C Explanatory memorandum
by Ms Andrea Eder-Gitschthaler, rapporteur
1 Introduction
1. Older persons
Note make
an invaluable contribution to society: they have knowledge and experience
to share, as well as consumer capacity to contribute to the local
economy; they provide unpaid care to children and other relatives,
and they do volunteer work in our communities. They also often face
multiple challenges: poverty, solitude, discrimination, lack of
social protection, digital exclusion, violence and abuse, and lack
of participation in the decisions that concern them.
2. Effective access to rights should be ensured without regard
to the number of persons involved or potential costs. Older persons
should be recognised as independent rights holders rather than simply
as beneficiaries of care. Such a prism is based on false but often
widespread narratives describing older persons as sick, dependent
and passive, which fuel negative stereotypes and ageism – compounded
by the view that their rights are “too expensive” or “unaffordable”
for society.
3. People live longer, in Europe and beyond, and older persons
are becoming the fastest growing segment of the population in the
region of the United Nations Economic Commission for Europe (UNECE).
Note The gendered
nature of ageing implies that women tend to live longer than men.
But rather than focusing on numbers, attention needs to be paid
to the legal and policy decisions that will determine the consequences
of this demographic trend, including its impact on the experiences
of older persons and on their access to rights. This calls for a
comprehensive life course approach, which includes giving due weight
to the rights and well-being of older persons.
4. Age-based discrimination against older persons is a vast topic
and the Parliamentary Assembly has addressed some relevant aspects.
My report focuses on a few areas, including discriminatory laws
and policies; access to justice; digitalisation; access to goods,
services and healthcare; and public participation. A report entitled
“Immigration, one of the answers to Europe’s demographic ageing”
(
Doc. 16072) has been adopted by the Assembly’s Committee on Migration,
Refugees and Displaced Persons and both that and my report are scheduled
for plenary debate in January 2025.
2 Working methods
5. In February 2024, I had an
exchange with Paschal McKeown, Director of the NGO Age Northern
Ireland. On 19 February 2024, I had an online meeting with Claudia
Mahler, UN Independent Expert on the enjoyment of all human rights
by older persons.
6. On 18 March 2024, the Committee on Migration, Refugees and
Displaced Persons held a hearing with the participation of Daris
Lewis Recio, Legal and Policy Officer at the European Network of
Equality Bodies (Equinet), and Nena Georgantzi, Human Rights Manager
at AGE Platform Europe. I thank Equinet and AGE Platform Europe
for helping me identify challenges and good practices, both reflected
in this report.
7. On 2 May 2024, I had an online meeting with Rossalina Latcheva
and Sabine Springer, from the EU’s Fundamental Rights Agency.
8. On 16 May 2024, I met online with Professor Gerard Quinn,
former first Vice-President of the European Committee of Social
Rights and Professor Emeritus at the National University of Ireland.
9. On 21 May 2024, I had an online meeting with Ms Alana Officer,
who led the preparation of the Global Report on Ageism at the World
Health Organization, in 2021.
10. This report includes a number of examples of good practices
in the different sectors covered, which I hope can provide inspiration
and guidance to member States in enhancing the rights of older persons
in their countries.
3 Ageism
against older persons
11. Ageism refers to the stereotypes,
prejudices and/or discrimination of persons or groups based on age. Ageism
against older persons is deeply entrenched and structural, undermining
their rights and their potential to contribute to society. Age and
ageing are usually addressed from four interlinked perspectives:
chronological age (based on the date of birth); biological age (linked
to physical changes); psychological age (referring to mental and
personality changes during the life cycle); and social age (the
change of an individual’s roles and relationships as they age).
These four aspects of ageing can develop at different speeds, and
they are also influenced by the social, historical and cultural
environment.
Note
12. This report addresses both the need to tackle the negative
stereotypes and prejudices that constitute ageism, as well as its
manifestations in age-based discrimination against older persons.
These phenomena are widespread in Europe and beyond. They take many
forms and has an impact on all areas of life, from access to credit
facilities, insurance premiums, healthcare, housing, social protection,
education, access to goods and services (including for example online
only access to public services, and age limits set on certain professions and
activities).
13. Ageism and age-based discrimination also occur against younger
persons, and this is a more widely noted form of ageism in Europe
(Europe is also the only region in the world with data about the
two types of ageism).
Note
14. Stereotypes around older persons are widespread, and evidence
has shown that even four-year-olds already hold very stereotypical
views about older persons. The prevention of ageism must therefore
start in the early years of education. Ageist stereotypes are also
transmitted by the media and through advertising, and these areas
also need to be addressed.
15. Ageism against older persons is evident in many sectors, including
healthcare and social services, the workplace, the media, and the
legal system. Ageism also shapes research and data collection, with
a clear research and data gap on persons aged 75 and above.
16. Thus, the potential for discrimination and bias against older
persons is real and needs to be acknowledged and tackled by public
authorities. As of today, however, the work of the Council of Europe
has not directly addressed the concept of ageism, aside from the
rights-based approach to age established by the European Committee
of Social Rights and its statement on ageism (see paragraph 31 below).
17. The former
Council
of Europe Commissioner for Human Rights called on member States to promote active ageing and
ensure that older persons in Europe can fully enjoy their human
rights, noting that “active ageing” goes beyond labour market participation
to cover opportunities for independent living, adequate access to
healthcare, and participation in society according to one’s needs,
desires, and capacities.
Note
18. According to the World Health Organization (WHO), half the
world’s population has ageist attitudes towards older persons, who
are often falsely portrayed as dependent, frail and less competent.
Note WHO advocates for three strategies
to prevent and respond to ageism: changes in laws and policies;
educational interventions; and intergenerational contacts.
Note WHO is also running a Global
Campaign to Combat Ageism
Note and preparing an “ageism scale”
to measure and understand both the prevalence and the nature of
ageism in each country. This is expected to be available by the
end of 2024 and will consist of a series of questions that countries
can incorporate in their regular national health surveys.
19. A critical difference of ageism, compared with other forms
of discrimination, is how culturally accepted it is. Discrimination
on the ground of age is widespread across the European Union,
Note notably in terms of access to
employment,
Note setting aside of course situations
where restrictions on the grounds of age have been legally established,
subject to certain conditions.
Note The 2021 Opinion of the
European Union Agency for Fundamental Rights (FRA) after 20 years
of implementation of the Racial Equality Directive and the Employment
Equality Directive indicated that “little progress” had been made
since 2014 as regards the prevalence of discrimination in employment
on the grounds of age, religion, disability and sexual orientation,
which “remained high” in most EU countries.
Note
20. FRA also reported “a high prevalence of experiences of age
discrimination in employment for older people”, which “is particularly
high for those aged 50 years and above”. In addition, FRA highlighted
the particular challenges older persons face as regards equal treatment,
from difficulties in accessing healthcare to the digital divide
across generations, which is significant and increases with age
Note (see
sections 7 and 8 below).
21. The progress report on the UN Decade of Healthy Ageing, for
the period 2021-2023, indicates that “more attention should be paid
to the inclusion of older people in data, research and monitoring”.
Note In the European Union,
Eurostat set up a Task Force on Equality and Non-discrimination
Statistics and is considering a dedicated section on equality data
to cover issues such as demography, participation in society, and experiences
of discrimination.
Good practices
22. Serbia’s Commissioner for the
Protection of Equality published a “
Special
report on discrimination against older persons”, providing an overview of age-based discrimination
in this country, where more than 20% of the population is aged 65
and above.
Note The report’s recommendations
include a call to establish a special committee or subcommittee
in the National Assembly in charge of improving the situation of
older persons, or to delegate these issues to existing committees.
23. In 2010, the German Federal Ministry for Family Affairs launched
the programme “New Images of Ageing”, with various awareness-raising
measures. The programme set up a platform on this topic to promote a
broad public debate about the consequences of specific images of
ageing in diverse settings, including the potentially negative consequences.
In 2022, the German Federal Anti-Discrimination Agency commissioned
a study on “
Images
of Ageing and Age Discrimination” to survey ageist attitudes and discriminatory behaviour. The
study called on the public sector, civil society and the private
sector to use more differentiated and complex images of ageing,
as well as to conduct campaigns to raise awareness of ageism and
ageist behavioural trends, and to create spaces for exchanges on
perceived inequalities between age groups and/or generations.
Note
24. Wales and Northern Ireland have both established an independent
Commissioner for Older People and Ageing, which can be a good long-term
solution to represent the rights of older persons in government
and in policy making.
Note
4 Inclusivity
and intersectionality
25. Ageism against older persons
often intersects and interacts with other forms of stereotypes,
prejudice and discrimination, such as ableism (for instance discrimination
and prejudices against persons with disabilities), sexism, racism,
homophobia and transphobia. For instance, older women often face
discrimination resulting from gender inequality and are at greater
risk of social and economic exclusion, as well as physical and psychological
abuse and violence, thereby affecting their enjoyment of human rights.
They are at higher risk of chronic diseases and conditions that
can contribute to disability and are also more likely to be carers
and experience caregiver stress. Ageism compounds other forms of
inequalities, as well as social exclusion and isolation, and therefore
an intersectional approach is needed.
26. For instance, the 2019 survey carried out by FRA about how
LGBTI persons in Europe experience their human rights, included
considerations of LGBTI persons above 55 years of age. In 2023,
ILGA Europe and AGE Platform Europe published a briefing
Note that analysed the FRA survey
data, recommending that research and data collection on LGBTI people
should include those living in care settings and those who are digitally excluded.
27. I believe that an inclusive approach is essential to protecting
rights effectively. I have adopted an intersectional approach to
take account of the different experiences and challenges that older
women and men face, in all their diversity.
5 Legal
and policy frameworks to combat age-based discrimination against
older persons
28. It is shocking to note that
age is the only protected characteristic for which a difference
in treatment can be objectively justified (for example, in the fields
of employment and access to financial services). This sets age apart
from other protected characteristics and results in “devaluing”
age as a protected ground, and in making age-based discrimination
accepted and normalised. Objectively justifying direct age discrimination
leads it to continue and to get legitimised.
29. There is no specific international legal instrument aimed
to dispel prejudice and discrimination against older persons. In
addition, most international human rights instruments, including
the European Convention on Human Rights (ETS No. 5, the “Convention”),
do not explicitly list age as a prohibited ground for discrimination.
5.1 Council
of Europe
30. Indeed, Article 14 of the Convention
on the prohibition of discrimination does not list age as a ground
for discrimination, but the case law
Note of the European Court of Human
Rights has recognised that age constitutes “other status” for the
purposes of that anti-discrimination provision. However, the Court
has not yet indicated that age discrimination should be equated
with other grounds for discrimination.
Note This is also reflected in the way
in which age-based discrimination legislation has developed, treating
it as a discrimination ground of “lesser importance”, which contributes
to reinforce the stereotype of the “lesser value” of older persons
in our societies.
31. Other relevant Council of Europe standards include the European
Social Charter (ETS No. 35), revised in 1996 (ETS No. 163) – and
in particular its Article 23 “The right of elderly persons to social
protection”.
Note The European
Committee of Social Rights (ECSR) has interpreted Article 23 over
the years, highlighting shortcomings in the protection of the rights
of older persons in Council of Europe member States. The ECSR has
called for equality and anti-discrimination legislation targeting
older persons to cover sectors such as access to goods, facilities
and services, including insurance and banking products. The ECSR
considered that Parties “must take a wide range of measures to combat
ageism in society”, in addition to adopting legislation prohibiting
discrimination on grounds of age.
Note
32. The Charter also invites Parties to provide for a procedure
for “assisted decision making”. This means that older persons cannot
be assumed to be incapable of taking their own decisions just because
they have a particular medical condition, a disability, or lack
legal capacity. Article 23 also requires Parties to combat the abuse
Note of older persons (at
home or in care facilities), including through awareness raising
and legislative or other measures.
33. In 2021, the ECSR examined the implementation of Article 23
of the Charter in 15 countries, and it considered that 12 of them
were not in conformity with the requirements of this provision,
mainly due to the lack of legislation prohibiting discrimination
on grounds of age outside employment, and the lack of adequate resources
for older persons (pensions and social assistance). The ECSR also
examined measures to prevent the abuse of older persons; to provide
housing suited to their needs and state of health; to provide them
with adequate healthcare and related services; to guarantee appropriate
support to those living in institutions, while respecting their
privacy; and to ensure participation of older persons in decisions
concerning their living conditions in institutions.
35. As regards soft-law instruments of the Council of Europe,
other than the Assembly’s resolutions referred to in the draft resolution,
the Committee of Ministers adopted Recommendation CM/Rec(2014)2
on the promotion of human rights of older persons. This recommendation
includes guidance and good practices on the following issues: non-discrimination;
autonomy and participation; protection from violence and abuse; social
protection and employment; medical, residential, institutional and
palliative care; and access to justice. In March 2019, the Committee
of Ministers took note of a report on the implementation of this recommendation,
Note and agreed to
review its implementation five years later, for instance by March
2024, which has not yet taken place.
5.2 United
Nations
36. Relevant policy instruments
adopted within the United Nations include the Principles for Older
Persons and the Madrid International Plan of Action on Ageing, as
well as the Regional Implementation Strategy for Europe. In 2013,
the Human Rights Council agreed to establish an Independent Expert
on the enjoyment of all human rights by older persons. However,
as the Office of the United Nations High Commissioner for Human Rights
noted, not including age as a ground for prohibited discrimination
in most United Nations human rights treaties “continues to send
the message that protection against older age discrimination is
not a priority in the human rights framework”.
Note
37. As changes in laws and policies is one of the three strategies
that WHO’s Global Report on Ageism advocates for to prevent and
respond to ageism, an initiative to develop guidance for national
laws to prevent and combat age-based discrimination is under preparation,
in co-operation with the Office of the High Commissioner for Human
Rights. An UN report indicates an increase of 23% in national legislation
and enforcement of strategies against age-based discrimination in
the last three years, from 60% of the 109 reporting countries in
2020, to over 82% in 2022-2023.
Note
38. An Open-Ended Working Group on Ageing (OEWG) “for the purpose
of strengthening the protection of the human rights of older persons”
was set up in 2011, tasked with analysing the international framework
and identifying possible gaps and remedies. In May 2024, the OEWG
concluded its mandate with the adoption of a number of recommendations,
including the option of negotiating a new UN convention on the human
rights of older persons.
39. In a
UNECE
Ministerial Declaration adopted in 2022, the representatives of European States recognised the
importance of population ageing as a global trend that needs to
be addressed through international and regional frameworks and initiatives.
They committed to take concrete measures to promote active and healthy ageing
throughout life; to ensure access to long-term care and support
for carers and families; and to mainstream ageing in all policies
to create an inclusive society for all ages.
40. Other regions have adopted treaties on the rights of older
persons, while they participate in global talks about a new “thematic”
UN treaty: the Inter-American Convention on Protecting the Human
Rights of Older Persons was adopted in 2015 by the Organization
of American States, while the African Union adopted in 2016 a Protocol
to the African Charter on Human and Peoples’ Rights, on the Rights
of Older Persons in Africa.
41. I believe that the Council of Europe should consider following
a similar path, examining the added value of a regional instrument
to protect the human rights of older persons, reflecting on and
building upon the quasi- jurisprudence on the European Social Charter,
Note developed by the ECSR. Our
Organisation should also actively support, follow and participate
in the negotiations under way in the United Nations Human Rights Council
concerning a global treaty on the rights of older persons.
5.3 European
Union
42. The Charter of Fundamental
Rights of the European Union includes provisions on non-discrimination (Article
21) and the rights of the elderly (Article 25). In addition, the
European Union and its member States are required to respect fundamental
rights when they implement EU law (Article 51 of the Charter). Article
10 of the Treaty on the Functioning of the European Union (TFEU)
states that, “in defining and implementing its policies and activities,
the Union shall aim to combat discrimination based on sex, racial
or ethnic origin, religion or belief, disability, age or sexual
orientation”.
43. The
2000
Employment Equality Directive introduced the criterion of age as a prohibited ground
for discrimination in employment and occupation. Other areas relevant
to older persons, including social protection, healthcare, and access
to goods and services, are not yet covered by EU legislation on
non-discrimination based on age. A proposed directive on equal treatment
Note (also
called “the Horizontal Directive”) from 2008 remains under discussion
after 16 years, as it requires the unanimous agreement of the EU-27.
The proposed directive aims to extend protection against discrimination
on the grounds of religion or belief, disability, age and sexual
orientation in areas other than employment, including social protection,
education and access to goods and services.
44. In 2021, the European Commission published a “
Green
Paper on Ageing – Fostering solidarity and responsibility between
generations”, to open a debate on the impact of ageing on all citizens
and on society as a whole. This policy document called for the promotion
of healthy and active ageing, improving the resilience of health
and care systems, modernising social protection and fostering legal
migration and integration as part of a policy mix “to [prevent]
or [limit] the negative consequences of ageing”. The European Commission
and EU member States promote exchanges of practices on age equality
and on how to combat ageism within the European Union’s High Level
Group on Non-Discrimination, Equality and Diversity, including the
preparation of a paper on age.
Note
5.4 Domestic
legislation
45. National laws across Europe
provide different levels of protection against age-based discrimination. An example
is the UK’s Equality Act 2010 (Age Exceptions) Order 2012, which
introduced further legislative protection for older persons, prohibiting
unjustifiable age discrimination when accessing goods, facilities
or services, and in the exercise of public functions. However, the
Order includes several exceptions, where different treatment on
the basis of age is considered ‘justifiable, harmless or, on balance,
beneficial’. Despite room for improvement, the Equality Act does
provide a degree of protection of older persons’ rights in England, Scotland
and Wales which does not, however, apply in Northern Ireland, where
older persons have reported ageism and discrimination.
Note
5.5 Good
practices
46. In the Czechia, Slovenia and
Sweden, there is legislation prohibiting age-based discrimination
not only in employment but also in other areas of life.
Note In
Bulgaria, the Protection against Discrimination Act prohibits direct
and indirect discrimination based on age. Spain’s Law for Equal
Treatment and Non-Discrimination, adopted in July 2022, explicitly
includes age as a protected ground.
47. In March 2022, the Georgian Young Lawyers’ Association (GYLA)
filed a lawsuit with the Constitutional Court, challenging the law
that established the retirement age of academic staff at State higher
education institutions at 65. It argued that the contested legal
provisions were discriminatory and therefore unconstitutional. GYLA
referred to a previous decision by the Constitutional Court, of
February 2022, which had declared unconstitutional the legal provisions
establishing that a person over the age of 70 could not be elected
president or vice-president of the Georgian Academy of Sciences.
The Court held that “the fact that in general the accompanying result
of ageing is the diminishment of physical endurance of a person
and the decline of certain skills cannot by itself become a sufficient
ground for imposing any age-related blank restrictions”.
Note
48. In May 2023, Austria adopted a law that removed age limits
to access bank credits.
6 Access
to justice
49. Access to justice for victims
is essential for the good implementation of non-discrimination legislation
at the national level. Most countries offer a combination of judicial
(civil, administrative, labour, etc.) and non-judicial (for instance
ombudspersons, human rights institutions, inspectorates, etc.) proceedings
for these cases, including mediation or conciliation proceedings.
Sanctions should be proportionate and dissuasive in order to have
a preventive effect; financial compensation for pecuniary and non-pecuniary
damages in cases of discrimination varies greatly across countries.
50. The volume of case law on discrimination remains relatively
low in most countries, even if the number of complaints submitted
to courts or equality bodies has been gradually increasing. In addition,
litigation in cases of age-based discrimination against older persons
is not frequent, as there are a number of barriers to effective access
to justice, including lack of knowledge of rights and remedies,
lack of financial means, lack of adequate legal representation,
unavailability and inaccessibility of free legal aid, etc. The right
to access justice is therefore closely connected with the effective
exercise of the rights to information, education and mobility.
51. The low level of litigation may itself be a deterrent for
victims of discrimination, and there is little media reporting on
discrimination cases on the grounds of age or disability, compared
to some high-profile cases involving racial, ethnic or religious
discrimination.
Note
52. On 19 December 2023, the UN General Assembly adopted Resolution
A/RES/78/227, entitled “Equal access to justice for all,” with a
focus on criminal justice systems and ensuring equal access to justice
for all, including for persons facing aged based discrimination
motivated by age, such as older persons.
53. National human rights institutions and equality bodies have
an important role to play in raising awareness of the negative impact
of ageism, as well as in supporting strategic litigation at the
national level to promote the rights of older persons. The mandate
of many equality bodies cover all or most grounds for discrimination,
but gaps remain as regards age-based discrimination. This should
be addressed so that all equality bodies can act and bring complaints
in cases of age-based discrimination against older persons. In May
2024, the Council of the European Union adopted two new Directives
regulating the role and independence of equality bodies in matters
of employment and occupation and setting standards for equality bodies
covering other grounds (including age) and fields (such as social
security and access to and supply of goods and services).
54. The report by Serbia’s Commissioner for the Protection of
Equality (referred to in chapter 3 above) shows that age is one
of the top five personal characteristics generating discrimination
against, according to the number of complaints, and the second most
frequent ground for discrimination in 2020, with almost 15% of complaints.
Discrimination against older persons is present in many areas of
life, including proceedings before public authorities; provision
of public services; social protection and healthcare; pension and
disability insurance; labour and employment; property rights; housing;
education; culture and sports; public information and media.
55. Similarly, the UK’s Equality and Human Rights Commission’s
prejudice barometer reported more experience of prejudice based
on age than on any other characteristic. It also showed that there
were cases where age discrimination was seen as not being as serious
as some other forms of discrimination. At the same time, fewer cases
are brought on the ground of age than on most other protected characteristics
(age discrimination cases represent only about 2% to 4% of those
brought to this commission). Part of the explanation may be that
age discrimination is so socially acceptable that those who suffer
from it, internalise it.
56. The annual report of the Ombudswoman of the Republic of Croatia also
includes her work on age equality, including the handling of complaints
from victims of age-based discrimination, in particular concerning social
security, living conditions (home care and institutions for long-term
care), violence, and contracts for lifelong maintenance. Croatia’s
Ombudswoman co-operates with the Ministry of Social Affairs to establish systematic
data collection on harassment and abuse of older persons.
Note
57. The Office of the Portuguese Ombudsperson has reported that
they frequently receive complaints on the rights of older persons,
and that many are addressed to them through the Senior Citizens
Helpline, which provides information and support to older persons.
58. On a separate topic, the European Court of Human Rights, in
a landmark case in April 2024, ruled in favour of a Swiss association
of older women who had brought a complaint against their country’s
measures to limit greenhouse gases, claiming that they were insufficient
to curb climate change and its negative effects on their health.
The Court recognised the need to promote intergenerational burden
sharing in relation to climate change, as a common concern of humankind.
It also concluded that domestic courts had failed to consider the
compelling scientific evidence about climate change and its consequences
on the health of older women, and had not taken their complaints
seriously.
59. The Council of Europe has long worked on the need to address
stereotypes, bias and discrimination against women in their quest
for
equal access to justice, compounded in the case of older women, as illustrated by
the above-mentioned experience of the older Swiss women before domestic
courts. This takes place in all types of legal proceedings, from
gender-based violence
Note to compensation claims,
family law, etc.
7 Digitalisation
and its impact on accessing goods and services
61. An important barrier to the enjoyment by older persons of
their human rights is the increasing digitalisation of public services,
compounded by the growing use of artificial intelligence systems
and automated or semi-automated decision making by public authorities,
for example as regards welfare support and social services. Shortcomings
in access to rights, due to the dematerialisation of public services,
were highlighted in the Assembly
Resolution 2510 (2023) “Closing the digital divide: promoting equal access
to digital technologies”.
62. Older persons need easy access to information about the services
and facilities available to them: from home-help services and day
centres to housing services and healthcare, as well as leisure and
educational facilities.
63. Age-based rules, including those applied by private companies,
may likewise arbitrarily restrict older persons’ access to rights.
For example, insurance companies can refuse to cover the travel
of persons over a certain age, regardless of their state of health,
and often apply higher car insurance premiums after a certain age,
regardless of the person’s individual driving history. Access to
credit facilities is also often conditioned by age, making it much
harder or more expensive – or even impossible – for older persons
to obtain loans, solely on the basis of their age. Denying older
customers access to certain financial services, or subjecting them
to additional stricter criteria such as premium charges, remains
a problem in many countries, concerning all kinds of loans (mortgage
loans, consumer credits), as well as access to credit cards and
other financial products.
64. When examining the application of Article 23 of the European
Social Charter, which covers the right to certain services and facilities
for older persons, the ECSR looks both at the services and facilities
as such and the information provided about them. It examines the
existence, extent and cost of house help services; community-based
services; specialised day care provision for persons with dementia
and related illnesses, including long-term care, in particular those
enabling them to remain active members of their community and to
remain in their home. It also examines the existence of information,
training and respite care services for families caring for older
persons, in particular highly dependent persons; as well as cultural,
leisure and educational facilities available to older persons.
Note The ECSR has highlighted that
many services (and information about services) are increasingly
accessible online. Digitalisation can provide opportunities for
older persons, but may also be a barrier to their access to services.
Measures are needed to improve the digital skills of older persons,
ensure the accessibility of digital services for older persons,
and maintain non-digital services.
65. In the European Union, Protocol No. 26 to the TFEU recognises
the importance and diversity of services of general interest. EU
countries can decide on the modalities of their delivery deliver
while ensuring a high level of quality, safety and affordability,
as well as equal treatment, universal access and the protection
of user rights. This means that it should be possible to have offline
access to public services.
66. The October 2020 Conclusions of the Council of the European
Union on “
Human
rights, Participation and Well-Being of Older Persons in the Era
of Digitalisation” underlined the need to maintain non-digital access to
public services and called for respect for older persons’ rights
and needs. The Council of the European Union asked FRA to explore
the impact of digitalisation on the rights, participation and well-being
of older persons. The FRA collected information on the legislation
and policies of EU member States, as well as statistical evidence
from Eurostat, and published a report in September 2023.
Note
67. The FRA report reflects that national laws and policies on
digitalisation and access to public services by older persons do
not apply a human rights perspective, with only four EU member States
having legislation to protect the rights of older persons to equal
access to digitalised public services. Only nine EU countries recognise
the importance of keeping offline options to access public services.
In addition, the FRA report reflects that there is little evidence
of national initiatives to provide digital skills training for older
persons or to offer financial support for reliable internet access
or up-to-date devices and software. It also found a lack of information
and disaggregated data for persons aged 75 and older, which makes
it impossible to evaluate and monitor the impact and efficiency
of laws and policies in this area, nor to assess the impact of the
ongoing digital transition on access for older persons.
68. In September 2022, the European Union adopted the European
Care Strategy, setting an agenda to improve the situation for both
carers and care receivers, and aiming to ensure quality, affordable
and accessible care services for all, regardless of age, gender
or social status. Care services should be person-centred to empower
people to maintain their autonomy and live in dignity, exercise
their human rights, and to prevent poverty and social exclusion,
which is not a reality for many older persons.
69. In particular, insurance policies can clash with anti-discrimination
laws when the risk is determined on the basis of a protected criterion
such as age. For certain types of insurance contracts (car, travel),
insurance companies consider that the risk is directly related to
the age of the assured. Equality bodies
Note have
noted similar concerns as those raised with financial services,
as insurance products are refused on the basis of (stereotypical)
assumptions about the implications of (older) age of the applicant
and without an individual assessment. Furthermore, in cases where
the insurance contract is not refused on age grounds, an older age can
significantly increase the cost of purchasing an insurance product.
The equality bodies of Latvia, Germany and Belgium noted that travel
or car insurance were refused only on the basis of age and without
taking into account the person’s individual situation.
Good practicesNote
70. The Polish Commissioner for
Human Rights highlighted the abuse of older persons as regards financial services.
A study showed that bank employees and sellers of other goods or
services often try to take advantage of older persons, profiting
from their lack of awareness and knowledge of financial products.
This situation leads to unfavourable banking contracts or transactions
related to investment or loans. The irresponsible conduct of banks
and other financial institutions, including hiding important information
about the costs and possible risks of an investment can lead to
a credit spiral and/or very high financial transaction costs.
71. The Czech equality body conducted research on access to banking
and financial goods and services through a questionnaire, situation
testing and legal analysis. One third of the surveyed entities set
age limits for providing travel insurance and mortgage loans. The
research concluded that the least accessible services to older persons
were life insurance, accident insurance and payment protection insurance.
72. Germany’s Federal Anti-Discrimination Agency funded a research
project entitled “Age discrimination in lending”, which found that
the country’s General Equal Treatment Act did not offer sufficient
protection against age-related disadvantages when granting loans,
and that there were age-related disadvantages in lending practices,
including loans refused due to age, and difficult access for older
persons to loans due to increasing digitalisation. The research
report was published in September 2023 and a reform of the General
Equal Treatment Act was announced by the government to improve protection
against discrimination.
73. The National Centre for Human Rights of the Slovak Republic
commissioned research on access to social services in rural areas,
which is a critical issue for older persons living there.
74. The Office of Croatia’s Ombudswoman published a report on
the rights of older persons, covering palliative care, anti-discrimination,
long-term care facilities.
75. The UK’s Equality and Human Rights Commission has worked on
older persons and digital exclusion; labour market access; an intersectional
approach (LGBTIQ persons); and menopause and workplace recognition.
8 Access
to healthcare
76. The health of older persons
can be adversely affected by medical professionals, dismissing or minimising
health concerns as being merely due to age. A report entitled “
Inequalities
and multiple discrimination in access to and quality of healthcare”, published by FRA in 2013, reflected that experiences
of discrimination and multiple discrimination in healthcare were
often perceived to be motivated by ethnicity, age, sex and disability,
and that one of the groups that stood out more clearly as being
at risk of intersectional discrimination in access to healthcare
were older persons.
77. As regards the right to adequate healthcare for older persons,
Article 23 of the Social Charter requires healthcare programmes
and services (in particular primary healthcare services including
domiciliary nursing/healthcare services) specifically aimed at older
persons, as well as guidelines on healthcare for older persons. In
addition, mental health programmes for older persons with psychological
problems should also be available. The ECSR has emphasised the importance
of moving away from institutionalisation towards community-based care
and independent living, and of adopting assisted decision-making
procedures.
78. Equal treatment under the European Social Charter calls for
the recognition of the equal value of older persons’ lives. However,
as we saw at the height of the Covid-19 pandemic, older persons
were often refused access to life-saving healthcare based only on
their age, without taking into account their state of health or prognosis,
and many decisions were taken about their “quality of life” or the
“worth” of their lives.
79. In 2021, the ECSR noted the devasting effects of Covid-19
on the rights of older persons, in particular on their right to
the protection of health, in many cases with consequences for their
rights to autonomy and to make their own decisions and life choices,
their right to continue to live in the community with adequate and resilient
support enabling them to do so, as well as their right to equal
treatment as regards the allocation of healthcare services including
life-saving treatments (for instance triage and ventilators).
80. The former Council of Europe Commissioner for Human Rights
also stressed the need for a comprehensive and human rights-based
approach in the design and delivery of long-term care, grounded
in safeguarding dignity and self-determination.
Note Loss
of autonomy is a major issue for many older persons, as many move
into institutional settings, often contrary to their wishes.
Note In May 2021, the French Défenseure
des droits published a report on the fundamental rights of older
persons living in nursing and retirement homes for dependent older
persons, based on 900 complaints of violations of these persons’
rights received over a six-year period.
Note A
follow-up report, published 18 months later, found that while there
had been an increase in collective awareness of the risks to dignity
and human rights in these settings, the high number of complaints that
had continued to be received confirmed the systemic nature of abuse
in such settings.
Note
81. National policies should also stress the central role of legal
capacity, and the need for supportive decision-making mechanisms
to increase the legal capacity of older persons and to maintain
their autonomy. Other key aspects are the need to address abuse
against older persons, and to provide an adequate framework to support
informal and family-based elder care. Solidarity and respect across
generations should be encouraged, both at the level of private and
public institutions.
82. In November 2020, WHO and its partners published the first
report on the UN Decade of Healthy Ageing (2021-2030),
Note which charts efforts to improve
the lives of older persons, capturing the impact of major challenges
such as the Covid-19 pandemic, during which over 80% of deaths were
among over 60-year-olds. WHO has also identified as a priority
the need for further research on the links between ageism and abuse
of older persons in clinical care and long-term care.
83. The Covid-19 pandemic had devastating effects on the social
rights of older persons in institutions, where many were cut off
from their friends and relatives or were allowed very limited contacts
with them. In addition, lockdowns and other restrictions severely
affected older persons living in their own homes, as social interactions
were also eliminated. The situation of care homes in the Madrid
region and Covid-related deaths of residents in the first months
of the pandemic in 2020 is reflected in a report published in March
2024 by a Spanish Citizens Commission for Truth in the Long-Term
Care Homes of Madrid. According to this report,
Note the lives of more than 4 000 care
home residents in Madrid could have been saved if they had been
treated in hospitals.
85. The Portuguese Ombudsperson reported that most of the complaints
received about the right to health are related to the accessibility
and availability of the national health service, including difficulties
in accessing medical assistance at different levels of care. The
Senior Citizens Helpline received many requests concerning access
to mental health services and follow up. In 2019, the UK’s Royal
College of Psychiatrists published a study showing how ageism exists
in access to mental health services, finding that older persons
were not getting the mental health support that they needed because
of ageist views.
86. A Council of Europe report entitled “
The
right to the highest attainable standard of health and access to healthcare
for LGBTI people in Europe”, published in September 2024,
Note found
that LGBTI people in later life report poorer health than the general
population, with worse experiences of care, particularly cancer,
palliative/end-of-life care, dementia and the provision of mental
healthcare. In addition, older LGBTI people are at a high risk of
social isolation due to smaller family networks and increased care
needs. The report includes a section with “promising practices”
Note in
relation to voluntary/community-based interventions to provide care
and support to older LGBTI people (in the Netherlands, Czechia,
Spain and Greece), as well as regarding high quality and culturally
competent health and social care for older LGBTI people (in Germany,
the Netherlands, Belgium, UK).
87. The increasing use of artificial intelligence systems in health
and social care for older persons can also be beneficial by helping
to identify risks and enabling older persons to meet their own needs.
However, in order for this to work, WHO
Note calls for
implicit and explicit bias and ageism to be eliminated in the design, development,
use and evaluations of AI technologies. This also requires the full
involvement of older persons in the processes, systems and services
that affect them, as it is addressed in the next chapter.
Good practicesNote
88. As regards medical screening,
age-based segmentation is often practised, raising questions about compatibility
with anti-discrimination laws. The equality body of the Slovak Republic
recommended the reform of a regulation that limited the right to
free annual breast cancer screening, through a preventive mammogram examination,
to women from 40 to 69 years of age. The equality body recommended
to extend the age cohorts entitled to the screening based on the
fact that the incidence of breast cancer increases in all age groups
and culminates between the age of 75 and 79 years.
89. As regards reproductive rights, the equality body of Bulgaria
asked the Ministry of Health to repeal a discriminatory provision
fixing an upper limit of 45 years of age for women to undergo artificial
insemination with processed spermatozoa by their spouse. The equality
body also instructed the Public Council on Patients' Rights to analyse
the law and its application to protect the right of women to equal
treatment and the exercise of reproductive rights without discrimination.
90. The digitalisation of healthcare systems can also impact accessibility
for older persons. The Equality Body of Slovenia carried out a survey
that identified many challenges and gaps in access to healthcare.
91. In 2022, the Ombudswoman of the Republic of Croatia focused
on the protection of older persons in relation to long-term care
contracts, which entail the transfer of property after the contract
is concluded, with the subsequent risk of abuse and increased vulnerability.
The equality body advocated for the need to improve the legal framework
to prevent the abuse of these contracts and to protect older persons.
92. In Austria, access to financial support for care is based
on an individual assessment of the person’s needs, and is not linked
to their income. There are seven levels of support for care, which
is re-calculated every year, and the decision by the authorities
can be challenged in an administrative court, without a fee.
9 Participation
of older persons in the decisions that concern them
93. An important feature of ageism
against older persons is that it is not only reflected in actions,
but also in inaction, by omitting to consider the needs and voices
of older persons. Ageism may be internalised as we grow older, which
can be self-limiting.
94. A demographic shift towards an older population is not simply
a topic for debate as regards sustaining growth and the welfare
State: it also raises questions about the model of society we want
to live in, and how we interact across generations. It calls for
efforts to ensure that everyone can actively participate and get involved
in these discussions, both younger and older. It calls for both
short-term and long-term solutions.
95. Article 23 of the European Social Charter remains a key instrument
to promote the social rights of older persons, which implies the
need to ensure their full participation in society. The ECSR applied
this provision dynamically, addressing for example the central role
of legal capacity and the need for supportive decision-making mechanisms
to increase legal capacity and autonomy in old age. The ECSR, moreover,
highlighted that the active participation of older persons should
be a main consideration in developing policies to combat ageism.
96. Regarding long-term care, a key challenge to be addressed
is to ensure that older persons have a choice as to where they would
like to receive support (at home or in a residential facility).
There is a need to raise older persons’ awareness of their right
to take decisions about their own life and the right to independent
living in older age. A new approach is needed to restore the autonomy
and legal capacity of older persons, as the focus of policy shifts
away from mechanisms that “protect” persons with cognitive disabilities
by silencing their voice through guardianship, towards the search
for new tools to support autonomy and the restoration of legal capacity.
Note
97. Under the Citizens, Equality, Rights and Values (CERV) Programme,
the European Union provides funding to support equal participation
and autonomy of older persons through representative organisations. Older
persons are also the specific focus of several CERV-funded projects,
such as a project to promote the participation of senior citizens
in the civic and democratic life of the European Union through the
organisation of local events in several member States. Under the
Networks of Towns 2024, other projects seek to increase the awareness,
knowledge, and interest of EU citizens and decision makers on ageism
and the position of older persons, and to involve older persons
in local decision making, including through intergenerational dialogue.
98. In autumn 2023 and spring 2024, the Women and Equalities Committee
of the UK Parliament gathered written and oral evidence as part
of an inquiry on “The rights of older people”, launched to examine
whether ageist stereotyping and discrimination, are preventing older
persons from fully participating in society. The committee will
consider the views of older persons and expert witnesses in its
work.
10 Conclusions
99. The current approach towards
older persons needs to be reviewed and move towards developing strategies
and/or action plans based on the human rights of older women and
men in all their diversity, taking into account their specific needs
and circumstances, and always with their active participation and
involvement.
100. A change in the portrayal of older persons – in all their
diversity – is needed, as a stereotyped image is still used too
often, which perpetuates prejudice and discrimination against them.
We clearly need a paradigm change to address and combat the ageism
suffered by older persons in our member States. And we need to put
this work in the right framework if we are to equally uphold their
human rights, following a whole life-course comprehensive approach,
aiming at active and healthy aging policies, and bearing in mind
the diversity of situations and needs among older persons.
101. As political leaders, we have a responsibility to guarantee
everyone’s enjoyment of their human rights, regardless of age and
without any discrimination, including intersectional considerations.
We have a responsibility to promote a society that respects and
cares for all its members.
102. My report aims to raise awareness of the discrimination against
older persons, which remains pervasive and affects many persons
in our member States, as well as about its root causes. We need
to take action and raise political commitment at national, regional
and international levels to ensure the full enjoyment of the human
rights, dignity and well-being of older persons.
