The DH has published guidance, entitled Implementing a ban on age discrimination in the NHS - making effective, appropriate decisions, to coincide with the coming into force of the new provisions banning discrimination on the ground of age in the provision of goods and services. The guidance, developed by NHS Employers and others, is specifically aimed at those who plan, commission or provide services, whether in the NHS, voluntary or private sectors.

From 1 October 2012, the Equality Act 2010 makes it unlawful for any organisation providing a public or private service to discriminate against, harass or victimise an adult (ie, someone over 18) because of their age. People may still be treated on an age-related basis where this is beneficial to them or can be objectively justified (ie, the behaviour in question is a proportionate means of achieving a legitimate aim), but age alone – and the stereotypical assumptions associated therewith – must not be used as a substitute for the proper assessment of individual need.

The guidance contains a useful section on commissioning or providing services based on age. They key questions to ask are:

  • What are you trying to achieve? Is the aim legitimate?
  • Why are you using age as a criterion? If it is simply to limit the number of potential service users, this is unacceptable
  • What age criterion do you propose to use and how do you propose to use it?
  • Do you have evidence to support your approach?
  • Is what you propose a useful, suitable or effective means of achieving your aim?
  • Are there other ways of achieving your aim, which would impact less?
  • Will what you propose have an excessive or disproportionate effect on the group in question?
  • Can your policy or practice be justified as positive action?

A person will be protected when requesting, and whilst in the course of being provided with, goods, facilities and services. Someone who perceives that they have been unfairly discriminated against because of their age will be able to take the body or person concerned to court and may be awarded compensation.