Memorandum submitted by Age Concern England
and Help the Aged
KEY POINTS
1. We welcome the Equality Bill as a groundbreaking
piece of legislation that will give older people the protection
that they urgently need against age discrimination.
2. The Equality Bill offers an opportunity
to promote and protect the human rights of older people.
3. However, until there is a firm commitment
to implementation of the provisions relating to age and a clear
and appropriate timetable we are concerned that the promise that
the Bill offers will not be delivered.
INTRODUCTION
4. Age Concern and Help the Aged welcome
the opportunity to comment on the compatibility of the Equality
Bill with the UK's human rights obligations.
5. Age Concern and Help the Aged have joined
together to improve the lives of older people.
6. We have collected a vast quantity of
evidence of the pernicious effects of age discrimination on the
human rights of older people. These demonstrate that at its worst
age discrimination can be a matter of life and death.
7. In October 2008 Help the Aged responded
to the JCHR's earlier call for evidence on the, as then unpublished,
Equality Bill.[246]
The response said:[247]
— The Equality Bill would enable the principles
of non-discrimination to be enshrined in domestic legislation.
— The Equality Bill would present an opportunity
to significantly improve the provision of health and social care
services to older people.
— Prohibiting age discrimination on goods,
facilities and services can significantly improve older people's
enjoyment of their human rights.
— It was concerning that in sectors that
were already covered by age discrimination legislation discrimination
was allowed to continue, for example through the use of mandatory
retirement ages.
— Not enough was being done to meet the
housing needs for older people and to ensure respect for the homes
of older people.
— The Equality Bill should reflect the
judgment of the European Court of Justice in Coleman and
extend protection to carers.
8. With the benefit of the published Bill
Age Concern and Help the Aged are pleased to comment further on
some of these points.
GOODS, FACILITIES
AND SERVICES
9. We welcome the extension of age discrimination
legislation to cover the provision of Goods, Facilities and Services
(GFS). However, there is an absence of clarity and certainty with
respect to implementation. The Government has proposed that the
new age GFS provisions should be commenced in 2012—with
health and social care possibly following later.[248]
We understand the argument for giving services providers time
to adapt. However a delay would only be acceptable if there is
a cast iron guarantee that the new laws will come into force.
To achieve this we recommend that the bill includes clear deadlines
for the age GFS provisions to come into effect.
10. ln order to ensure that the spirit and
intent of the Equality Bill is not defeated we believe that it
is vital that the exacting test for justifying direct age discrimination
should not be supplemented by a wide range of open-ended exemptions.
Clause 190 introduces a strong power allowing ministers to
amend the Equality Bill through Orders in Council to allow for
exemptions to the prohibition on age discrimination in GFS. Until
there is clarity with respect to the use of this power older people
cannot be certain that the forms of discrimination they worry
about most will be outlawed and that their human rights will be
protected. As a minimum we propose two steps:
— Ministers should be required to publish
draft orders during the parliamentary stages of the bill for parliamentary
scrutiny and consultation;
— Clause 190 should be amended to
include a deadline, so that orders must be laid for the first
time within a reasonable period.
11. Alternatively, we see no reason why
the scope of exemptions should not be determined by the autumn
and included on the face of the bill.
12. We welcome the recently commenced work
led by the Chief Executives of the South West Strategic Health
Authority and Bristol City Council to determine what exemptions
are needed in the fields of health and social care. The review
will report in October. We are keen that the process for defining
exemptions in other sectors, especially financial services, reaches
conclusions over the same timescale to ensure clarity during the
passage of the bill. This would enable ministers to either publish
draft orders or place exemptions on the face of the bill in the
House of Lords.
DISABILITY RELATED
DISCRIMINATION
13. Age Concern and Help the Aged have previously
expressed concern about the effects of the House of Lords decision
in Malcolm.[249]
We are pleased to see that the Bill includes a clause to reverse
the effect of that decision.
DISCRIMINATION AGAINST
CARERS
14. We believe that it is vital that the
Bill reflects the decision of the European Court of Justice in
Coleman[250]
and extends protection to carers who are discriminated against
because of their association with someone they are caring for,
whether that is an elderly person Or a person with a disability.
We are pleased to see that the Government believes that the Bill
does adequately reflect Coleman.
MULTIPLE DISCRIMINATION
15. Older people can be the subject of discrimination
on multiple grounds. For instance, older women can encounter difficulties
in the work force that do not affect either older men or younger
women. Age Concern and Help the Aged believe that it is important
that the Equality Bill provides protection for people in this
position. We are pleased to see that the Government Equalities
Office has consulted on a possible amendment to the Bill that
will provide some protection to those people who suffer discrimination
due to a combination of protected characteristics. We look forward
to seeing a suitable provision tabled as an amendment to the Bill.
PREMISES
16. Age Concern and Help the Aged are very
concerned that Part 4 of the Bill, which covers premises,
contains a blanket exemption for age. We believe that this leaves
older people's human rights at risk in relation to their housing.
17. While the European Convention of Human
Rights does not provide a right to housing,[251]
we note that the JCHR recommended that such a right should be
included in any new Bill of Rights for the UK.[252]
Age Concern and Help the Aged are concerned that the otherwise
powerful message that the Equality Bill sends that age discrimination
is wrong is undermined by such an exemption. If there are legitimate
reasons for continuing to use age as a factor when making some
decisions relating to premises then these should be covered either
by the objective justification test, or by carefully drawn and
specific exemptions.
VOLUNTEERS
18. We note that in its letter to Solicitor
General Vera Baird QC the JCHR asked whether "volunteers
receive adequate protection against discrimination or is additional
specific provision to this effect required in the Bill?"
Age Concern and Help the Aged support the extension of protection
from discrimination to cover volunteers.
19. Older retired people have been described
as the glue that binds communities together. Age Concern and Help
the Aged believe that older volunteers make a substantial contribution—not
only to the organisations they support but also to their local
community, as well as to wider society and the country's economy.
Their skills and loyalty are often valued and respected, but those
who contribute their time to the community still come up against
arbitrary age barriers.
20. Older volunteers can encounter age barriers
that deny them access to volunteering opportunities or force them
to leave their positions. This is a real and serious problem particularly
within parts of the voluntary sector. The Equality Bill is the
ideal opportunity to address this unjustifiable discrimination.
21. We would argue that enjoying the benefits
of volunteering should be treated as a "facility", thus
falling within the scope of the GFS discrimination measures. The
Bill should outlaw all age-based rules and practices including
upper age limits for volunteering, except when these can be objectively
justified. Other types of age-based unfair treatment by host organisations
should also be outlawed, such as a reduction in responsibilities
based on ageist attitudes.
22. To achieve consistency across all discrimination
grounds, a similar approach should be taken for unfair treatment
of volunteers based on their race, gender, disability, sexual
orientation, religion or belief.
23. We understand that this view is supported
by a number of leading disability charities.
FORCED RETIREMENT
24. Age Concern and Help the Aged believe
that the new Equality Bill is a missed opportunity to tackle the
unfairness of the National Default Retirement Age (NORA). The
NORA was introduced by Regulation 30 of the Employment Equality
(Age) Regulations 2006.[253]
Jobseekers over the age of 64 ½, can be discriminated
against by virtue of regulation 7(4)(b). The Regulations were
introduced to transpose Directive 2000/78 into domestic
law. We are currently challenging the lawfulness of the Regulations
in the High Court.
25. Schedule 9, paragraphs 8 and 9,
of the Equality Bill maintains the NDRA and the associated exemption
for recruitment over the age of 64 ½. The effect
of these provisions is not just to deny a right to work to those
older than 65, but to encourage all older workers to be viewed
as less worthy of employment.
26. ln its recent report on the Equality
Bill the Work and Pensions Committee recommended that the NDRA
should be removed as it "contradicts the Government's wider
social policy and labour market objectives to raise the average
age and allow people to continue to work and save for their retirement."[254]
We wholeheartedly agree and further suggest that abolishing the
NDRA will help to promote older people's human rights.
27. Although . there is no right to work
guaranteed by the European Convention of Human Rights, Article
6 of the International Covenant on Economic, Social and Cultural
Rights does recognise such a right. We therefore submit that removing
this injustice is relevant to the JCHR's work.
PUBLIC SECTOR
EQUALITY DUTY
28. Age Concern and Help the Aged warmly
welcome the extension of the public sector equality duty to cover
age. This will help public authorities to spread best practice
in achieving equality amongst people of different ages. It will
lead to the differing needs of different age groups being taken
into account by public authorities in the planning and delivery
of services. We believe that this will be an important way of
promoting equality and ensuring the protection of older people's
rights.
29. We look forward to this Duty coming
into force and the changes that it will help to bring. However,
we are concerned that in two areas the Duty proposed in the Equality
Bill needs to be strengthened.
30. We note that the Equality Duty will
be a "due regard" type duty. While we agree that this
has the potential to deliver significant improvements in the delivery
of public sector services, we believe that a stronger duty would
bring greater improvements to the lives of older people sooner.
31. We are also worried that uncertainty
about the extent of the duty may frustrate its effectiveness.
32. ln Help the Aged's previous submission
to the JCHR we said:[255]
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.
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. 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.
33. lt is therefore disappointing that clause
144(5) relies entirely on the Human Rights Act, without any attempt
being made to clarify the uncertainty and confusion that has surrounded
this aspect of the Act.
246 Press Notice Number 51, Session 2007-08, 31 July
2008 Back
247
Help the Aged, Help the Aged Submission to the Joint Committee
on Human Rights on Equality Bill (2008) Back
248
Government Equalities Office, A Fairer Future: The Equality Bill
and other action to make equality a reality (2009), p 15 Back
249
London Borough of Lewisham v Malcolm [2008] UKHL 43; Help the
Aged and Age Concern, Response to Consultation on Improving Protection
From Disability Discrimination (2009) Back
250
Case C-303/06 Coleman v Attridge Law [2008] 3 CMLR 27 Back
251
Although Article 11 of the International Covenant on Economic,
Social and Cultural Rights does; there are also examples of discrimination
in relation to housing that would engage Article 8 of the
Convention Back
252
Joint Committee on Human Rights, "A Bill of Rights for the
UK?" (2007-08) HL165-1 [191] Back
253
Employment Equality (Age) Regulations 2006 (SI 2006/1031) Back
254
Work and Pensions Committee, "The Equality Bill: how disability
fits within a single Equality Act" (2008-09) HC 158-1 [122] Back
255
Help the Aged, Help the Aged Submission to the Joint Committee
on Human Rights on Equality Bill (2008) [37]-[38] Back
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