities Review found that people aged
over 80 are particularly at risk of suffering multiple exclusion.[182]
Social isolation and loneliness are risk factors for poor mental
health and suicide.[183]
22. Help the Aged believes that the jurisprudence
of the ECtHR places issues of social exclusion and isolation squarely
in the human rights arena:
"… the concept of 'private life'
is a broad term not susceptible to exhaustive definition. It covers
the physical and psychological integrity of a person… Article
8 also protects a right to personal development, and the
right to establish and develop relationships with other human
beings and the outside world."[184]
23. Help the Aged hopes that the Equality
Bill will tackle social exclusion by promoting consideration for
the needs of older people. For instance the shortage of benches,
seats and public toilets in public areas particularly disadvantage
older groups and can lead to social isolation.
24. According to a Help the Aged study:[185]
— 68 per cent of people agree that
there is a shortage of benches and seating in public areas.
— 74 per cent agree that there is
a shortage of public toilets.
25. 52 per cent of older people say
that they do not go out as often as they would like due to the
lack of public toilets in their area.[186]
26. Education policies which focus largely
or exclusively on vocational and work-related aspects of education
deny the importance of education to many people in later life,
for whom it may be a source of continuing interest and reward.
Such limitations also potentially restrict career development
and social mobility. A public sector equality duty for age would
require reassessment of the curriculum, teaching, marketing and
financial support to ensure that older people were offered the
same opportunities as younger people.
FINANCIAL SERVICES
27. Financial services such as access to
banking facilities and travel and motor insurance are essential
to avoid social exclusion. Help the Aged submits that these can
be viewed in a human rights context in the light of the discussion
above regarding social exclusion. In addition the House of Lords
has said that "private life" in Art 8 must be understood
"as extending to those features which are integral to
a person's identity or ability to function socially as a person".[187]
28. Services such as travel insurance are
essential for ensuring that the fundamental European principle
of freedom of movement is open all. Older people are excluded
from this by current discriminatory practices.
29. The Government has stated that the Equality
Bill will tackle age discrimination in the provision of financial
services. Help the Aged welcomes this development, but wishes
the JCHR to be aware that these are important issues for tackling
social exclusion and isolation. It is therefore important that
legislation does not water down this commitment or delay its delivery
unduly.
EMPLOYMENT
30. We note that the Government does not
appear to intend to use the Equality Bill to address the issue
of age discrimination within the workplace. This is unfortunate
as Help the Aged does not believe that the current legislative
regime goes far enough in order to guarantee equality in the workplace.
31. We believe that the right to work is
a fundamental right. We note that ICESCR Article 6 recognises
the right to work and that the concept of functioning socially
as a person can also be construed as including such a right.
32. The Employment Equality (Age) Regulations
2006 were introduced to transpose Directive 2000/78/EC. Help
the Aged believes that the exemption in Regulation 30 allowing
enforced retirement at the age of 65 is unjustifiable discrimination
and contrary to the fundamental human rights discussed above.
33. Help the Aged believes that the Equality
Bill is an opportunity to address this legislative failing and
ensure that age is not used as an indicator of an employee's ability.
We are also concerned that more needs to be done to stamp out
age discrimination in the workplace. A recent survey of jobseekers
aged over 50 found that 38 per cent had experienced
age discrimination in the workplace and 50 per cent had experienced
age discrimination in seeking employment.[188]
We believe that Regulation 30 sends out a powerful message
to employers which is totally at odds with the aim of the Directive.
34. 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".[189]
PUBLIC SECTOR
EQUALITY DUTY
35. The utility of the proposed single equality
duty in protecting and promoting human rights will depend to a
large extent on the form that it takes. The duty will need to
be a strong one, but allow individual public bodies to take appropriate
action.
36. As major users of public services, a
public sector equality duty for age would be extremely beneficial
to older people. It would provide a flexible, sustainable framework
for assessing the reasoning behind age related practices and for
reviewing seemingly neutral policies for their impact on different
age groups, effectively helping to root out directly and indirectly
discriminatory practices without the need for costly and complex
litigation.
37. For a positive duty on public bodies
to be effective it is important that there is clarity around both
the content of the duty and those bodies that it will apply to.
It is vital that the confusion that has surrounded s. 6 of
the HRA does not hamper the effectiveness of the Equality Bill.[190]
Help the Aged believes that it is important that the duty operates
on a wider basis than the HRA currently appears to.
38. Help the Aged echoes the Joint Committee
on Human Rights in calling for the Government to settle the uncertainty
surrounding the meaning of public authority within the HRA.[191]
We believe that the Equality Bill represents an ideal time to
undertake this important work and clarify which bodies will be
tasked with promoting equality and protecting human rights.
39. 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.[192]
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.
— Raised the issue of multiple identities.[193]
40. Help the Aged has identified that the
human rights of older people are often breached.[194]
Rights such as the right to be free from inhuman and degrading
treatment, the right to life, the right to a family and personal
life and the right to peaceful enjoyment of possessions may be
contravened for older people, particularly in health and social
care settings.[195]
41. A public sector equality duty for age
would help to ensure that older people's human rights were better
protected and observed because of the obligation on public authorities
to consider explicit and implicit unlawful age discrimination
in policies and practices and take a proactive approach to reviewing
and monitoring discrimination via the complaints and satisfaction
procedures.
42. The JCHR has stated that "…
the existing legislation does not sufficiently protect and promote
the rights of older people in healthcare. We recommend that there
should be a positive duty on providers of health and residential
care to promote equality for older people".[196]
We agree. It is therefore essential that these providers are covered
by the proposed duty.
43. A further example of the value of a
positive duty in protecting human rights can be taken from the
Crown Prosecution Service. The CPS has published a policy on prosecuting
crimes where older people are the victims or witnesses. This will
arguably strengthen the protection of rights contained in Article
2 and the Article 1 of the First Protocol to the ECHR.
The CPS has taken this action in advance of a positive duty regarding
age, but Help the Aged believes that this is a clear example of
the type of action that could follow on from the introduction
of such a duty.
EXEMPTIONS
44. Help the Aged welcomes the Government's
commitment to ensuring that the legislation does not prevent the
differential provision of products or services for people of different
ages where this is justified. Probably the most frequently cited
example of this is free bus passes for the over 60s, but there
are several other situations. There is a need here to be very
cautious with the drafting of the legislation to avoid unintended
consequences. This is arguably the case with the issue of access
to education under the Employment Equality (Age) Regulations 2006.
We are aware that training providers, especially Further Education
institutions and Community Colleges, have withdrawn courses and
cut subsidies that were offered to older learners. Help the Aged
believes that concessions for educational courses can be justifiable
in certain circumstances and feels that the Government should
issue guidance on this area. Legitimate aims could include the
promotion of social inclusion, the promotion of health and active
ageing and the skilling up of older workers. In order for rights
to be properly protected and promoted it is important that exemptions
in all aspects of equality legislation are catered for where they
are justifiable. We ask the JCHR to see that sufficient priority
is given to this issue.
DRAFT DIRECTIVE
45. At the same time as the UK is working
towards introducing an Equality Bill the EU is considering a draft
framework directive on equality outside of the workplace.[197]
At this stage it is not clear what support there will be for such
a directive, or what form it might ultimately take, so Help the
Aged does not believe that it is acceptable to delay the Equality
Bill while the directive is finalised. We do believe that this
proposed European measure demonstrates that legislation prohibiting
discrimination is placed firmly in the field of human rights and
that there is a pressing need for such legislation.
DISCRIMINATION BY
ASSOCIATION
46. The ECJ has recently confirmed that
EU law on workplace discrimination protects those who have been
discriminated against on grounds of their association with someone
who is disabled.[198]
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 believes it is important to include similar protection
in the age discrimination provisions in the Equality Bill and
would urge the JCHR to recommend that the draft Bill reflects
this need.
ENFORCEMENT
47. In order to ensure adequate protection
of rights it is essential that a robust enforcement mechanism
is available. Help the Aged believes that representative actions
will be a crucial part of this. It is therefore unfortunate that
there will not be provision for representative actions in the
Equality Bill. However, we note that the Government will consider
this issue further.[199]
We would ask the JCHR to monitor progress in this area to ensure
that the full protection of human rights that could be achieved
by the Equality Bill is realised.
164 T Harding, "Rights at Risk: Older people and
human rights", for Help the Aged (2005) Back
165
Lord Lester of Herne Hill QC, "Age Discrimination and Equality,
Help the Aged Annual Lecture" (2001) Back
166
International Covenant on Civil and Political Rights (ICCPR) Art
26; International Covenant on Economic, Social and Cultural Rights
(ICESCR) Art 2 Back
167
Joint Committee on Human Rights, "The Human Rights of Older
People in Healthcare" (2006-07) 156-I p. 25 Back
168
ICESCR Art 12(1) Back
169
Spotlight Survey 2008, ICM Research for Help the Aged (2008) Back
170
Help the Aged, "Best Foot Forward" (2005), produced
with the University of Plymouth and University College Northampton;
Age Concern, "Feet for purpose? The campaign to improve foot
care for older people" (2007) Back
171
Healthcare Commission, the Commission for Social Care and Inspection
and the Audit Commission, "Living well in later life: a review
of the progress against the National Service Framework for Older
People" (2006) Back
172
Art 12(1) Back
173
Bensaid v United Kingdom (2001) 33 EHRR 205 [47];
see also Pretty v United Kingdom (2002) ECHR 427 [61]
where "psychological integrity" is referred to Back
174
R (Razgar) v SSHD [2004] UKHL 27 [74] Back
175
Keenan v United Kingdom (2001) 33 EHRR 38 Back
176
UK Inquiry into Mental Health and Well-Being in Later Life "Promoting
mental health and well-being in later life" (2006) p. 10 Back
177
Office for National Statistics, "Suicide rates in the UK
1991-2006" Back
178
UK Inquiry into Mental Health and Well-Being in Later Life "Improving
services and support for older people with mental health problems"
(2007) p. 4 Back
179
"Improving services and support", p. 8 Back
180
P Bevan & A van Doorn, "Good Practice Briefing on Multiple
Needs" (2002) Back
181
Social Exclusion Unit, "A sure start in later life"
(2006) Back
182
"Fairness and Freedom: The Final Report of the Equalities
Review" (2007) Back
183
National Institute for Mental Health in England, "Making
it possible: Improving mental health and well-being in England"
(2005) Back
184
Pretty v United Kingdom (2002) ECHR 427 [61] Back
185
B Bytheway, R Ward, C Holland and S Pearce, "Too Old: Older
people's accounts of discrimination, exclusion and rejection",
a report from the Research on Age Discrimination Project (RoAD),
Help the Aged (2007) Back
186
Help the Aged, "Nowhere to Go" (2007) Back
187
R (Razgar) v SSHD [2004] UKHL 27 [9] Back
188
The Age and Employment Network, "Survey of Jobseekers Aged
50+" (2008) Back
189
"Discrimination Law Review-A Framework for Fairness: Proposals
for a Single Equality Bill for Great Britain" (2007) [5.25] Back
190
See the discussion in Joint Committee on Human Rights, "The
Meaning of Public Authority under the Human Rights Act" (2006-07)
77; YL v Birmingham City Council [2007] UKHL 27 Back
191
"The Meaning of Public Authority under the Human Rights Act"
[108] Back
192
C O'Cinnedie, "Taking Equal Opportunities Seriously: the
extension of positive duties to promote equality", for the
Equality and Diversity Forum (2004) Back
193
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) Back
194
T Harding, "Rights at Risk: Older people and human rights",
for Help the Aged (2005) Back
195
Joint Committee on Human Rights, "The Human Rights of Older
People in Healthcare" (2006-07) 156-I Back
196
Joint Committee on Human Rights, "The Human Rights of Older
People in Healthcare" (2006-07) 156-I p. 25 Back
197
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 Back
198
Case C-303/06 Coleman v Attridge Law [2008] 3 CMLR
27 Back
199
"The Equality Bill-Government response to the Consultation"
(Cm 7454, 2008), p. 6 Back
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