Definitions, legal framework and implementation

What do we mean by 'age discrimination' and 'age equality' in the provision of health and social care services?

The academic literature has defined and described 'ageism' since the 1960s and the pioneering work of Robert Butler. The Centre for Policy on Ageing produced four reviews of the literature to inform Achieving age equality in health and social care (Sir Ian Carruthers and Jan Ormondroyd, 2009) and these summarise the range of concepts that academics and policy commentators have used to describe age discrimination and age equality.

Age discrimination was banned in employment in 2006 and will be banned in the provision of services and the exercise of public functions when the relevant measures in the Equality Act 2010 are brought into force (planned to be in 2012). The text of the Act is available at http://www.opsi.gov.uk/acts.htm. A document you might find useful is Age and the Equality Act 2010: a brief overview (referred to below as the overview note) which provides an introduction to the relevant parts of the legislation. Local health and social care organisations will want to be familiar with both the wider debate within the published literature about age discrimination and equality, and understand the specific provisions of the Equality Act 2010.

Some of the key concepts

Age equality - The Equality Act 2010 establishes a new legal duty on public bodies to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations in the exercise of its functions in relation to eight protected characteristics, including age (see the overview note for more details). This duty applies to people of all ages.

The published literature takes a broader view of age equality. Help the Aged (2007) explains that "equality means ensuring that all individuals (irrespective of their age) have the opportunity to live in the way they choose, according to their values; that their different needs, situations and goals are recognised and respected; and that they are treated equally with fairness, dignity and respect."

Age Concern (2009) explains age equality "involves balancing the goals of equal citizenship, equality of opportunity and equality of outcome". Equality does not mean treating everyone the same but is about ensuring that people are treated fairly and equitably according to their needs. Advancing equality is closely linked with protecting and enhancing human rights.

Age discrimination - The Equality Act 2010 generally bans age discrimination in the provision of services and the exercise of public functions. This ban applies in relation to people aged 18 or over. Direct discrimination because of age is defined in the legislation as the less favourable treatment of one person relative to a comparator (who may a real or hypothetical person) because of age, subject to the point below about objective justification.

The Centre for Policy on Ageing (CPA, 2009) looked at the wider published literature that mainly pre-dates the Equality Act and they draw the distinction between ageism as an "attitude of mind" while age discrimination is "a set of actions with outcomes" (Ageism and age discrimination in secondary health care in the United Kingdom: A review from the literature" p8) .

The Equality Act does however recognise that different treatment is not age discrimination if it can be "objectively justified". The Act also includes some “exceptions” to the ban on age discrimination, and provides powers to make further exceptions, which are likely to be consulted upon in the autumn 2010. (see the overview note for more details).

Subject to the point above about objective justification, direct discrimination is when a person is treated less favourably than another because of their age while indirect discrimination is when a provision, criterion or practice is applied equally to people of all ages but results in one particular person or age group being at a particular disadvantage relative to other age groups. Both forms of discrimination are covered by the ban.

The CPA (2009), drawing on the wider literature, describes the difference as follows: "Direct age discrimination will occur if people with comparable needs are treated differently, purely on the basis of their age. Indirect age discrimination will occur if people from different age groups, with different needs, are treated in the same way, with the result that the needs of the older person are not fully met." The Equality Act is clear that both forms of discrimination are covered by the ban.

Ageism "means prejudging or making assumptions about people on the basis of their age" (Help the Aged 2007), so it concerns a set of negative beliefs, such as stereotypes, that lead to age discrimination. Addressing ageist attitudes is part of wider government policy, specifically in Building a society of all ages (2009) and so it is part of the wider work on ending age discrimination and promoting age equality rather than a specific provision within the Equality Act.

Age sensitive or age appropriate attitudes, behaviours and actions are where there is a well-developed understanding of the needs of people at particular stages of their life. Examples of this would include designing services to meet the specific needs of a particular age group.

What has the Government said about age discrimination and equality in health and social care?

Ending age discrimination and promoting age equality is government policy and the Government has recently made a number of statements about age equality and discrimination:

The timetable for implementing the provisions in the Equality Act is as follows:

October 2010: most of the Act, including the provisions that replace existing legislation.

April 2011: implementation of the new public sector duty, including age, to have due regard to the need to advance equality.

2012: implementation of the ban on age discrimination in the provision of services and exercise of public functions.

The Department of Health's report on its consultation on Achieving age equality in health and social care was published on 9 March 2010.

The White Paper Equality and excellence: liberating the NHS (published in July 2010) says: “we are committed to promoting equality and will implement the ban on age discrimination in NHS services and social care to take effect from 2012.”

The consultation document Liberating the NHS: Commissioning for patients, July 2010 makes it clear that commissioners in GP consortia and the National Commissioning Board “will have a duty to promote equalities”

The Revision to the NHS Operating Framework 2010-11 says “building a service that is personal, fair and diverse requires recognition of the differing needs and skills offered by groups within our communities. There are real opportunities presented by the implementation of the Equality Act in developing such a service where everyone counts”

The NHS Operating Framework 2010-2011 says "NHS organisations need to take account of Achieving age equality in health and social care, the report of the review led by Sir Ian Carruthers and Jan Ormondroyd."

Over the next few months there will be a number of further consultations and publications including:

  • The Equality and Human Rights Commission has produced guidance on the Equality Act (http://www.equalityhumanrights.com/advice-and-guidance/guidance-equality-act-2010/equality-act-2010-guidance/) which focuses on the changes that came into effect on 1 October 2010.
  • Further guidance from EHRC will follow on the public sector equality duty and the ban on age discrimination.
  • The Government Equalities Office is consulting on the detail of the public sector duty (closing in November 2010) which includes proposals that for a requirement to publish age-equality data annually and equality objectives every four years. Other aspects of the legislation will also be consulted upon, notably a consultation into exceptions to the ban on age discrimination (http://www.equalities.gov.uk/equality_bill.aspx).
  • The NHS Equality and Diversity Council will be consulting on the Equality Delivery System (EDS), which sets out the approach proposed for the NHS to improve its equalities performance. The consultation will lead to implementation from April 2011.

The 'Preparing for the audit' section of this site will help local NHS organisations decide how they want to work with social care colleagues and the wider group of local stakeholders to prepare for the legislation

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