An age-old problem
Date: 28 May 2009
Authors: Jonathan Herring
Issue: Vol 159, Issue 7371
Categories: Features, Family, Community care, Public
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In the US elder law is a well developed field of legal practice and academic study. There is a journal of elder law; textbooks on the subject and many universities will offer it as part of a law degree.
In England, by comparison, the subject of older people and law has received little attention in journals and universities. There is the group Solicitors for the Elderly (www.solicitorsfortheelderly.com/public/index.php), but generally older people seem to fade into the background as far as lawyers are concerned. I recently published a book on law and older people (Older People in Law and Society (OUP, 2009)), and have been surprised that some people think the subject inappropriate and decry the move to establish “law and older people” as an area of study or practice.
Objections
The objections go like this: we should not be treating older people as somehow different to anyone else. A person's legal rights and responsibilities should not differ with age. Indeed by seeking to promote “elder law” one is in danger of perpetuating the myth that older people are particularly frail or vulnerable. Let the law treat us as people, regardless of our age. One law for all, the cry goes up.
I want to suggest a number of reasons why considering the interaction of law and old age is important.
● First, there is the obvious point that there is considerable concern within the government and the media about the changing age demographic. The World Bank has produced a document entitled Averting the Old Age Crisis and the Organisation for Economic Co-operation and Development has produced, Ageing Societies and the Looming Pension Crisis. Whether or not the changing age demographic is actually going to cause huge difficulties is a subject of intense debate. But if the doomsayers are even partly right and there will be an insufficient number of earners to pay for retirees then we will face profound economic difficulties in the near future. The consequences for employment law, benefits law and financial orders on divorce will be significant.
● Second, the argument that everyone should be treated in an equal way has validity when everyone is starting in a roughly equal position. Yet there are many ways in which older people suffer social exclusion within our society. To quote just a sample of indicators: one in five older people in the UK lives below the poverty line; 15% of pensioners are in persistent poverty; one in six of over-65s report feeling lonely often or all the time and 30% are not happy with their quality of life; one million older people spent Christmas Day alone in 2004; four out of 10 older people admitted to hospital are malnourished; six out of ten older people in hospital remain malnourished or become more malnourished while in hospital.There is a woeful lack of provision of public toilets, an issue which particularly affects older people. Seventy-four per cent of older people in one survey—Help the Aged, Research on Age Discrimination, Older People's Accounts of Discrimination, Exclusion and Rejection—complained of a shortage of public facilities.
Misleading
But to quote such statistics is misleading. Older people contribute to society in so many positive ways. Older people provide 46% of all informal volunteering despite making up 18% of the populations. They are significant providers of care: between one and a half and two million of the 5.7 million carers in UK are over 60 and one fifth are 75 or over. The over 65s are more generous in giving to charities than any other age group. The law's treatment of older people must recognise the disadvantages that older people face, but also the benefits they provide.
● Third, there is a growing recognition of the ageism in our society. Ageism is pervasive our society. Just look out for the way older people are used in advertisements and the stereotypes abound. Ageism has never been taken as seriously as racism or sexism. In part because it is often appears benign. It rarely reveals itself in hatred, but rather in infantilisation and assumptions that older people are “doddery, but a dear”. A key issue is age discrimination.
The law on this is fast moving. Of course, we already have the Employment Equality (Age) Regulations 2006 (SI 2006/1031) which protect workers against age discrimination, but only to a limited extent. As is well known it still allows employers to set a retirement age. The Heyday litigation which was heard in the European Court of Justice and is now returning to the British Courts has established that a mandatory retirement age is age discrimination, but may be justified by state interests.
A final decision on whether and when a mandatory retirement age is justifiable age discrimination is keenly awaited.
Pressure
The government is under intense pressure to extend the age discrimination laws beyond the workplace to more general issues surrounding the provision of goods and services. Currently a hotel or restaurant is perfectly entitled to refuse a customer on the basis of their age. The concern is, however, that if age discrimination law is extended to goods and services it may be used by younger people seeking to argue that special benefits to older people, eg reduced price admission to attractions, free bus travel, will be challenged.
Grandparents are significant providers of child care. Forty-five per cent of grandparents are regularly involved in the care of their under two-year-old grandchildren, with the mean level of care ten hours per week. Indeed there must be a considerable number of children whose parenting is more often done by grandparents than parents.
Yet, especially after a divorce grandparents can find themselves sidelined, especially the parents of the non-resident parent. At the moment grandparents can find themselves with no meaningful legal status, with limited legal rights. There are difficult issues around what legal form recognition of the importance of the grandchild relationship should take.
Abuse
The issue of elder abuse is a major social problem. A study in 2008—UK Study of Abuse and Neglect of Older People Prevalence Survey Report—by the Department of Health and Comic Relief, found that found that 2.6% of people aged 66 or over who were living in their own private household reported mistreatment involving a family member, close friend or care worker in the past year. If the sample is an accurate reflection of the wider older population it would mean 227,000 people aged over 66 suffering mistreatment in a given year.
The figures rise if incidents involving neighbours or acquaintances to four per cent or 342,400 people. Yet the legal regime for protecting older people who are suffering abuse is chaotic, when compared with the regime for protection for child protection. Where a local authority wishes to take a child into care there is a clearly set out statutory regime with well established legal principles governing the applications.
Where the local authority wishes to protect an older person from abuse applications could be made under the Mental Capacity Act 2005 if the older person has lost capacity, or under the inherent jurisdiction. But in neither case is there a properly developed set of legal protections and procedures governing such applications.
Most significantly there is no explicit statutory duty on local authority to ensure they protect older people from abuse. Further, everyone knows, the standard of care in many care homes for older people is unacceptable. Legal control of the quality of care is essential if older people are to be treated with the dignity and respect they deserve.
In our society where youth is glorified and the best way of growing old is seen as staying young, there is a danger that the interests of older people are ignored, both in public policy decisions and in the making of legal policy and developing of legal policy. A study of the interaction of law and old age is important for all of us, young or old.
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