Age Discrimination

On 1 October 2012 the Government fully implemented the ban on age discrimination enshrined in the Equality Act 2010. It is now unlawful for service providers and commissioners to discriminate, victimise or harass a person because of age. The ban applies in relation to the provision of goods, facilities and services.

Age discrimination is described as “unfairly treating people differently because of their age”. This can be direct discrimination (where it is clear that someone has been less favourably treated because of their age) or can be indirect (in cases where an apparently neutral rule, which applies to all, has a particularly disadvantageous effect on a certain age group). The ban which has been introduced covers 'harmful' usages of age with positive uses able to continue. There are, however, exceptions and differential treatment is not caught by the ban where that treatment can be objectively justified.

As to when age can be used as a basis for making decisions, the guidance is that this would be appropriate when it is right and beneficial to do so, e.g. targeting services and benefits at certain age groups and making provision for the benefit of the individual.

Positive action is also permitted to prevent or compensate for disadvantages experienced by a particular age group or to encourage people from particular age groups to take advantage of opportunities. In this situation the positive action must be objectively justified so that the age-based approach is seen to be a proportionate means of achieving a legitimate aim. An example of a legitimate aim would be ensuring the services are provided to those who are most at need, e.g. more frequent availability of cervical cancer screening for women in the 25-49 year category (in comparison to the 50-64 year category) where statistics have shown that cervical cancer is more prevalent in the younger age group. The proportionality test would be satisfied by establishing that there was not a less discriminatory way of achieving the desired outcome.

The Social Care Institute for Excellence has produced an interim practice guide1 which sets out the specific effects of the legislation in the social care setting. Concerns have been raised in relation to attitudes and that provision on the grounds of age is deeply inbuilt in, for example, the mental health setting where there is a clear divide below and above retirement age. SCIE identify three broad principles underpinning the age quality...