Age Discrimination and Public Authorities. Andrew Hogan

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1 Age Discrimination and Public Authorities Andrew Hogan

2 Introduction 1. On 1 st October 2012 the provisions in the Equality Act 2010, which prohibit age discrimination in the provision of goods and services and the exercise of public functions, came into force These provisions will create new causes of action permitting victims of age discrimination to bring either claims in the county court for damages and other relief, or to seek judicial review of the decisions of public authorities which are flawed and illegal, by reason of age discrimination. 3. The purpose of this newsletter is to discuss how public authorities who, knowingly or unknowingly, commit age discrimination can be held to account. Concepts of discrimination 4. Section 29 of the Equality Act 2010 provides, so far as is material, a general prohibition on discrimination in the context of service provision and the discharge of public functions: (1) A person (a service-provider ) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service. (2) A service-provider (A) must not, in providing the service, discriminate against a person (B) (a) as to the terms on which A provides the service to B; (b) by terminating the provision of the service to B; (c) by subjecting B to any other detriment. (3) A service-provider must not, in relation to the provision of the service, harass (a) a person requiring the service, or (b) a person to whom the service-provider provides the service. 1 See the Equality Act 2010 (Commencement No 9) Order 2012 and the Equality Act 2010 (Age Exceptions) Order /7

3 (4) A service-provider must not victimise a person requiring the service by not providing the person with the service. (5) A service-provider (A) must not, in providing the service, victimise a person (B) (a) as to the terms on which A provides the service to B; (b) by terminating the provision of the service to B; (c) by subjecting B to any other detriment. (6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation. 5. Direct discrimination is defined by section 13 to be: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim. 6. Indirect discrimination is defined by section 19 to include: (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim. 3/7

4 (3) The relevant protected characteristics are age; 7. Harassment and victimisation are further defined by sections 26 and 27. It should be noted that allegations of either direct or indirect discrimination are subject to a defence of justification by the alleged tortfeasor. The defence of justification has been the subject of discussion and comment at the highest judicial levels, in the employment context both in the context of direct discrimination in the case of Seldon.v.Clarkson Wright and Jakes [2012] UKSC 16 and indirect discrimination in the case of Homer.v.Chief Constable of West Yorkshire Police [2012] UKSC These cases both utilise European jurisprudence, as the prohibition on age discrimination in the employment field derives from obligations imposed on the United Kingdom by European Union law. It seems unlikely, however, that the courts will take a radically different approach to the defence in respect of the home grown aspect of age discrimination. 9. It should also be noted that, in addition to these generic defences, there is a long list of specific exceptions or exemptions, running through such diverse areas as insurance contracts and package holidays, prescribed in the Equality Act 2010 and secondary legislation. 2 Potential claims 10. Two immediate areas which are likely to spark litigation on the grounds of age discrimination are in respect of the provision of social care by local authorities and healthcare provision by the National Health Service. Everyone will be familiar with the well-publicised neglect of elderly patients in hospitals: in 2011 the Care Quality Commission found 20% of NHS hospitals inspected were failing to meet basic provisions for nutrition, hydration and dignity of older people. 3 2 ibid 3 4/7

5 11. In addition to failings in individual cases, decisions in relation to budget priorities and policy decisions may also infringe the prohibitions on age discrimination. In addition to the strong duties imposed by section 29, public authorities are also bound by the public sector equality duty imposed by section 149 to have due regard to the need to eliminate age discrimination. Action in the county court or judicial review in the High Court? 12. So, if an individual s right not to be discriminated against on the grounds of age is infringed what can they do? The logical route for individual challenges is the county court. Traditionally, decisions made on the basis of a wider policy would be subject to a judicial review claim in the High Court. Under section 119 of the Equality Act 2010, an extremely wide jurisdiction is granted to the county court: (1) This section applies if a county court or the sheriff finds that there has been a contravention of a provision referred to in section 114(1). (2) The county court has power to grant any remedy which could be granted by the High Court (a) in proceedings in tort; (b) on a claim for judicial review. (4) An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis). (5) Subsection (6) applies if the county court or sheriff (a) finds that a contravention of a provision referred to in section 114(1) is established by virtue of section 19, but (b) is satisfied that the provision, criterion or practice was not applied with the intention of discriminating against the claimant or pursuer. 5/7

6 (6) The county court or sheriff must not make an award of damages unless it first considers whether to make any other disposal. 13. On a literal reading of section 119(2), it follows that a county court has the power to grant one of the prerogative remedies for judicial review: including a mandatory order, or a quashing order. It may also award damages and make declarations or injunctions. Logically it can only make such orders if it is reviewing the legality of a particular policy or decision, in which case a new species of judicial review has been created. One which can be started as of right in the county court. A species of judicial review without the requirement for permission. 14. On that basis, it is hard to see what the benefit of a claim for judicial review would be, particularly as most county court claims of this type are heard by Designated Civil Judges, Circuit Judges who also sit as Deputy High Court Judges, and most judicial review claims outside London are heard by Circuit Judges, also sitting as Deputy High Court Judges. Choice of forum and qualified one way costs shifting 15. What has bedevilled claims for discrimination in the county court over the years have been the two factors of lack of funding and the lack of lawyers with appropriate cross over expertise so that they are familiar with concepts of discrimination law and with running tort claims in the county court. 16. Post April 2013, it should be noted that whilst it will still be possible to fund such claims by way of conditional fee agreements, actions for damages for personal injuries in the county courts (which arguably will include discrimination claims due to the element of compensation for mental distress or injury to feelings they attract) will benefit from qualified one way costs shifting, but, as a matter of policy, judicial review claims will not. In which case, the prudent practitioner, with a costs-averse client, will quietly abandon the High Court in favour of the county court for challenging all decisions and treatment tainted by age discrimination. Andrew Hogan November /7

7 Andrew Hogan Andrew Hogan was called to the Bar in He is a specialist in personal injury, disease, fraudulent claims, costs, employment, planning and environmental and local government claims. andrewhogan@ropewalk.co.uk Disclaimer: The information and any commentary on the law contained in this presentation is provided free of charge for information purposes only. The opinions expressed are those of the writer and do not necessarily represent the view of Ropewalk Chambers as a whole. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by the writer nor by Ropewalk Chambers. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are advised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the information or comment contained within this Article. 7/7