Age UK written evidence

Key points and recommendations

  • Despite the introduction of a new prohibition on harmful age discrimination in provision of goods and services under the Equality Act 2010 in 2012 there remains significant evidence of harmful direct and indirect discrimination on the grounds of age, across a range of sectors notably in health and social care and financial services. We urge the Commission to widen its scope to include consideration of the harmful age discrimination experienced by older people.
  • At global level older people’s human rights are inadequately protected due to the fact that age is not explicitly prohibited as a ground for discrimination in any of the main international human rights treaties. There is urgent need for a UN Convention on the Rights of Older Persons to provide for the first time a definitive, universally acknowledged global standard that articulates the rights which all people hold as they get older and prohibits age discrimination.
  • Age UK endorses the Commission’s starting point that any future human rights legislation in the UK must protect the rights and freedoms in the European Convention on Human Rights. We would be very concerned if proposals for a British Bill of Rights undermined the effectiveness or scope of the Human Rights Act (HRA) or the potential for enforcing.
  • Older people whose care services are funded by a public body other than the local authority, such as the National Health Service or who are paying and arranging for their own care are currently outside the scope of the HRA. The Government must extend HRA protections to all older people by ensuring that all providers of regulated care services are regarded as public authorities for the purposes of the Act, regardless of who is funding the service provided.

1.Discrimination 

1.1. While we fully appreciate the need to focus the Commission’s work on a number of priority areas we are disappointed that the examination of discrimination does not reflect the full scope of protected characteristics under the Equality Act 2010. Crucially from Age UK’s perspective we would urge the Commission to widen its scope to include consideration of the harmful age discrimination experienced by older people.

1.2. Additionally it is important that the Commission considers not only discrimination based on a single characteristic alone but also engages with the more complex issues of intersectional discrimination. In our experience discrimination may be based on older age alone but it may also exacerbate, or be exacerbated by, either the accumulated impact of discrimination over people’s life course or by intersection with other forms of discrimination based, for example, on gender, race, or disability.

1.3. In 2012 a new prohibition on harmful age discrimination in provision of goods and services came into effect under the Equality Act 2010. Despite the inclusion of an unacceptably wide exception for the financial services sector, it was hoped that this legislation would reduce the daily experiences of ageism faced by many older people. In the event this optimism has proved to be somewhat misplaced.

Implementation of the Act has been hampered by low levels of awareness and understanding of the legislation. Research commissioned by the Government Equalities Office among employers and service providers found that some were not even aware that age discrimination is now covered by the Act.49This situation has been exacerbated by failure to provide adequate statutory guidance.

1.4. Without effective implementation of the legislation evidence of harmful direct and indirect discrimination on the grounds of age is all too evident. For example, in 2012 and 2014 Age UK published reports alongside the Royal College of Surgeons and MHP Health Mandate examining access to common surgical procedures. They found that despite limited reference to age in professional guidance treatment rates dropped rapidly for people over 70-75 years.50 We are also increasingly concerned that in the current budgetary climate some procedures that are predominantly performed on patients aged over 65 (such as hip and knee replacements and cataract surgery) have been subject to additional criteria that may undermine access for older patients.51 Such decisions can have a severe impact on someone’s quality of life and the chance to remain independent, thereby limiting the enjoyment of their fundamental human rights.

1.5. In the field of mental health, depression is estimated to affect 22 per cent of men and 28 per cent of women aged 65+.52 However the Royal College of Psychiatrists suggest that around 85 per cent of older people with depression receive no help from the NHS.53 This analysis predated the Equality Act but there is little to indicate that the situation has improved. In fact so-called ‘ageless’ services introduced in response to the Act have affected access to specialist services such as old age psychiatry. The Improving Access to Psychological Therapies (IAPT) programme has admitted that there is a considerable under representation of older people.54

1.6. Age discrimination in the financial services sector restricts older people’s access to essential products.  Mystery shopping in 2012 by Age UK has shown that blanket age limits persist in lending and travel and motor insurance, making it harder for older people to shop around for the best products.55 Mortgage lending too is often restricted by age limits. The Financial Services Ombudsman has reported a number of cases in which older people have experienced difficulties moving home, paying off their mortgages, and taking out extra lending.56 In light of this the exemption of the financial services sector from the ban on age discrimination must be reconsidered.

2.Foreign policy

2.1. At global level we are experiencing huge demographic change; there are currently 868 million people over the age of 60 in the world – approximately one in ten of the population – and by 2050 this number will reach more than 2 billion – one in five of the world’s population – with most living in developing countries.57 However despite these enormous demographic changes, not nearly enough attention is paid to the implications of population ageing and older people’s human rights are inadequately protected at international level. Age is not explicitly prohibited as a ground for discrimination in any of the international human rights treaties, except for one which only applies to migrant workers and their families. The direct effect of unchecked ageism is that older people are at major risk of experiencing discriminatory treatment globally and across a wide range of situations; from undignified and inadequate care in the household, hospitals and residential homes, to unequal treatment in employment and inadequate responses in emergency and humanitarian situations.

2.2. This failure to address discrimination on the basis of older age and to recognise ageism as a harmful social norm is one of the most significant gaps in the protection of human rights in older age. There are also other areas where older people’s rights may not be adequately protected at the international or national levels, for example freedom from all forms of violence and abuse, the right to make advance decisions about our end of life care, the right to palliative care and the right to long term care and support.

2.3. Since December 2012, the Open-Ended Working Group on Ageing (OEWGA) has been considering, under a mandate from the UN General Assembly, the need for a new human rights instrument on the rights of older persons. This has been complemented by the work of the Independent Expert on the enjoyment of all human rights by older persons, appointed by the Human Rights Council in 2014 to further interrogate this issue. The Independent Expert is now due to submit her final report to the Human Rights Council in September 2016 which will be followed at the end of the year by the 7th session of the OEWGA.

2.4. As the debate over drafting a new human rights convention for older people intensifies we believe that the UK Government has an opportunity to play a leading and influential role. Rather than wait for this agenda to be set by others, with its strong stance on promoting human rights globally the UK Government is well placed to take the lead in this area and help shape the convention.

3.British Bill of Rights

3.1. The Government has made a manifesto commitment, reiterated in the Queen’s Speech in May 2016 to repeal the Human Rights Act 1998 (HRA) and replace it with a British Bill of Rights. It is Age UK’s view the existing legislation provides a strong foundation for preventing abuses of older people’s rights and we do not think the case for its repeal has been made. We would be particularly concerned if the proposals undermine the effectiveness or scope of the HRA or the potential for enforcing it for example by limiting its use to cases which are determined to be the most serious allowing the UK courts to strike out cases deemed to be ‘trivial’. We wholly endorse the Commission’s starting point that any future human rights legislation must protect the rights and freedoms in the European Convention on Human Rights.

3.2. It is a matter of serious concern that not all older people in receipt of regulated care services have their human rights protected by HRA.  Section 73 of the Care Act 2014, extended the HRA to explicitly cover all those receiving care funded or arranged by the local authority. However while welcome, this was only a partial closure of the protection gap that exists and continues to leave those whose care is funded by another public body, such as the National Health Service or who are paying and arranging for their own care outside the scope of the HRA.

3.3. Far from being a legal technicality this lack of human rights protection can have a very real detrimental impact on those receiving care. A number of cases have come to our attention recently that demonstrate this, including examples of older people facing unfair eviction from care homes in possible breach of their right to private and family life who currently have no means to challenge those decisions under the HRA.

3.4. The Government must extend HRA protections to all older people by ensuring that all providers of regulated care services are regarded as public authorities for the purposes of the Act, regardless of who is funding the service provided.

Conclusion

4.1. Many people experience infringements of their human rights in later life in the UK and around the world. This can take the form of abuse and degrading treatment; unwarranted deprivation of liberty and autonomy; lack of protection for family and private life; and routine discrimination. Often these human rights breaches are not recognised as such. This is why it is vital that our current legal framework both within the UK and at a global level is maintained and strengthened so that more older people are able to benefit from its protection.