Combating Ageism in Insurance: Equality Law Perspectives
Combating ageism attitudes in health and age-related insurance through equality law perspectives is crucial in ensuring fair treatment for all individuals. Directives such as Council Directive 2004/113/EC and Equal Status Act 2000 aim to prevent discrimination based on various factors including age, ensuring equal access to goods and services. Actuarial factors, as outlined in these directives, play a significant role in ensuring fair premiums and benefits for all individuals, regardless of gender or age. Proposals for further directives emphasize equal treatment irrespective of religion, disability, age, or sexual orientation. The commitment to combat ageism and promote equality in insurance and services is a vital aspect of progressive legislation.
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SAY NO TO AGEISM ATTITUDES TO HEALTH AND AGE IN INSURANCE: SOME EQUALITY LAW PERSPECTIVES Mary Honan BL
Council Directive 2004/113/EC of 13 December 2004 Article 1 Purpose The purpose of this Directive is to lay down a framework for combating discrimination based on sex in access to and supply of goods and services, with a view to putting into effect in the Member States the principle of equal treatment between men and women.
Article 5 Actuarial factors 1. Member States shall ensure that in all new contracts concluded after 21 December 2007 at the latest, the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance and related financial services shall not result in differences in individuals' premiums and benefits. 2. Notwithstanding paragraph 1, Member States may decide before 21 December 2007 to permit proportionate differences in individuals' premiums and benefits where the use of sex is a determining factor These Member States shall review their decision five years after 21 December 2007
Proposalfor a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation - 2 July 2008 Article 1: Purpose The main objective of the directive is to combat discrimination based on religion or belief, disability, age or sexual orientation and to put into effect the principle of equal treatment, outside the field of employment. Scope: Goods and services, education, housing, etc.
Equal Status Act 2000 The Equal Status Acts 2000-2011 prohibit discrimination in the provision of goods and services, access to education, accommodation, housing, etc. Nine prohibited grounds: Gender Civil status Family status Sexual orientation Religious belief Age Disability Race colour, nationality, ethnic or national origins Membership of the Traveller community
Goods and services: section 5(1) 5. (1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.
Exemption re actuarial data etc. Section 5 (2)(d ): differences in the treatment of persons in relation to annuities, pensions, insurance policies or any other matters related to the assessment of risk where the treatment (i) is effected by reference to (I) actuarial or statistical data obtained from a source on which it is reasonable to rely, or (II) other relevant underwriting or commercial factors, and (ii) is reasonable having regard to the data or other relevant factors,
Ross v Royal & Sun Alliance Aged 77 Refused quotation: told did not quote for new business to over-70s Defence = treatment within exemption in section 5(2)(d): Analysis of age re accidents larger claims at extreme ends of age spectrum Statistical data indicated costs accelerated with age in over-70s Volatile sector of market Insurance to older clients unprofitable
Exemption? Relevant questions for Equality Tribunal: Was Mr Ross treatment effected by - actuarial or statistical data? source on which it was reasonable to rely? or other underwriting or commercial factors? And was the treatment/policy reasonable having regard to the data? Was it reasonable having regard to other relevant factors?
Conclusions of Tribunal Actuarial or statistical data? Yes but From a source on which it was reasonable to rely? No. Source and integrity of data called into question Some data no longer available black holes in data More recent software package showed different outcomes Other relevant underwriting or commercial factors? Yes but ignored many other relevant factors. And was the treatment reasonable having regard to the data? No. Was it reasonable having regard to other relevant factors? No.
Tribunal Other relevant factors ignored, e.g.: Health of insurance seeker Driving experience Claims history Condition/age of car Declined Cases Agreement Exposure to over-70s market damage business? No evidence that there was a large market of floating over-70s customers seeking to change insurer. In fact, evidence was to contrary.
Summary of Tribunal decision Unable to provide full details of data relied on Not reasonable to rely on source of data Policy was not reasonable taking account of data or other relevant factors Across the board policy: did not address the individual request
Exemption allowed Complainant v Life Assurance Provider S2009-033 [Life insurance cover for mortgage/disability] Medical history of depression and alcohol/cannabis use - presented claimant as greater risk of further suicide attempts/self-harm. Insurer took into account each individual s risk profile e.g. medical history, hobbies, alcohol use, smoking, etc. Insurer had taken considered approach - and applied it in transparent manner. Not a blanket policy of excluding persons with mental health difficulties including self-harm/suicidal tendencies.
Exemption allowed Complainant v Life Assurance Provider S2011-064 [Life assurance/disability] Actuarial/statistical data re risk factors for life expectancy of persons with depression and alcohol dependency syndrome. Reliable medical research. Risks so high as to make it untenable to provide cover.
Exemption allowed Mr A v Life Assurance Company - S2011-008 [Application for extension of income protection policy/disability] Top-up of policy to E200,000 p.a. refused Diabetes Medical and statistical data re effect of Diabetes on person in workplace substantially higher risk of needing time off. Data from source on which it was reasonable to rely. Re-insurance and internal manuals provided mechanism for calculation of risk specific loadings added to specific categories. Consideration of other relevant factors such as the type of insurance and overall level of cover sought. No blanket policy decision reasonable having regard to data and relevant factors.
Jordan v Marsh Ireland S2008-054 Payment Protection Scheme [2003] In good health ? Claimed based on wrist injury [2005]. Refused because of ongoing back problem and therefore not in good health not eligible for scheme. Tribunal policy (i.e. must have no health issues) was a blanket ban on anyone with a disability.
Travel insurance Complainant v Insurance Company S2008-045 [No appearance by complainants] Over-65s couple charged E229 E69 if couple under-65. Is this like Ross a blanket policy based on age? Is there data which can substantiate a straight cut-off at age 65?
Association Belge des Consommateurs Test-Achats ASBL and others v Council of Ministers Opt-out derogation permitted by A.5(2) invalid. No temporary limitation therefore derogation could persist indefinitely. Worked against the achievement of objective of equal treatment between men and women. From 21 December 2012 the unisex rule must be applied per Art. 5(1) of Directive 2004/113
Consequences? Insurers can no longer rely on actuarial/statistical data based directly on sex. But can still rely on data relating to all the other relevant factors which should underpin the decision to insure such as medical history, state of health, pre-existing conditions, driving record, no claims bonus, etc. These factors may impact differently on male and female drivers, e.g. safety record? But this is not directly discriminatory. If such factors impact indirectly on a particular gender , they will have to be justified by the criteria set out in ECJ. If such factors can be justified they will not be unlawful.
Future? As in Ross and other Irish cases, basic principle in Test-Achats is avoidance of blanket policy . Test-Achats is likely to be relied on in all discrimination cases where a policy appears to be based directly on a prohibited ground whether gender, age, religion, etc. Probable that Test-Achats will be applied beyond scope of that case, for example to occupational pension schemes, etc.
Stereotype v sound data Some responses to Test-Achats have been somewhat extreme, such as: Cheaper premiums for high-risk individuals could have impact on road safety? Encouragement of risk-taking behaviour? Carnage on the roads? No evidence is yet apparent for such responses. Assessment of risk should be based not on generalisations or stereotypes but on sound data this is what Test-Achats and similar decisions seek to ensure.
