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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

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say no to ageism

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
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
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 benefitsfor 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…

slide4

Proposal for 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
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
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
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
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
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
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
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
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
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 allowed1
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 allowed2
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
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
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
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
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
Future?
  • As in Ross and other Irish cases, basic principle in Test-Achatsis avoidance of ‘blanket policy’.
  • Test-Achatsis 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-Achatswill be applied beyond scope of that case, for example to occupational pension schemes, etc.
stereotype v sound data
Stereotype v sound data

Some responses to Test-Achatshave 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-Achatsand similar decisions seek to ensure.