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Equality Act 2010 (Age Exceptions) Order 2012

Volume 739: debated on Tuesday 17 July 2012

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Equality Act 2010 (Age Exceptions) Order 2012.

Relevant document: 5th Report from the Joint Committee on Statutory Instruments.

My Lords, I am pleased to confirm to the Committee that from 1 October 2012 our intention is that it will no longer be lawful to provide inferior goods, services or facilities, or simply to refuse to provide them at all, because of a customer’s age. This includes public services such as health and social care. Unjustified age discrimination is already prohibited in the workplace. After extensive consultation and deliberation over recent years and by different Administrations, it is now time to complete the task and end such discrimination in the provision of services. We are doing this by implementing the prohibition on such discrimination in the Equality Act 2010, which had cross-party support during its passage through your Lordships’ House. Alongside the prohibition on unjustified age discrimination I am pleased to present this draft order, which contains necessary exemptions to it. With Parliament’s approval, this order will come into force on 1 October 2012, alongside the prohibition.

I turn now to the specifics. Harassment and victimisation related to age will be banned without exception. However, concerning discrimination itself, we need to ensure that the new law prohibits only harmful or unjustifiable discrimination because of age. It should not outlaw the many instances of justifiably different treatment. Nor should it have the practical effect of ending such treatment. The draft order therefore sets out a number of targeted exceptions to the ban on direct age discrimination. They add provisions to Section 195 of—and Schedules 3 and 16 to—the Act under the power contained in Section 197. Those exceptions specify particular types of age-based actions, measures and practices that we consider to be justifiable, beneficial or needed for sound public policy reasons. The exceptions will provide legal certainty for both service providers and customers. Extensive consultation on that issue in 2009, and again in 2011, has helped us to decide where exceptions are needed and what shape they should take.

I will now briefly run through the exceptions in order. The specific exception for immigration in Article 2 allows immigration officers to continue to consider age when determining a person’s eligibility to enter and remain in the UK. For example, it would permit the continuation of the youth mobility scheme, which allows young people aged 18 to 30 to come to the UK for a limited period to experience life here and perhaps earn some money.

Article 3 allows financial service providers, such as banks and insurance companies, to continue to use age to determine, for example, the products and prices that they offer. Financial service companies need to factor age into their products and prices, because people of different ages carry different risks. The most obvious example is that of insurance. However, the exception is qualified because it requires any risk assessments related to age to be based on relevant information from a source on which it is reasonable for the provider to rely. We know that some older people, in particular, are concerned about access to insurance, so we have also endorsed a voluntary agreement by the insurance industry to improve that. The agreement started on 6 April this year and commits insurance companies to signpost customers to different providers if they cannot provide cover. It also commits the industry to show how it prices products by reference to age.

On concessionary services, Article 4 is probably the widest ranging exception and one particularly welcomed by small business. It allows any service provider to offer a concessionary service based on age: for example, enabling a hairdresser or someone who owns a fish and chip shop to continue to offer discounts for pensioners.

Article 5 is an exception for age-related group holidays. It may be helpful to your Lordships if I touch on our overall approach to applying the prohibition to the holiday sector. We have taken the view that the provision of holiday accommodation, be it a hotel, chalet or rented cottage, should not be treated differently to the provision of other mainstream goods and services such as shops and restaurants. For example, while a hotel or cottage owner could offer discounted rates to pensioners, taking advantage of the exception in Article 4 which I previously described, they could not refuse to let rooms or their property to adults aged under 25 or 21 without showing sufficient reason—for example, evidence that their property had been damaged by younger people in the past. I refer to younger adults because the ban does not protect children, so hotels and restaurants can still lawfully have a “no children” policy from 1 October.

Our proposed treatment of some holidays, as opposed to holiday accommodation, is somewhat different for a particular reason. Rather than applying to holiday providers as a whole, the exception in Article 5 addresses the specific and limited circumstances of package holidays designed for people in certain age groups. In other words, it applies where mixing with people of a similar age is a key element of the product and its enjoyment. For example, when the product includes travel to the holiday destination, accommodation and activities during the vacation, this would qualify as a “relevant holiday service” for the purposes of the exception. Noble Lords may recall that this was an exception called for by several noble Lords in this House during the passage of the Equality Bill in 2009 and we have been convinced by those arguments.

Article 6 covers age verification schemes, which are used by retailers selling age-restricted products when they challenge customers where there is a doubt that they are not old enough to purchase the product. The exception allows this to continue so that retailers can, for example, ask for proof of age before selling products such as alcohol or cigarettes. This new exception was added following the last consultation.

Article 7 covers residential mobile homes in which people live as their main residence, but not holiday lets. This exception recognises that there is an important quality of life issue for people who want to live among others of a similar age group in contrast to the transient nature of holidays. It accordingly allows operators of residential park home sites to continue to include age limits in their park admission rules and other arrangements in respect of the sale and occupation of pitches and mobile homes.

Article 8 inserts a new exception into Schedule 16 to the Equality Act allowing, for example, golf clubs to offer concessions to members above or below a certain age or based on length of membership. Article 9 permits the use of age restrictions in sport, where many events are classified according to age bands at local, regional, national and international level. It obviously makes sense to allow such age banding to continue.

As well as the specific exceptions in this order, the Equality Act contains a statutory authority exception, which allows differential treatment based on age where this is required or allowed by statute. For example, exceptions to charges for prescriptions and eyesight tests based on age are provided for in legislation, as is the age of entitlement for the state pension and things such as free bus passes.

Exceptions are not the only means available to service providers wishing or needing to treat customers differently on the basis of age. Under the Act, it will be possible for service providers to justify treatment that would otherwise amount to direct or indirect age discrimination. They can discriminate where they can show that it is a proportionate means of achieving a legitimate aim. That is the legal wording but, less formally, this test is known as objective justification.

I gave an example earlier of a holiday cottage owner not wishing to rent to very young adults because their cottage had been damaged by such people in the past. Another example of objective justification might be a car rental company that has had several of its cars written off by drivers aged under 25 or over 75. It could decide not to rent cars to people in those age groups or perhaps to charge them a little more. It could seek to justify that by pointing to the need to reduce road accidents generally and particularly those caused by its clients. It might also, for example, argue that it needed to run its business efficiently. Whatever case the company might make, it would need to demonstrate how the remedy adopted was proportionate to the aim. If someone then took the company to court for not renting them a vehicle or offering them a vehicle on less favourable terms, the court would have to decide whether the company’s actions were legitimate in all the circumstances.

There is widespread acknowledgement that we need to do more to address the growing evidence of poor or inferior treatment of older citizens by the health service and in social care. That is not of course to say that all who work in these sectors are discriminating in this way, but a series of recent reports have exposed existing shortcomings. Therefore, there are no specific exceptions from age discrimination for health or social care.

The ban is not the whole answer. The NHS and the social care sector are making great strides to improve the experience of older customers, in particular, but where things continue to go wrong the ban will provide a valuable new means of redress for patients. Therefore, whenever different treatment is proposed or provided for patients because of their age, the health or care provider will have to objectively justify it, if challenged. I believe that this meets our intention to eliminate harmful age discrimination in an area where the greatest concern has been expressed. At the same time, we are preserving the ability to use age factors where it is right to do so; for example, in targeting cancer screening on the age groups most at risk.

This legislation is targeted, fair and proportionate. We have consulted extensively on it. The vast majority of businesses and organisations will be able to continue to operate as usual, and certain areas will be exempt from the ban altogether. The new law prohibits only harmful or unjustifiable treatment that results in genuinely unfair discrimination because of age. It will not outlaw the many instances of different treatment that are either justifiable or do not give rise to harm. I commend the order to the Committee.

My Lords, I thank the Minister for her very good explanation of this rather straightforward order. The order arises out of the Equality Act 2010, which my noble friend Lady Royall and I took through the House before the general election. There are two areas that I want to explore.

We welcome the implementation at last of Labour’s age discrimination legislation and the fact that that the Act will come into force in October. What preparatory work is being undertaken to explain and publicise this important legislation and which government departments are involved in its implementation and rollout? Is it, for example, BIS or the DWP? Is support being given to employers and employees? Perhaps the Department of Health—to which I will return—is involved as well. Who is leading on the preparation for rollout of the legislation in October? Is it the Government Equalities Office or the EHRC? What quantum of resources might be applied to it? The impact assessment, which came with the helpful notes accompanying the order, explains what the impact might be on businesses, charities and voluntary and public sector bodies; it does not say what resources might be put into explaining and promoting the legislation.

I welcomed the Minister’s mentioning the Government’s awareness of issues relating to discrimination in health services, because, even at Question Time today and as the Minister will know, a noble Baroness mentioned that older people with depression are not being offered talking therapies because of their age. The breast cancer charities produce enormous amounts of evidence that suggests that older women with breast cancer are routinely undertreated.

Are the Government still refusing to implement the dual discrimination provisions in the Equality Act which will make it easier to challenge the multiple layers of discrimination that older people face, such as the toxic combination of ageism and sexism? The Secretary of State said on 15 May that there would be a delay to the commencement of the dual discrimination provisions. What does that mean? How long is that delay going to be? When can we see orders which implement those provisions, or an intention to do so?

During the passage of the Bill in another place, the Minister’s colleague, Lynne Featherstone, put down an amendment which suggested that the Bill be implemented within six months of its passage, because she did not trust what might happen after the general election and she feared that the party elected, if it was not sympathetic, might not implement it. The Minister will be pleased to know that a combination of my then right honourable friend Vera Baird and her honourable friend Mr Harper persuaded Ms Featherstone that this was not necessary and that the Bill would be implemented, albeit perhaps with a delay—as is the case.

I turn to the orders in front of us today. Of course we welcome them; why would we not? They directly arise from commitments given during the course of the Bill in February and March 2010. There were serious discussions during that period with Saga, Age UK and organisations that provide financial services about what those exceptions should be. The continuing consultation seems to have covered most of those points. My only question about the consultation arises from the fact that Age UK mounted a campaign objecting to the proposed specific extension of financial services, because in its view that would continue to perpetuate the culture of ageism. What is the Government’s view of that campaign? The 17 campaign letters received from Cornish self-catering holiday home workers seeking a specific exception to ban young people from their accommodation have my total sympathy, when one hears about what young people get up to in Cornwall after their exams.

We welcome this measure. We think it is important, and I hope that the Government are going to put resources into supporting organisations and people during its implementation in October. During the debate in March 2010 there was cross-party agreement in the House about these exceptions, and I think that the Government have covered all the issues that needed to be covered. My only questions are about its implementation, resources and publicisation, and ensuring that all the people who should know about this will know about it.

My Lords, I, too, congratulate the Government on the great deal that has been achieved. I have memories of the heavy support for Saga initiatives and so on, which clearly have been very well handled subsequently.

I have a specific question about the Equality and Human Rights Commission. I happen to have been seeing the commission about another matter today, and as a result have received some comments about the articles that we are discussing. My general question, and I will back this up in a minute with a specific one, is whether the Government have had more recent detailed discussions with the EHRC and made certain that it is satisfied. I am thinking particularly about Article 4, “Exceptions for concessionary services”. The commission says:

“In its 2011 consultation response, the Commission noted that the exception for general beneficial concessions was limited by a test of reasonableness. The exception also contained a requirement that the concession (or more favourable term) did not have the effect of preventing persons of other age groups from requiring the services. However, in the version of the Order currently before Parliament”,

apparently,

“both these limitations have been removed”.

The commission, having analysed Article 4, advises that,

“as currently drafted, the exception may fail to meet the policy intention of the exception, as stated by the Government Equalities Office in its 2011 consultation paper: ‘The exception will not, however, allow concession to be a deterrent to people who do not qualify for them or unreasonably to inhibit access to the service concerned by those outside the target age group’”.

The commission says that:

“There is a risk that, as currently drafted, the exception could be used to create artificial pricing structures designed to exclude older (or younger) people from access to particular services”.

A number of examples are given, including a fashion retailer which wishes to maintain a younger customer profile. It inflates its prices for clothing while offering a 50% discount for the under-30s, thereby allowing them still to pay reasonable prices.

As regards my main point, have the Government had discussions? Is the Commission reasonably satisfied, from its independent perspective of not being part of a government department—its independence is crucial to the way in which it operates—with what the Government are doing? Have the Government at least explained why they are doing things in a specific way? Has the Commission accepted that as the Government’s right?

First, I declare an interest as a commissioner for the Equality and Human Rights Commission. I also wish to pay tribute to my noble friend Lady Verma for very comprehensively setting out the provisions of the Equality Act 2010 (Age Exceptions) Order 2012. She took us all the way through the order. I welcome the order and, in answer to the noble Baroness, Lady Howe, the Commission has also welcomed it.

Noble Lords might recall one of the key recommendations of the Equality and Human Rights Commission’s very successful inquiry into older people and human rights in home care, which quite recently received widespread publicity. In that work, there was a specific call for the ban to commence as soon as possible in order to tackle the problem of ageist attitudes and unjustifiable age-based discrimination in this sector, some of which we know has been endemic and harrowing.

I should like to ask the Minister a couple of questions. I recognise that the legislation should allow for some types of age differentiation to remain lawful. However, as has been explained in response to some of the consultations last year, we have concerns about some of the exceptions—for example, Article 3 and the financial services. Obviously, we all have concerns about the financial services. That exception could be seen to have been cast rather widely in that it refers to the whole sector as well as covering all transactions and interactions between customers and service providers.

As drafted, the exception would make it difficult or impossible to challenge some types of age discriminatory treatment. I understand that these things happen; for example, a bank may decline someone over the age of 75 applying for a credit card or making another type of application. Given this exemption, presumably a bank still would be able to do that. How would such a 75 year-old have recourse to that treatment? Could that be redressed under this provision?

Another example might be that of an insurance company making a decision about someone at the other end of the age spectrum, someone aged under 25. When insuring young people for driving a car, we know that many insurance companies tend—I will not use the word discriminate—to make it more difficult or charge higher prices for those under the age of 25. What safeguards may be in place to address these points?

I very much agree with what the noble Baroness, Lady Thornton, said about information to ensure that service providers, employers and the general public are made well aware of these new provisions, as well as of their rights under the new Act.

My Lords, I thank noble Lords for their warm welcome to the order and for giving it reasonably easy travel. However, a number of points have been raised so I will deal with those first. If I do not manage to satisfy noble Lords today, I will undertake to write a fuller response and get a copy placed in the Library.

The noble Baroness, Lady Thornton, asked how the Government were preparing service providers for implementing this order from October. There is going to be tailored guidance, which is prepared by the Home Office and the GEO, and we hope that it will be published within the next week or so. It will be tailored to specific sectors. The Department of Health will be providing its own guidance to the health service and to its employees, and Her Majesty’s Treasury will issue guidance related to the financial services sector.

The noble Baroness asked about dual discrimination and other delays. At this moment, we do not have plans to implement dual discrimination. This position, and its feasibility and potential burden on businesses, has been and is being reviewed in the course of our Red Tape Challenge initiative. GEO will be leading on this implementation plan, so we will be the lead within the Government taking this forward.

The noble Baroness, Lady Howe, asked if the EHRC had concerns about Article 4 on concessions. We do not believe so. We have simplified the exception, but on the basis that it would not undermine access to the service for age groups not the subject of a concession. We consider it highly unlikely that providers would introduce a warped pricing system just to exclude a particular group. After all, shops, cafes and places like that are there to maximise their take on monetary value and are hardly likely to deprive themselves of valuable customers in that way. She also asked whether we had discussed Article 4 with the EHRC and my noble friend Lady Hussein-Ece clarified that position—yes, we did. We have had discussions on the consultation with the commission throughout, as with other groups. We have not had any recent discussions with it but we have not been made aware of any opposition that it may have to the order.

My noble friend raised the point that the financial services exemption was too broad. I suspect that my response is not going to satisfy her on the question of credit cards, and we may have to come back with a bit more detail on that one. However, in most cases the problem is not that people cannot access insurance; it is that they do not always have the information about other alternatives. That is why the insurance industry has entered into an agreement with the Government to improve signposting and transparency to ensure that no one is left without access to an insurance service. However, they need to comply with responsible lending practices as well. Their entire business or individual services may be part of the market in which they have particular expertise. The example that comes to mind straightaway is Saga.

On the whole, the order covers most of the concerns raised by noble Lords. We agree on principle that older people—indeed, people of all ages—have to be treated fairly and that there should be no deviation from that principle. Equally, however, we know that we want some preferential treatments, such as free bus passes and discounts for older people, to continue. On that basis, we are confident that the combination of these exceptions and the discrimination ban will keep a balanced approach in what the Government are trying to do.

Motion agreed.

Committee adjourned at 5.20 pm.