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The legal needs of older people in NSW  

, 2004 The study looked at the particular barriers confronted by older people in accessing services to resolve legal issues, including any attitudinal barriers

Executive Summary


Background

Faced with an ageing population, State and Federal Governments have acknowledged the need to implement strategies to address the diverse needs of older people in the community. However, there has been little research or specific attention to their access to justice and legal needs. The importance of addressing the legal needs of older people is underscored by the fact that older people are identified as a group who are socially and economically disadvantaged.

Aim and methodology

The aim of the present study was to identify the particular legal issues which often confront older people in New South Wales (NSW). It looked at the particular barriers confronted by older people in accessing services to resolve legal issues, including any attitudinal barriers.

The report is based on:


Legal Services

Many of the obstacles for older people in accessing legal services reflect characteristics of the current cohort of older people, including a lack of awareness of their legal rights, a lack of confidence in enforcing those rights, a reluctance to take legal action, and a perception that the law is disempowering and cannot solve their problems.

General barriers relating to the ability to access legal information and advice services which were identified during this research include:


Barriers for older people in accessing existing legal services which were identified during the research include:
Older people's needs in terms of legal service delivery include:
Many service providers and older people alike expressed the view that there was a gap in service provision to older people, particularly to older people who cannot afford private solicitors.

Accommodation related legal issues for older people

Legal issues for older people relating to accommodation and housing reflect the distinct nature of accommodation and housing options for older people.

Nursing homes and residential aged care facilities

The main areas of concern which were identified include:


There are three agencies that receive complaints about residential care facilities in NSW: the Commonwealth Aged Care Complaints Resolution Service; the NSW Department of Health, Private Health Care Branch Complaints Team; and the NSW Health Care Complaints Commission (HCCC).

Identified barriers for older people in using the complaints resolution mechanisms include fear of retribution from service providers, and a sense that it is ungrateful to complain.

Consumer advocacy groups play an important role in assisting people in nursing homes and residential aged care facilities to protect their rights. In addition, the NSW Aged Care Rights Service (TARS) was specifically established to provide advocacy and assistance for residents of Commonwealth funded nursing homes and residential aged care facilities in NSW. There are also various agencies that provide a range of information services to residents and prospective residents.

Retirement villages

The main areas of concern which were identified include:


The Consumer Trader and Tenancy Tribunal (CTTT) has jurisdiction to resolve disputes between residents and village operators. Self-representation before the CTTT is difficult for many older people. TARS provides a legal advocacy service, a telephone information service and workshops for residents of retirement villages. Other sources of information for residents of retirement villages include the NSW Office of Fair Trading, the It's Your Life Retirement Village Information website,1 the Retirement Villages Residents' Association, and the Council on the Ageing.

Home units under strata title

The main areas of concern which were identified include:


The Office of Fair Trading provides a mediation service for disputes related to strata living. If mediation fails, then parties can apply for a decision from an adjudicator and can also appeal that decision to the CTTT.

Public housing tenancy

The main areas of concern include:


Tenants can appeal decisions by the NSW Department of Housing to the NSW Housing Appeals Committee. For complaints regarding a failure by the Department to carry out repairs, a tenant can appeal to the CTTT.

The Combined Pensioners and Superannuants Association of NSW Older Persons Tenants' Service (OPTS) provides advice, advocacy and assistance specifically for older people, on both public and private housing tenancy issues. There are 11 other tenancy advice services in NSW for the general population.

Private tenancy

The main areas of concern which were identified include:


Tenants can apply to the CTTT regarding issues such as rent increases, lease terminations, delays in getting repairs to premises, and complaints about landlords requesting excessive access to premises. Older people who are not granted leave for representation may be considerably disadvantaged. In relation to disputes over rent increases for protected tenancies, the matter can be referred to the NSW Fair Rents Board for determination.

Home ownership

Areas of concern which were identified include neighbour problems, older people who act as guarantor for their adult children, real estate agent scams, abuse of power of attorney resulting in sale of home, and informal family accommodation agreements (i.e. where the older person has transferred the title of their home to a relative in consideration for a promise to provide accommodation and/or care assistance).

Boarders and lodgers

Areas of concern which were identified for older people in boarding house accommodation include:


Where a dispute arises between a boarder/lodger and the owner/manager, there is no access to an independent and informal dispute resolution process that can resolve disputes quickly. Aggrieved residents can only pursue redress through either the Local or Supreme Court.

The Older Persons Tenants' Service and general tenancy advice services are available to assist older residents of boarding houses.

Residential parks

Areas of concern which were identified include:


Where residents have disputes over park rules, they can apply to their park disputes committee. A resident can apply to the CTTT for an order for compensation for having to relocate due to park closure. However, the delays in the process of obtaining such an order may result in diminished availability of alternative sites in the area.

The Park and Village Service (PAVS) of NSW and the Parks and Village Tenants Association provide information and advice to residents of caravan parks and mobile home estates. Tenancy advice services also provide legal information and advice services to residents.

Health related legal issues

Issues relating to access to health services are more common amongst older people than other age groups. Certain cohort characteristics of older people, such as their reluctance to question, complain and challenge authority, act as barriers to accessing quality health care and in enforcing basic patient rights. These barriers have significant implications for the effectiveness of current complaint and legal mechanisms, where the onus on enforcing rights is placed on the individual.

Advance health care directives

Advance health care directives are written statements regarding a person's instructions as to the type and extent of health care that they wish to receive in the event of losing the capacity to make decisions. In NSW, while these are not supported by legislation, they are strongly persuasive to health care providers and the Guardianship Board. However, barriers for older people in accessing such directives include:


Access to health services

The following consumer issues in relation to health services for older people were identified:


Hospital discharge

The following general barriers to effective discharge were identified:


Medication misuse

The legal issues of medication misuse which were identified include:


Available complaint mechanisms for health related issues

The NSW Health Care Complaints Commission (HCCC) provides people with a means of making a complaint about health care practitioners and services. For hospital complaints, there are also delegated employees in many hospitals whose role is to investigate and mediate complaints.

Identified barriers in accessing these complaint mechanisms include:


Available advocacy services for health related issues

The Patient Support Office set up by the HCCC can provide officers who can act as advocates, helping to identify issues of concern, providing information about health rights and providing direct assistance to resolve concerns.

The Combined Pensioners and Supperannuants Association provides advocacy, education and support to older people on medicines and health rights.

Older people and disability

Particular issues identified for older people with disabilities include:


Financial and consumer related legal issues

Older people face a broad range of financial and consumer issues.

Social Security and Veterans' Pensions

The main areas of concern which were identified include:


Although the Welfare Rights Centre provides advice and assistance about social security entitlements, older people make up a low percentage of their clients. The Veterans Advocacy Service (VAS) of Legal Aid NSW provides free legal advice about rights and entitlements under the Veterans' Entitlements Act 1986 (Cth). Some ex-service organisations and individuals also provide assistance for applicants at the Veterans' Review Board (VRB).

It was noted that few legal and financial advisers are sufficiently familiar with the social security legislation, practice, and appeals process to provide effective assistance to pensioners.

Both social security and veterans' benefit entitlement legislation provide for an appeal process against administrative decisions. The first step in this process is to complain to the original decision-maker for re-consideration, after which a complainant may seek internal review by Centrelink or the Department of Veterans' Affairs (DVA). Decisions by Centrelink can be appealed to the Social Security Appeals Tribunal (SSAT). DVA appeals go to either the Administrative Appeals Tribunal (AAT) or the VRB.

An alternative avenue for complaints on pension matters is the Commonwealth Ombudsman. The Ombudsman cannot override the decisions of agencies or issue directions to agency staff, but can resolve complaints by negotiation.

Superannuation

The Superannuation Complaints Tribunal (SCT) investigates complaints relating to superannuation, annuities and deferred annuities, and retirement savings accounts.

Banking, credit and debt

The main areas of concern identified include:


The Consumer Credit Legal Centre (CCLC) specialises in issues related to consumer credit, banking and debt recovery, and focuses on issues that affect low-income and disadvantaged consumers. Financial counsellors can also assist people who are experiencing financial difficulties relating to credit and debt.

The Banking and Financial Services Ombudsman (BFSO) is a free independent dispute resolution service which considers disputes involving amounts of up to $150 000 between individuals and banks.

The Credit Union Dispute Resolution Centre (CUDRC) is a free service that deals with complaints about credit union services involving claims of up to $100 000.

Investment advice and financial planning

The main areas of concern which were identified include:


The Centrelink Financial Information Service (FIS) provides free information on financial planning, income and assets tests, and taxation. The Commonwealth Department of Veteran's Affairs Financial Information Service (VAFIS) offers a similar free financial information service. The National Information Centre on Retirement Investments provides a range of leaflets on retirement investment and financial information by telephone.

The Financial Industry Complaints Service Ltd (FICS) provides free assistance to resolve complaints against financial services industry members about life insurance, superannuation, and financial and investment advice.

Insurance Brokers Disputes Ltd (IBD) is a free consumer service that handles complaints on claims of up to $50,000 by consumers against insurance brokers and other financial service-providers (other than insurance companies).

Consumer issues

The main issues identified include:


The NSW Office of Fair Trading (OFT) runs call-centres and provides comprehensive consumer information on its website, including information specifically designed for older people.

The CTTT handles small consumer claims (up to $25,000). In addition, a number of industry based complaints schemes provide an alternative form of resolving consumer complaints for specific industries (e.g. Telecommunications Industry Ombudsman, the Energy and Water Ombudsman of NSW).

Resolving financial and consumer issues

Common features of industry dispute-resolution schemes are that they are free for consumers and generally binding on the service provider. The complexity of the process for lodging complaints varies from body to body. Allowing complaints to be lodged orally and providing staff to facilitate the lodging of complaints helps to improve accessibility.

A common feature of dispute resolution schemes is that potential complainants are required to attempt to resolve the matter directly with the service supplier before approaching the independent body. This may present a psychological barrier for many older people.

Many tribunal procedures require complainants to negotiate on their own behalf. Allowing an older person to be represented in hearings and conciliation may assist in overcoming imbalances in power and in negotiation skills.

Discrimination

In NSW, age-based discrimination is covered in the Anti-Discrimination Act 1977 (NSW). Age discrimination can be direct (i.e. where a person is treated less favourably than others because of their age) or indirect (i.e. where an unreasonable condition is imposed that presents difficulties for older people but not for younger people).

While there is little information available on the prevalence of age discrimination, a number of studies have focussed on age discrimination in employment.

Discrimination in employment

Age discrimination in employment arises in the areas of recruitment, terms and conditions of employment, opportunities for advancement, and dismissal/redundancy. The Anti-Discrimination Board (ADB) reports that many complaints arise from interactions with employment agencies, including:


Discrimination in the provision of goods and services

Issues of concern which were identified include:


Barriers to accessing assistance for discrimination matters

The main barriers to accessing assistance include reluctance to make a complaint, individual disempowerment, ignorance of who to approach for assistance or how to make a complaint, and lack of evidence that the treatment is discriminatory.

Barriers to effective participation in anti-discrimination complaints processes

The main barriers to effective participation in discrimination complaints processes include:


Elder abuse

Types of abuse

Elder abuse can include the following:


There is also variation in the nature of the relationships within which abuse of older people may occur, including those with adult children, spouses, other family members, friends, carers or institutions.

Prevalence of elder abuse

There is evidence that elder abuse is under-reported because of a lack of community and professional awareness and understanding of the problem. Other barriers to reporting abuse include:


Responding to elder abuse

The most effective responses to elder abuse have been those which focus on empowering the victim and emphasise an interdisciplinary partnership approach between the domestic violence and aged care sectors.

Issues for lawyers

Strategies to assist lawyers in their dealings with older clients who may be victims of abuse include:


Substitute decision-making and end of life issues

The prospect of diminishing capacity associated with ageing may cause many older people to consider options for substitute decision-making for financial and personal/lifestyle matters. Older people may also give greater consideration to will making and issues of estate administration.

Powers of Attorney

An Enduring Power of Attorney (EPOA) enables an older person to pre-arrange substitute decision-making should s/he lose personal capacity. The main barrier identified for accessing EPOAs was a lack of awareness of their existence and function. Some older people also expressed concern regarding the potential for EPOAs to be abused by attorneys. This included fears that:


The Powers of Attorney Act 2003 (NSW) attempts to address some of these issues and provides for greater review of EPOAs by the Guardianship Tribunal.

Guardianship and Financial Management

Enduring guardianship enables older people to make arrangements for others to make certain decisions regarding personal, health and lifestyle matters on their behalf should they lose the capacity to do so.

The main barriers to accessing enduring guardianship include a lack of knowledge of its availability, and the complex procedure for appointing an enduring guardian.

Where an older person has failed to prearrange substitute decision-making, the Guardianship Tribunal has the power to appoint a guardian or financial manager to make decisions for that person. The following concerns have been expressed regarding this process:


There is no internal appeal of the Tribunal's decision. Appeals must be lodged either with the Supreme Court of NSW or the Administrative Decisions Tribunal (ADT) of NSW.

Nominee arrangements

There is provision for limited substitute decision-making to assist older people who receive pensions with the management of their financial affairs. Centrelink is able to send social security payments to a nominee, to release information to a nominee, and to accept changes in information from a nominee. As social security is administered by the Commonwealth, Centrelink does not automatically recognise powers of attorney drafted under State legislation.

Wills and Probate

Wills are the most common formal legal mechanism for advance decision-making, permitting people to prepare instructions about the distribution of their assets after their death. Generally, will making is an accessible process, with most older people either having a will or being aware of their basic function.

The complexity of applying for a grant of probate for a deceased's estate presents more difficulties for older people in terms of formality and expense. It was reported that there is insufficient free assistance for probate matters.

Concerns were expressed about the use of lawyers in will making and in applying for the grant of probate, including concerns about potential conflicts of interests for lawyers who advise the testator as well as the family, and about the potential difficulties in locating wills or determining which of a number of wills is valid.

Grandparenting

Identified problems relating to grandparenting include denial of contact and grandparents caring for grandchildren.

Denial of contact

Separation or divorce may result in a grandparent's contact with grandchildren being reduced or denied, particularly if the grandparent is the relative of the parent who is no longer living with the children following the separation. If the grandparents' relationship with their own child becomes strained they may also experience difficulty in having contact with their grandchildren, even if there has been no separation or divorce.

Identified barriers for grandparents taking action in these circumstances include:


A non-legal process which may assist in resolving these disputes in a cheap and expeditious manner is mediation through Community Justice Centres.

Grandparents caring for grandchildren

Some grandparents have full-time care of their grandchildren, either on the basis of a residence order through the Family Court or a care and protection order through the Children's Court. Grandparents, attempting to obtain a residence or protection order, often find themselves negotiating a very complex area of the law, under both State and Commonwealth jurisdictions.

Identified issues for grandparents seeking assistance from the State Department of Community Services (DoCS) include:


Identified problems for grandparents seeking residence or contact orders through the Family Court include:
Conclusion

The most commonly recurring theme throughout this project was that older people are often reluctant to complain about issues affecting them. Given older people's distrust of the legal system, and limitations of the law in addressing their legal problems sufficiently, there is a danger that the legal needs of older people may be largely hidden from legal and non-legal service providers, courts, tribunals, and complaint handling bodies. A specialist legal service for older people could provide a valuable resourcing role for generalist legal services across NSW regarding issues for older people and methods of effective service delivery to older people.



Foreword


The objects of the Law and Justice Foundation are to contribute to the development of a fair and equitable justice system which addresses the legal needs of the community, and to improve access to justice by the community (in particular, by economically and socially disadvantaged people).1

In 2002 the Foundation commenced the Access to Justice and Legal Needs research program, which aims to examine the ability of disadvantaged people to:


The main purpose of the program is to provide a rigorous and sustained assessment of the legal and access to justice needs of the community, especially disadvantaged people, which would provide evidence to assist government, community and other organisations develop policy and plan service delivery. The research is a challenging program involving an interconnected set of projects employing a range of qualitative and quantitative methodologies.

An important feature of the program is the examination of the particular access to justice and legal needs of selected disadvantaged demographic groups. This report is a qualitative study examining the legal needs of older people. Other groups to be examined as part of the program include homeless people and people experiencing a mental illness. These groups have been chosen principally because less is available in the literature concerning their legal needs.

Given the ageing of the population over the last twenty years and the likely continuation of this trend in the coming decades, there is a pressing need to consider the particular legal issues confronting older people, their ability to access legal services, and the issues within the legal system which present barriers for them. This report attempts to address this need, within the scope of the research methodology.

This report into the legal needs of older people is based on a review of existing literature, consultations with legal and non-legal service providers, academics, and older people themselves, and seeks to canvass many of the particular issues relevant to older people in NSW. While the report ‘stands on its own’, it is also important to consider this report in the context of the relevant data on legal barriers and legal need for older people contained in other quantitative and qualitative components of the access to justice and legal needs program. The following reports, in particular should be considered:


Geoff Mulherin
Director
Law and Justice Foundation of NSW
December 2004


Ch 1. Introduction


What sorts of legal issues arise for people as they grow older? How well does the system of law and justice meet the legal needs of people aged 65 years and over? Do older people have access to the legal information they need? What non-legal forms of assistance do older people use in dealing with legal issues?

This report considers the particular legal needs of older people in NSW and the barriers they face in accessing services that can help them resolve their legal issues.

The 2001 Census conducted by the Australian Bureau of Statistics (ABS) found that there were 828,475 people aged 65 and over in NSW, comprising 13 per cent of the population. Women were a majority of the older group overall (56 per cent) and a high proportion of those aged 85 and over (69 per cent).1 Consideration of the services required to address the needs of older people is becoming more important with population trends indicating steady increases in the population aged 65 and over. It is projected that people over the age of 65 will comprise 17 per cent of the population in NSW by 2016.2 There are two main reasons for this increase:



Why do older people have particular legal needs?


There is a wide variation in the circumstances of older people. Many of the legal needs of older people are the same as those of younger people, while some predominate at older ages but are shared with other groups. An example of the latter is legal issues related to disability. Such issues predominate at older ages because the incidence of disability increases with age.

In considering the ways in which the circumstances of older people might give rise to legal needs different from those of younger people, it is important to consider both life-cycle factors and cohort factors. Life-cycle factors are those that affect people as they age, either through the physical and mental process of ageing or through the socially constructed expectations of the role of older people. These life-cycle factors include:


Cohort effects are those that distinguish the present group of older people from the cohorts born before and after them. These effects are often difficult to measure because of a lack of longitudinal data. However, there is some research to suggest that on average, compared with the situations likely to face younger cohorts as they grow older, the present cohort of older people


Are older people disadvantaged?


Compare with younger people, older people tend to have less access to earned income, higher rates of home ownership, higher assets and greater access to means-tested income support. Older people are less likely to be involved in the criminal justice system either as offenders or as victims (although those who are victims of crime can suffer serious physical and emotional consequences).

However, older people are not a homogenous group. They may face a diversity of issues and challenges which may be related to a number of factors, including ethnicity, family status, where they live, level of income and wealth, the type of accommodation in which they live and whether they have any disabilities or health-related problems. When combined with their age, such factors may accentuate their level of disadvantage.



Ethnicity


Older people from culturally diverse backgrounds may suffer difficulties as a result of differing cultural expectations about the position of older people in society and families, and from a lack of cultural diversity in services (e.g. aged care services which can provide for cultural and dietary needs). According to the Australian Bureau of Statistics, of the 828 475 people in NSW aged 65 and over, 30 per cent were born overseas. The most common overseas countries of birth were United Kingdom (9 per cent), Italy (3 per cent), New Zealand (2 per cent), China (2 per cent) and Greece (2 per cent).13


Family status


The majority of older men in NSW lived with their partner (71 per cent), compared with only 40 per cent of older women. Conversely, older women were more likely than older men to live alone, with 35 per cent of older women and 17 per cent of older men living alone.14 This finding appears to reflect that, on average, life expectancy for women is longer than for men.15

Thus for many people, ageing is associated with losing their spouses. As well as the grief and loneliness that this entails, they often need to make major adjustments. An older person who is living alone may become more reliant upon family support if it is available. Further, some men with traditional gender roles may find themselves having to learn domestic skills that they have not needed in the past.

For men over 65 years… the loss of a partner signals tremendous increases in unpaid work ... The scale of these increases is truly breathtaking, with laundry time quadrupling and cleaning and cooking trebling. Retired men living alone are the only category of men who spend more time in food and drink preparation than their female counterparts.16

Some widowed women may be confronted with learning to manage financial affairs with very limited experience or knowledge. Many in the current older generation may have been financially dependent on their husbands for most of their lives.



Geography


Figure 1.1 is based on census data and shows the place of residence across NSW of people aged 65 years or over. It also shows the place of residence across NSW of people aged 15 to 64 years. It can be seen that, of all people in NSW aged 65 or over, 19 per cent live in outer Sydney, 20 per cent live in inner Sydney, 18 per cent live in other Sydney regions, 26 per cent live in Coastal regions of NSW outside Sydney and 16 per cent live in other regions of NSW. Compared with 15 to 64 year olds, older people in NSW are somewhat less likely to live in outer Sydney (19% versus 25%), and somewhat more likely to live in Coastal regions outside Sydney (26% versus 21%).

Figure 1.1 Population Distribution (percentages) across regions:


Aged 15–64 years and 65 years and over, NSW 1996



Source: 1996 Census, Place of Usual Residence Data
Notes: Coastal NSW excludes Sydney.

The figure presents data for 15–64 year olds rather than 18–64 year olds because the ABS collect data in relation to specified age groups, commencing with the 15–24 age group. The ABS do not present data separately for 15–17 and 18–24 year olds.

For many older people, retirement to the coast or country is a financial or lifestyle choice. As a result, some areas have relatively larger proportions of older people. This has implications for the provision of, and distribution of funding for, public services such as specialised health services, home help, public transport and specialised legal services.17



Income


The 2001 census data show that older people had lower incomes than those aged under 65. Fifty-eight per cent of older men and 67 per cent of older women had incomes under $300 a week, compared with only 19 per cent of men and 38 per cent of women aged 25–64. In 1997–98, 77 per cent of people in NSW aged 65 or over received a government pension or allowance as their main source of income, compared with 20 per cent of those aged 15–64 years. In contrast, only three per cent of older people relied on wages or salary as their main source of income, compared with 66 per cent of those aged 15–64 years. Eight per cent of older people relied on superannuation as their main source of income, compared with one per cent of 15–64 year olds.18

Older women are less likely than men to be receiving superannuation income either on their own account or from their husband's employment. This reflects the fact that women are more likely than men to have spent much of their adult lives out of the labour force. The pattern of women's working lives is often characterised by employment designed to fit around the demands of child bearing and child rearing, with lengthy periods out of the labour force and often a preference for occasional, part-time work. The failure of superannuation schemes to reflect the nature of the working lives of women means that relatively few older women have been eligible to draw benefits in their own right upon reaching retirement age.19

Low interest rates over the last seven years have also had a negative impact on the investment incomes of older people who are self-funded retirees.

Older people are eligible for a range of concessions related to health, pharmaceuticals, transport, rates, telephones and various leisure and entertainment activities provided by different levels of Government and the private sector. These are accessed by concession cards, such as the Department of Veterans' Affairs (DVA) Gold Card, DVA White Card, Pensioner Health Benefits Card, Commonwealth Seniors Card and NSW Seniors Card. Different eligibility criteria and different concessions apply to each of these.

Nevertheless, a high proportion of older people suffer serious financial hardship. Consultation by the Older Women's Network with older women in 1995–96 found that over two-thirds of those receiving a pension felt it was not enough to live on. Their main concerns were their inability to replace household equipment or afford maintenance to their homes, and a fear of health costs.


Others commented on their inability to replace their clothes and shoes, the cost of keeping companion animals and the cost of holidays or outings to visit their children or grandchildren. Single women living alone in particular reported financial hardship as they could not share their accommodation costs, and some had formerly relied on their husbands to carry out home maintenance.21


Housing and other accommodation


Unlike the low incomes of younger people who live long term on pensions and benefits, the low incomes of older people tend to be supplemented, to some degree, by their assets. Older people are more likely than younger people to own their own home or board with their children’s families. In 1996, 79 per cent of older people in NSW lived in a home that was fully owned by a member of the household, and five per cent lived in homes where a mortgage was being paid off. That is, 84 per cent of older people lived in homes which were owned or mortgaged as compared with 69 per cent of people under the age of 65. Relatively few older people (12 per cent) lived in rented accommodation, of which about half was rented from the State housing authority. This compares to 27 per cent of people under the age of 65 in rented accommodation.22

Ninety-three per cent of older people live in private dwellings, compared to 99 per cent of those aged under 65. The likelihood of a person living in an institutionalised setting increases with age: of those aged 85 years and over, 34 per cent lived in nursing homes or in retirement or aged care accommodation.23



Disability and health


Older people are more likely than younger people to have a disability and to have developed degenerative conditions as a consequence of ageing. Older people are also more likely than younger people to be caring for people with disabilities. In 1998, 54 per cent of older people in Australia had a disability, with almost one-third of these having a profound or severe restriction. In comparison, of those aged 15–64 years, only 17 per cent had a disability, and only four per cent had a profound or severe restriction.24


Strategies to address the needs of older people


Faced with an ageing population, in the last five years, State and Federal Governments have acknowledged the need to implement strategies to address the diverse needs of older people in the community. In 1998, the NSW Government announced its Healthy Ageing Framework 1998–2003.25 The Healthy Ageing Framework, with a primary focus on those aged 65 years and over, had the objective of ensuring “a society in which all older people lead satisfying and productive lives with maximum independence and well-being”. It recognised the importance of ensuring that programs, policies and services for older people take into account the differences in gender, culture, language, geographical location and socio-economic circumstances of older people.26

The Commonwealth’s National Strategy for an Ageing Australia was released in 2001.27 It provides a framework for action and planning by Governments, businesses and individuals. In particular, it reinforced that all Australians, regardless of age, should have access to appropriate employment, training, learning, housing, transport, cultural and recreational opportunities and care services that are appropriate to their diverse needs, to enable them to optimise their quality of life over their entire lifespan.28

Neither of these frameworks specifically addresses access to justice and the legal needs of older people. In addition, in Australia, there has been little research into the legal needs of older people, despite the fact that older people are a considerably disadvantaged demographic group.



Aim of the present study


The aim of the present study was to identify the access to justice and legal needs of older people living in NSW and to examine their ability to obtain legal services including legal information, basic legal advice, initial legal assistance and legal representation to meet these needs. The report also looks at whether they are able to participate effectively in the legal system and the availability of assistance from non-legal advocacy and support (including non-legal early intervention and preventative mechanisms, non-legal forms of redress, and community based justice). The project is based on a literature review, a series of consultations with older people and a series of consultations with service providers and organisations representing older people.


Structure of Report


Chapter Two details the research methodology for the present study. The chapter commences by providing the operational definition of ‘older people’ which formed the basis of the research. The chapter then details how the the literature review and interviews with stakeholders, service providers and academics were conducted. It also details how the perspectives of older people were obtained via focus group discussions and via individual submissions and communications to the Foundation.

Chapter Three looks at difficulties encountered by older people in accessing legal assistance, including legal information, legal advice and legal representation. The chapter considers the effect of attitudinal and cohort factors in presenting barriers to engaging with the legal system, as well as aspects of legal service delivery which present access difficulties for older people.

Chapters Four to Ten look at specific areas of law which significantly impact on older people, and the services and processes available to older people to resolve these issues.

Chapter Four looks at the diverse accommodation-related legal issues confronted by older people. Issues related to nursing home accommodation, residential aged-care facilities, retirement villages, strata title issues, tenancy issues (both private and public housing), issues associated with home ownership, boarding house accommodation and accommodation in residential parks are considered.

Chapter Five looks at the health-related legal issues for older people. Issues considered include the development of advance health care directives to provide instructions as to the older person’s desired level and type of health care, access to health services, and misuse and mis-prescription of medication.

Chapter Six looks at the significant consumer and financial issues which confront older people, and their related legal problems. Issues considered include social security and veterans’ pension entitlement, superannuation, banking, credit and debt issues, consumer related issues, and financial abuse of older people.

Chapter Seven looks at the incidence of age-related discrimination for older people and the impediments in accessing anti-discrimination resolution processes.

Chapter Eight looks at issues pertaining to the abuse of older people, whether by their spouse, by another family member, by their carer or by an institution. Consideration is given to the different types of abuse, including physical abuse, financial abuse, psychological abuse, sexual assault and abuse, and neglect.

Chapter Nine looks at the legal issues which arise when an older person has to consider arrangements for substitute decision-making and certain end of life related issues. These include arrangements for powers of attorney, incapacity and guardianship issues, nominee arrangements and wills.

Chapter Ten considers the grandparenting-related legal issues, including being denied contact with grandchildren, and being in the role of full-time carer of grandchildren by direction of either the Family Court or the Children’s Court.

As a conclusion, Chapter Eleven provides an overview of the barriers and difficulties confronted by older people in accessing legal assistance, participating effectively in the legal system, and accessing various alternative forms of dispute resolution and non-legal advocacy.

In terms of the legal issues which confront older people, it was decided not to include a separate chapter covering general issues of crime and crime victimisation. It was noted that the existing literature indicates that older people have a high fear of crime.29 This was supported by the comments made in several consultations undertaken and submissions received as part of this study, which also indicated a perception by older people of high vulnerability to violent crime. However, the actual incidence of crime against older people is significantly lower than for younger people. According to the Australian Institute of Criminology:


Graycar and James observe that while research indicates that older people are not particularly at risk of what may be described as ‘conventional crimes’ (such as burglary, robbery and assault), the literature on the abuse of older people in residential care institutions, in private homes, and through their contacts with government, administrative or financial structures (in particular guardianship and administration systems) suggests that crime victimisation of older people occurs in other ways.31 As detailed above, the present report covers these issues associated with abuse of older people.

This report aims to record as fully as possible the substance of the responses received through the various consultations and submissions, and of the relevant literature which has been examined. In this respect, the report reflects the results of methodology which is largely qualitative in nature.

At the time of writing this report, the Law and Justice Foundation of NSW was undertaking a major quantitative legal needs study in six local government areas across NSW (South Sydney, Fairfield, Campbelltown, Newcastle, Nambucca and Walgett). A total of 2,431 participants were interviewed by telephone as part of this survey. At the time of writing this report the data analysis of the survey had not been conducted. However, across the six regions, a total of 332 people over the age of 65 participated in the survey. It is anticipated that analysis of the results for these older people will provide significant quantitative information regarding the access to justice and legal needs of older people in NSW. It is anticipated that a report detailing these results will be available in 2005.



Ch 2. Methodology


Definition


For the purposes of this study, older people were defined as those aged 65 and over. This age limit was selected because much of the available statistical material for older people is based on a definition of those over the age of 65. However, most of the issues identified as associated with ageing can arise earlier than that, and some relate more often to the very old than to people aged 65 to 75.

During the research, some exceptions to this definition were allowed. In particular, the process of exclusion from paid employment through age discrimination is more apparent among people below age 65, because by that age few people are still in employment or seeking it.

An exception was also made for Indigenous people, where consideration was given to those aged 45 and over. The reason for this was because the Aboriginal and Torres Strait Islander population is significantly younger than for the population as a whole. In 1996, only 2.5 per cent of the Indigenous population was aged 65 or over (compared to 13 per cent for the population as a whole), and only 13 per cent were aged 45 or over (compared to 36 per cent for the population as a whole). ‘Age-specific death rates were higher for Indigenous people than for the total Australian population in every age group, but the largest differences were observed among males and females aged 35–54 years old, when the rates were 6–7 times higher’.1



Background paper


The research project, including the issues to be explored in the research, some basic demographic details about older people in NSW, and a brief overview of certain life-cycle and cohort factors which may impact on the particular legal issues which older people may face, or their ability to access legal services.

The background paper was distributed to individuals and organisations identified as potential stakeholders in the project, to assist them in providing relevant information to the research team, either through the consultations or the submission process. These included community and peak organisations representing the interests of older people in NSW or providing services to older people in NSW, relevant government bodies, community legal centres, ageing and disability officers in local government, academics and others with an interest in general or particular issues concerning the legal needs of older people.



Literature review


The research team undertook a literature review of recent, predominantly Australian sources, including plain language sources, on various topics of law for older people and non-legal issues affecting older people.

The literature review was governed by a number of strategies. First, because the study focused on the legal needs of older people in NSW, priority was accorded to literature dealing with NSW. In the absence of relevant literature in NSW, or as a means to engage in comparative analyses, materials dealing with other Australian States and Territories, and to a lesser extent, with foreign jurisdictions, were collected.

Second, the literature review was generally limited to literature that was published from 1980 onwards. There were occasions when there was a need to review literature published prior to 1980, primarily where nothing more recent had been written on the topic and the publication contained information that remained relevant to the present issues.

Third, while there did exist some literature which generally dealt with the legal needs of older people, it was recognised that most of the literature would be more directly related to specific areas of law, policy and practice. Therefore, we proceeded with using the broad areas of law that had been determined as forming the basic structure of the study to locate materials which were pertinent to those areas. This allowed us to uncover literature which, on its face, had no obvious connection with legal needs and access to justice, but whose content provided valuable information on particular issues related to this field.



Interviews with service providers, interested stakeholders and academics


The research team held a series of interviews with a range of individuals and organisations with an interest in elder law. These included:
For reasons of limited resources, the list of service providers, interested stakeholders and academics who were consulted was confined to those who exhibited a special interest, expertise or background concerning issues confronting older people, particularly legal or human rights issues. For this reason, general service providers or legal professionals, such as Local/District/Supreme Court staff, were not consulted, unless they were involved with specific programs to assist older people, or their jurisdiction specifically encompassed issues relating to older people (e.g. Anti-Discrimination Board, Guardianship Tribunal).

A list of these individuals and organisations appears in Appendix 1.

The interviews were semi-structured and sought to canvass the following issues:

Legal problems


Information, Advice and Services
Formal Processes
Reform


Seeking the views of older people


The views and experiences of older people themselves were sought in two ways: focus group discussions, and individual submissions and contributions.

Focus group discussions

The research team conducted nine focus group discussions, involving a total of 78 participants (three-quarters of whom were women). In selecting the organisations with which to organise the focus groups, the research team sought to get a representation of both older men and women, older people from urban, regional and rural locations, and older people in different accommodation arrangements. The research team also sought to obtain the views of Indigenous older people, and also of those who work with older people in need of a high level of care and support.

The following focus group discussions were conducted:


While the participants were diverse, they cannot be taken as statistically representative of the population of older people as a whole. Information from participants on demographic, financial or social factors was not collected.

Participants in these focus groups were first asked a general question about what legal problems or issues they had experienced since they had reached the age of 65. This was asked with the intention of identifying what areas would be of most significance. However, given that this general question was interpreted very narrowly by participants — as referring only to criminal law or court cases — it was necessary to give participants a brief outline of the other legal areas that might be pertinent. Participants were then prompted with a series of general questions, each of whom were asked about whether they had experienced a particular type of legal problem. The legal problems asked about first were less sensitive problems such as wills, conveyancing or retirement village contracts, or financial issues. Participants were then asked about more sensitive issues and those in which legal avenues were less likely to be used, such as family issues. Finally they were asked indirectly about issues relating to financial or other elder abuse. That is, they were asked whether they knew of cases where older people had experienced these kinds of problems, rather than being asked whether they themselves had experienced these problems. This was asked indirectly because it was thought that people who had suffered abuse might be reluctant to discuss it in an open forum.

Participants were also asked the following questions:


Focus discussion groups of this nature have some clear advantages as a means of data collection:
Thus, such focus discussion groups are a useful way to raise a range of perceptions and experiences. There are also, however, some disadvantages:
While the results need to be viewed in the light of the above considerations, participants were generally keen to air their experiences and views on legal issues and service provision. The researchers were surprised at the apparent frankness on most issues.

Individual submissions and contributions

The other source of data from older people was by individual submission. The research team placed an advertisement in Age Pension News for Seniors Magazine asking readers to contact the Foundation by telephone, e-mail or post. In particular, the advertisements invited older people to provide information about:


The Foundation also made available a guide for making submissions for individuals, which provided some more specific direction and guidance as to the information being sought. A copy of this submission guide is included in Appendix 2.

We received 135 contacts, 85 of which were from NSW callers and 31 of which were from other States. In 19 cases the State was not identified. Most submissions were received by telephone and most concerned individual experiences.3

These submissions provided us with a valuable indication of some of the prevailing legal problems and issues of interest to older people. It appeared to the research team that as the telephone conversations were confidential, people were even more likely to discuss matters of a personal nature than had been the case in the focus groups. The telephone calls enabled us to interview callers in more depth and at greater length than would have been possible through a structured survey or via written submissions. It should, of course, be noted that the callers were self-selecting and thus cannot be considered representative of all older people in NSW. More importantly, the callers had defined what they saw as legal problems and the issues they chose to raise with us, rather than the researchers selecting the issues on which to collect data. The stories these callers recounted reflected their perceptions and attitudes. The research team was not able to make judgements about the accuracy or validity of complaints on the basis of one side of the story.



Attendance at relevant forums and conferences


Members of the research team participated in five forums and conferences relating to ageing, older people and issues of disadvantage which they experience. These forums were:
These forums were selected on the basis that they provided further opportunities to consult with relevant legal and community organisations, as well as providing opportunities for receiving further direct input from older people who attended these forums.

The outcomes of these forums, together with the papers from the forums, have been considered as part of the consultation process for this study. It should be noted that the list of forums and conferences attended does not represent an exhaustive list of relevant conferences and forums which occurred during the conduct of the present study.



Developing a framework for analysis


Upon analysis of the material collected for this study, it became apparent that issues of access to legal services, access to non-legal advocacy support services, and access to dispute resolution processes were integrally related to the types of legal issues confronting older people. While some of the identified barriers to meeting legal needs were of general application to older people regardless of the type of legal issues involved, in many cases, the barriers were specific to the types of legal issues confronting older people. Accordingly, in developing a framework for analysis of the research material, the research team decided to cover the general issues of legal need and barriers to accessing legal services for older people separately from the issues of legal need which were directly related to particular types of legal problems experienced by older people. The structure of the report, as outlined in the Introduction, reflects this approach.


Ch 3. Legal services


Introduction


Obtaining legal assistance to address a legal issue or problem is defined by the terms of reference1 as access to legal information, basic legal advice, initial legal assistance and legal representation. While participating in the legal system does not necessarily equate with accessing justice, barriers to that participation can adversely impact upon older people’s access to justice. This chapter reports on the comments that individuals, organisations and service providers made in relation to obtaining and providing legal assistance, as well as relevant literature on the subject. The consultations particularly concentrated on the types of problems experienced by older people in seeking to access legal services.


Attitudes of older people


Older people are not a homogenous group. As a group, they comprise diverse cultural and linguistic backgrounds, levels of education, family arrangements, socio-economic status and so on. Nevertheless, some common themes were evident from our consultations and submissions received. Older people’s attitudes to themselves, the legal system, access to legal information and the provision of legal assistance will, of course, impact upon the way that services need to be tailored for older people.


The way older people see themselves


Consultations with older people, and those providing legal services to them, attracted comments that were commonly themed around a lack of capacity or willingness to engage with their legal problems or the legal system. The National Alternative Dispute Resolution Advisory Council has assessed the current cohort of older people in the following way:
The attitudes reflected in the above comments are to some extent contradictory, but nevertheless both result in legal inaction. Not feeling sufficiently assertive to take on a problem and leaving it to family members is counterposed with a pride in managing problems silently, in not burdening family members or friends with one's problems. Both result in older people not directly using the legal system to address an issue.
Increased physical and emotional vulnerability, as people age and experience higher levels of dependency, can also have an impact on how they deal with perceived threats. Fear of what might happen to them can exacerbate the problem by isolating the older person from support networks and assistance.
This vulnerability does not only result in a heightened sense of anxiety. It can also mean that when something does go wrong, its effects are experienced more severely than would be the case if the person were younger. It can also have consequences beyond the physical. It can affect older people's identity and their expectation of spending time in the way they had planned.
These comments suggest that, at least for these two women, the law will not be able to redress the real problems: coping with a physical disability, pain and suffering, and the loss of anticipated lifestyle. For them, as with many others, the law cannot return them to the position they were in prior to their accidents. This perspective of seeing the legal system as unable to adequately address a problem, seems to explain why some older people do not engage with the legal system, which can only offer them financial relief.

When older people do seek assistance to address a legal problem, they frequently demonstrate high expectations of legal service providers.


These comments indicate that expectations that a lawyer will be able to solve an overwhelming problem can fuel older people's perceptions of themselves as individually powerless and encourage a mentality of needing to be rescued. These problems compound when other impairments, such as dementia, afflict the older person.
Some older people can be paralysed, both by the notion of having to resort to legal assistance and anxiety emanating from engaging with the legal system, which they may have managed to avoid up to this point in their lives.
One submission, made by the neighbour of an older woman who had witnessed a crime, further illustrated this problem of being faced with a legal problem for the first time. The woman had had little or no contact with the police or the legal system and was frightened of the unknown as well as the formality. She was served with a subpoena by the police late at night, as she and her husband were going to bed for the night.
And,
Beyond the clear discomfort experienced at being faced with the unfamiliar, indicated by the submissions above, these comments have implications for legal service delivery to some older people.
Another service provider to women drew attention to how adherence to traditional notions of gender roles play out and disadvantage older women in particular.
And Consumer Credit Legal Centre's comments were similar.
However, another service provider to men suggested that there may be comparable problems for older men.
A male participant in a focus group discussion also had a number of observations about men. He said that for himself and other men of his age, they simply did not have the confidence to use the courts and the police. He said that men who had not gone anywhere for assistance in solving their problems were not going to start now. Quite apart from lack of confidence, it was suggested that there was a tendency to solve problems themselves, partly because of the uncertainty of what assistance could be provided by others, and partly because of a culture of not complaining, to accept what is given.18


The way older people see the legal system


While current trends in service delivery to disadvantaged groups have focused on empowerment through legal assistance and the creation of choices,19 there is at least some indication here that some older people may not be capable of seeing the legal system system as empowering.
And,
Another submission described an assault on an older couple in a regional area in NSW. The husband tried to find out what happened to the two girls who assaulted them. He was told that they were charged but acquitted. 'So much for the law being fair and taking in both sides of the story.'22

However, as previously mentioned, it is not possible to reliably generalise about older people. Different people have different needs and various levels of engagement with the legal system. The following comments from legal service providers to Indigenous service users exemplify a differential approach to the legal system.


And,
Professor Carolyn Sappideen, Director of the Centre for Elder Law at the University of Western Sydney, has another perspective on the current cohort of older people.
While a number of older people consulted for this project did not have faith in the legal system, some had strategically identified alternative methods of addressing problems. One caller made a submission that she did not want to seek advice from lawyers because she did not trust them. Instead, she approached a local MP, using political rather than legal pressure.26

Another participant in this project based his rejection of the legal system on assumptions about the current law. He said that he was inhibited from using the law because of his perception that the laws have fundamentally changed such that there are no longer the same remedies, and going to court has been substantially restricted.27

One service provider noted gender specific misconceptions about the legal system from the perspective of older women.


For some,29 engagement with the legal system is not a choice. They are forced to participate, when clearly they would prefer not to be involved.


This caller's story illustrates that, while some older people fail to see the law as empowering, for others it can be actively disempowering. This kind of experience, where the law is used as a weapon, may in turn affect the way that the legal system in its entirety is viewed.


Access to legal information


Like other disadvantaged groups, older people can come up against many barriers to accessing legal information because of comprehension problems. This may be due to a lack of access to materials translated into community languages, poor literacy skills or cognitive impairments. However, there are some barriers to which older people, distinct from other groups, are particularly susceptible.


Technological barriers


Telephones

Even though older people exhibit high use of telephones for communication, submissions to this project indicate that they prefer to speak to someone rather than be faced with messages and directives to press a number to clarify their needs.


And,
Several of the participants in focus groups complained of frustration at being met with recorded information: "I don't know if it's computers that we can attribute to the change — I think it's press buttons that have allowed it to happen."33 Another participant spoke positively of a telephone information service that used to be available, "It was wonderful because they didn't have to press three, somebody actually answered the phone."34
One focus group participant commented about telephones and difficulties that older people have with them: "People on the phone speak far too quickly for the elderly and they can't understand what they are saying."36

Clearly, the telephone does present some barriers to access for older people, although it also can make legal services more accessible, particularly when there are mobility issues for people with disabilities or for people living in rural, regional and remote areas.


And,
Computers

The internet has been increasingly relied upon by legal service providers, government departments, complaint handling bodies and interest groups to convey legal information to consumers. There is some evidence that older people are using the internet more.


Some participants affirmed this increase in computer usage, though were limited in their ability to make full use of the technology, "I use computers but I haven't used it to get legal information yet."40 Others expressed their feelings of exclusion, "…for those of us who really need information, [computers are] just a real put off,"41 and, "…now, I will not participate in anything that's being advertised or information that is being given out that doesn't list the company by telephone number."42 Another submission by an individual caller expressed concern that when quasi-judicial bodies publish their decisions online for ease and efficiency, with no other option being given to consumers, this can impact upon people who are not technologically savvy:
There is evidence, however, that the 'young-olds' are more computer/internet literate, as in 2001, 18 per cent of 55–64 year olds used the Internet to access Government services compared with a population average of 26 per cent.44


Where to go for information


Older people commented on their frustration at not knowing where or who to turn to for legal information, "My information for the focus group is the lack of information."45 Many spoke of the need for a single point of reference and referral.
A consultation with Inner City Legal Centre yielded this comment: "There is an information problem that older clients aren't aware of the services available".47 This was echoed by the Welfare Rights Centre.
Similarly, a Women's Legal Resource Centre officer, speaking about older women in particular, commented that:
The Premier's Forum on Ageing, held in Sydney in 2002, reported on research commissioned by the Department of Ageing, Disability and Home Care (DADHC) into consumer rights protection and older people. Key issues identified in relation to communications and government agencies include the following:
These comments have broader application than for government departments, although numerous legal problems arise through interaction with government agencies. Research commissioned by Centrelink into the information needs of older people indicated the need for a point of reference toward service providers and sources of information.
A consultation with the Veterans' Advocacy Service, Legal Aid NSW, suggested that existing services for legal information and referral may not be appropriately formatted for older people, given their dislike of press-button telephone services and desire to speak to a person.
A consultation with the National Information Centre on Retirement Investments (NICRI) affirmed that for specific issues that have great relevance for older people, there is little knowledge of where to find adequate information and advice.
Of course, some older people are more adept at navigating sources of legal information. One caller's submission related to liquor licensing law; she and her husband were opposed to extensions of licenses late at night in their area. Although the cursory information she obtained was inadequate, she was able to access an intermediary source of information (i.e. the Legal Information Access Centre — LIAC) that eventually satisfied her requirements. However, she provided no information as to how she became aware of LIAC:
Lack of information, when such information is required, can have severely deleterious effects on some older people.
Older people tend not to go directly to a legal service provider or other intermediary when they have a problem that is legal in nature. According to the National Office for the Information Economy there is a heavy reliance on informal sources of information.
Members of the NSW Committee on Ageing also stated:
According to Woolcott Research:
One participant in a focus group with Aboriginal Elders in Penrith reiterated this dependence on informal networks, and on incidental rather than authoritative sources of information.
This was affirmed in other focus groups.
This reliance on family and friends was expressed as being based upon trust. The research commissioned by Centrelink reflected the lack of trust in relation to more formal sources of information and referral.
And,
One consultation which canvassed issues relating to elder abuse yielded these comments about information and assumptions about intermediaries.
The above comments suggest that high levels of anxiety are experienced by older people about where to begin in their search for legal information and/or information to avoid legal problems developing. That distress might, at least partially, explain the reliance upon less formal, though not necessarily reliable, sources of information and advice.
The Blue Mountains Community Legal Centre also noted the importance of having multiple strategies to convey information to older people: "…you can't just have one information strategy and expect to reach all older people."65


Relevance


It is a matter of common sense that people do not tend to process and remember information that does not have some relevance to their daily lives. One way for legal information to become significant to people is if they have a legal problem and want to find out how to address it. This need for appropriately timed information has been noted elsewhere, "information which is not communicated at the time it is needed is usually not absorbed or is forgotten quickly"66 and, "…it is not what people want to know that is most important, but what they need to know."67

People generally do not actively seek out legal information until they, or someone close to them, has a legal problem. Implicit in this, is that they realise that the problem they are experiencing is legal in nature or has legal consequences or remedies.

A pilot legal needs survey conducted by the Law and Justice Foundation in the Bega Valley Local Government Area68 showed that:


If these findings are borne out in the larger legal needs survey currently being undertaken by the Law and Justice Foundation in six local government areas across NSW,71 then there will be implications for the perceived relevance of legal information from older people's perspectives, and strategies for its delivery from legal service providers' perspectives.

There are some areas of the law that bear special relevance to older people. One report has indicated that substitute decision-making, care arrangements and accommodation decisions are of particular significance to older people.72 According to data collected by the Foundation from legal service providers in NSW, older people are more likely than other age groups to inquire about civil law matters. Data collected from Legal Aid NSW shows that housing, wills and estates, personal injury, consumer issues and other civil issues are the subject of most inquiries by people over 65.73

Table 3.1 Legal Aid NSW 2000–2002 Age by Broad area of law — Advice and Duty Solicitor
Percentage for law type within age group, Access to Justice Data Digest, A Compendium of Service Usage Data from NSW Legal Assistance and Complaint Handling Services, Law and Justice Foundation of NSW, January 2004

0–14
15–17
18–24
25–34
35–44
45–54
55–64
65–74
75+
Family
3
0.8
8.1
32.3
34.4
14.6
4.6
1.8
0.5
Crime
2
6.7
31.4
33.4
18.1
6.1
1.6
0.5
0.2
Domestic violence
0.9
4.8
15.4
31.9
28.3
11.5
4.5
1.8
0.7
Traffic Offences
0.2
1.2
26.1
38
22.6
8.3
2.6
0.7
0.2
Business and Media
1
0.2
5.1
16.1
30.3
24.3
11.9
7.6
3.5
Consumers
1.1
0.3
7.5
17.9
25
21.9
13.8
9
3.6
Credit and Debt
1.1
0.1
7.1
22.4
24.8
20
13.6
7.4
3.5
Employment
0.9
0.3
11.2
24
27.8
23.1
9.9
2.4
0.5
Government
0.6
0.9
13
28.2
22.5
13.6
9.1
4.7
7.3
Health/Human Rights
1
0.7
11.8
29.3
24.1
15.7
10.7
4.3
2.4
Housing
1.9
0.1
3.7
13.2
20.4
19.4
16.6
15.5
9.1
Motor vehicles
1
0.3
17.4
21.4
24.7
16
9.8
6
3.5
Personal Injury
1.2
0.2
6.6
19.6
24.3
16.6
13.4
9.2
9
Wills and Estates
18.5
2.3
4.3
13.8
15.9
15.6
12.1
9.7
7.8
Civil — other
1.9
0.5
7.4
16.9
24.1
20.3
14.6
9.1
5.2
Total (100%)
6,869
15,126
84,054
117,130
81,968
35,389
14,526
6,610
4,926
Notes: No. of inquiries=366,598; Missing values=16,965 (4.4%)

In at least some of these identified areas, forward planning is a pivotal preventative mechanism to avoid many problems arising. This was acknowledged in the research conducted on behalf of Centrelink in 1997.


When planning strategies for legal information dissemination to older people, it may be important to first raise awareness of potential problems to create the context for the provision of legal information. This may require targeted and appropriate education campaigns.


Legal service provision


Lack of specialised services


Based on consultations undertaken for this project, older people and service providers agreed that there was a gap in service provision to older people. Older people, while experiencing many of the same legal problems as other age groups, do have some special needs that differentiate them from others. This is the case in terms of specialised areas of the law, such as retirement village contracts, and in terms of catering to their particular communication needs.

The lack of a singular, specialised service for older people, or 'one-stop-shop,' sends them on a referral path.
Referrals can be discouraging and frustrating for consumers of legal services as well as time consuming for service providers.
Even if a specialised service were to be introduced to cater to older people's legal needs, better referral practices require development to prevent older individuals being shunted from service to service.


Service provision to older people


There are, however, a very small number of services that either cater to a specific area of the law or make some special provision for older consumers.

The Aged-Care Rights Service provides legal assistance for residents of Commonwealth-funded nursing homes and hostels in NSW. It also advocates for residents of retirement villages and serviced apartments. It offers a telephone information service, and also conducts workshops for service providers and staff as well as residents.

In a consultation with the Aged-Care Rights Service, they reported overwhelming numbers of inappropriate referrals from service providers and cold calls from older individuals, which they then had to refer on to other services.


There are also many service providers that are aware of the specificity of their service and provide appropriate referrals to older people, for example:
And,
Other services accommodate their older clientele, or more discrete groups, by providing additional or special services. The submission from Centrelink to the Law and Justice Foundation of NSW Access to Justice and Legal Needs Program highlights some of their initiatives aimed at older people.
Legal Aid NSW also has a Veterans' Advocacy Service, which provides legal assistance in veterans' affairs cases and veterans' pension applications.
The service has established relationships with the Vietnam Veteran Associations, Returned Services League (RSL) Associations and with Indigenous communities through the Aboriginal and Torres Strait Islander Veterans' Association (ATSIVA) in Moree, Kempsey and Coffs Harbour. Current advice and information services exist in Newcastle, Wollongong, Nowra, Bateman's Bay and Coffs Harbour.

In addition to Legal Aid, Federal funding is provided directly to RSL, Legacy and Vietnam Veterans' Associations to assist people making applications for veterans' pensions. Many veterans also seek assistance from private advocates who work on a contingency basis.83

NSW Local Courts provide ad hoc outreach services on request for frail aged people in aged care facilities.84

Numbers of older people

One explanation for the lack of a specialised service for older people and the relatively small numbers of agency initiatives aimed at older clients is the small numbers of clients over the age of 65.85


As previously mentioned, there may be a number of explanations why older people are not using legal services, including cohort issues, costs and a general distrust that the legal system will assist them. Definitional differences in categorising older people and inconsistent data collection methods might also provide a skewed picture.

Some organisations do not collect age data.


Clearly the Veterans' Advocacy Service would have a very high proportion of older people. The Welfare Rights Centre also reported a high number of older people using their services, although their threshold age is considerably lower than 65.
Rural, regional and remote

Older people living in rural, regional and remote areas were identified in the consultations as being particularly difficult to service. Distance, disability, numbers and resources were all identified as key issues.


Time management

A number of service providers to older clients mentioned the fact that older people require a particular sensitivity to time management issues from their service providers. The Legal Aid policy officer consulted for this project saw this as a benefit.


However, other service providers perceived the issue of the time needed to provide adequate service as a problem that needed to be addressed.

Older people are definitely more time consuming. They want to tell stories rather than come to the point. They avoid direct questions. Even stating the problem is too hard. They jump around from question to question and issue to issue… By the time they come to Consumer Credit Legal Centre the situation has got out of control. If they had come earlier we would have been able to help them structure their debts to avoid it getting so bad. 97



What older people think about legal practitioners


Research conducted in Queensland in relation to legal service provision to older people concluded that key issues for older clientele are that the legal practitioner effectively communicates with them and demonstrates legal skill.
It has been noted, however, that there may be some barriers preventing best practice service provision to older people.
Legal practitioners clearly articulated during the course of the Queensland study that the time required to explain legal advice to older people was a problem. However, there was also a systemic barrier raised by many about the need for legal education, in and out of law schools, that focused on legislation that is relevant to service provision to older people: “Current training needs in relation to the legislation were identified by approximately half of the [legal practitioner] respondents.”100

The Queensland research revealed that when the older people they sampled did access legal services, the majority had positive experiences, reporting kindness and a willingness to assist as features of good practice. There were no unequivocally positive submissions to this study made by older people about legal practitioners. The following two submissions, however, had some favourable comments regarding legal service providers.


Legal service providers consulted during this study provided some insight into the preferred modes of service delivery for older people.
The Queensland research team reported that negative experiences of older people in relation to legal practitioners included: “…communication problems, a lack of interest in older people's specific situations, negative public perceptions of the legal profession and excessive costs…”105 These negative reports were echoed by a number of older people making submissions to the Law and Justice Foundation. However, it should be noted that many older people contacting the Foundation did so after a public call for submissions from people experiencing legal problems. This influx of poor reports then, were from a pool of self-selecting participants with, on occasion, a series of legal problems, including problems with lawyers.

Communication problems

Many of the older individuals making submissions for this project commented on communication difficulties when it came to dealing with lawyers.


One participant in the Older Men: New Ideas focus group said that one of the reasons why he does not consult lawyers is the legal language used, which is full of jargon. He did not understand why they had to use this language, which made things appear more complex.107

Some callers indicated that solicitors did not take the time to explain matters fully to them.


Neglecting to take the time to fully detail the various options for substitute decision-making can have a severe effect on those older people on fixed small incomes.
The pensioner had saved money to invest in legal assistance and the prospect of having to repeat the experience because she was possibly given incomplete advice was difficult for her to contemplate.

Some callers reported that accessibility to their legal practitioner for the purpose of communication was a problem.


In her guide to Communication Skills for Working with Elders, Barbara Dreher discusses the inappropriateness of conducting business-like interviews with older people, stating that such interviews yield limited responses, and will often result in important information being missed. The importance of adopting an empathetic approach is emphasised, so that a relationship of trust is established. This will result in a higher quality of information exchanged, and ultimately more effective advocacy on behalf of the older client.111

Dreher also stresses the importance of not attempting to rush an older person into making a decision or providing instructions.112 Older people need more time to process information and make decisions than younger people, and this needs to be factored into the provision of legal advice and assistance for older people.

Cost issues

Whether it is assumed or experienced, many older people operate under the belief that access to quality legal services are beyond their incomes.


And,
Many submissions noted the apparent lack of value for money.
This dissatisfaction with the lawyer's reliance upon the client to 'do the groundwork' may be an indication of a misunderstanding of the lawyer's role, which may contribute to negative public perceptions of lawyers. Alternatively, it may also present a basis for suggesting that lawyers who provide services to older people need to provide a greater level of servicing and assistance, and need to bring a particular specialist service for such clients.

Other participants reported that solicitor's fees were misrepresented to them and that the amount was severely underestimated in the initial advice they received.


And,
Some submissions revealed an opinion of lawyers as disreputable, based on a perceived compulsion to accumulate money. A participant in the Older Men: New Ideas focus group said that he would not consult lawyers because of the cost. There was general consensus within the group that they believed that legal costs associated with lawyers and courts were not affordable for them. One participant recounted seeing in the news a lawyer who received $5,000 per day in court, and was put off by such exorbitant fees. Another focus group participant said that he did not want to see lawyers because they were just after as much money as they could get out of him (the participant), and they would devise reasons for him to go back to them so as to pay more fees.121
Many submissions by older individuals addressed the issue of no-win no-fee arrangements, proffered by lawyers to those without the immediate funds to pay for legal assistance. Usually, because of the risk to the lawyer taking on the case, they will not do so unless there is a good chance of success and charge more to cover their risk.

One caller also felt that large, powerful defendants are apt to discourage lawyers from entering into no-win no-fee arrangements.


And,
The consultation with Caxton Legal Centre in Queensland revealed that no-win no-fee arrangements pose real access to justice issues for clients with any alternative options.
Perceived lack of interest

The Queensland research127 into legal service provision to older people also indicated that older people felt lawyers were not interested in their problems. Submissions made by older people to this project resonated with that research.


Much of the criticism from callers related to lawyers being more interested in money than the clients.


Problems in legal service provision


Family members of older people

An issue raised by a number of different service providers with older people as clients was that providing assistance to the older person via their family members can cause a variety of concerns for both the older person and the practitioner.


Complaints against lawyers

Many submissions from individual older people noted that they had, or would like to complain about the solicitors they had retained.


A number of callers highlighted the problem of securing a solicitor to represent them or assist them in making a complaint against other solicitors.
Others claimed the Law Society was less than helpful in facilitating complaints by individuals. The hardship produced for the individual frustrated in engaging in a complaint system against lawyers, that gives them little or no satisfaction, clearly can affect their willingness to consider accessing the legal system as a form of redress in the future.
When solicitors are understood as the mechanism by which people have access to justice, being confronted by unfair or incompetent practitioners can be very disheartening for older people, particularly when it may be difficult to overcome feelings that they should not complain.
One caller, who reported being deceived by a lawyer in relation to his compensation payout, suggested a practical measure for reform, in the hope that it would create greater transparency for the individual.
Nowhere to turn for assistance

A few submissions to this project emanated from older people who were at an impasse. Having tried several different legal and non-legal mechanisms for redress, they were left feeling as though no method could help alleviate or solve their problems.



Free legal services


Many people over the age of 65 are not aware of the existence of free legal assistance, beyond Legal Aid grants.


Problems accessing legal aid


Tests of eligibility

In a consultation with Legal Aid NSW, the opinion was advanced that many older people would necessarily be excluded from accessing grants of Legal Aid. One reason for this is the high number of older people who own their own homes and live on a pension.


Clearly, the assets test would not be as onerous for people living outside of the Sydney metropolitan area, but for those living in the city, it is more likely than not that a home owner would not pass the assets test. This has a harsher impact on older people, who may not be able to secure a mortgage over their home due to small, fixed incomes. Similarly, the fact that older people are more likely to have money set aside for funeral arrangements than younger people, the inequity of taking account of funeral savings in the assets test militates against older people being eligible for grants of legal aid.

The Legal Aid Commission has some discretion in granting legal aid:


However discretionary decisions can leave older people in a position of uncertainty. Furthermore, a charge over an older person's home may not be as readily paid off as it may be by a younger person with the prospect of a reasonable income. Charges over houses can put older people in the precarious position of possibly losing their homes.

The policy's harsh effect was highlighted in a consultation with the Women's Legal Resource Centre.


People retiring on their accumulated savings and superannuation making submissions to this project also reported ineligibility for Legal Aid.
Furthermore, the issues for which older people seek assistance are often those which are excluded from legal aid assistance, due to the legal aid subject matter guidelines. As indicated in Table 3.1 above, the most common matters for which older people seek assistance from Legal Aid NSW are civil matters, namely housing, wills and estates, personal injury and consumer issues. For many of these matters, legal aid will not be available, or only available on a limited basis. By contrast, the proportion of inquiries from older people regarding the matters for which legal aid is often made available, criminal law and family law, is very low.

Ineligibility for Legal Aid can and does force people who have no other choice to represent themselves — sometimes to their detriment.

Limits of Legal Aid

Reductions in funding to Legal Aid over the years has created more stringent policies limiting its application, both on financial grounds and to various areas of the law. This can impact harshly on older people particularly, as they can be more vulnerable than other groups.

For example, Legal Aid policy changed recently to exclude grants of Legal Aid to people applying for Apprehended Personal Violence Orders (APVOs).149 These are orders that restrict the access and or behaviour of people who are not in a 'domestic relationship' with the person in need of protection. As older people are less likely to be in the workforce, they are more likely to spend time at home which increases the chances of them being embroiled in a neighbourhood dispute. This policy means that if they need to apply for an APVO to protect themselves from a violent, threatening or harassing neighbour, they will not have the benefit of Legal Aid assistance.

In turn, the policy may create greater resource pressures for Community Legal Centres, as older people, among others, will likely require assistance to apply for APVOs.


Limits on eligibility due to means and assets tests can mean that older people who are marginally more financially secure fall through the cracks — those that cannot afford private legal services, do not feel confident to represent themselves and are ineligible for Legal Aid funding.
One caller had been involved in a neighbourhood dispute. She was forced to represent herself as,
Despite the fact that Legal Aid gives free initial legal advice, their limited financial resources also means that their ability to address all problems is commensurably limited.
Uncertainty

The uncertainty of whether or not Legal Aid will be granted can produce great stress for older people, particularly in circumstances where family members are involved:



Problems accessing Community Legal Centres


One theme that emerged from consultations for this project in relation to community legal centres (CLCs) was the importance of having workers that are from, or sensitised to the issues affecting, the target audience for the service. The effects of this are two-fold. Firstly, it enriches the management of the legal centre, guiding the direction of program initiatives. For example, a Caxton Legal Centre worker explained the inception of their focus on older people and the law:
Secondly, it makes the centre more attractive to the target audience, because the perception is that there is someone familiar that will assist them.
The other main issue raised was one of resources. This necessarily limits the delivery of services that can be tailored to meet the needs of older people.
It also means that there are simply not sufficient staff and time to deal with client demand.
Another problem that flows from having very limited resources for community legal centres is the limits it places on the capacity to advocate more fully on a client’s behalf as well as represent them in court. If Legal Aid is not available for an older person, and the community legal centre they see has a full caseload, then either older clients have to come up with the money to pay for a private solicitor, represent themselves, or decide not to engage with the legal system — if it is possible to do so. Some submissions to this project by older individuals addressed this issue:


Conclusion


This chapter has detailed the submissions received from older people in relation to accessing legal assistance and their relationship to the legal system. It also reports on the experiences of legal service providers and some peak organisations on their experiences of older people engaging with the solicitors — whether private, Legal Aid or community legal centres.

Many of the obstacles in accessing legal services emanate from features of the current cohort of older people. Although these are necessarily generalisations, and some are contradictory, these can be briefly summarised as follows:


These attitudes can be viewed as barriers to accessing legal assistance for older people. For legal service providers wanting to target their services toward older people, these cohort features will require due consideration.

It is clear both from previous research and submissions made by older people that their needs in terms of legal service delivery are not so great that they cannot be negotiated. They are as follows:

For those older people who cannot afford the services of private solicitors, they need to be able to access free legal services that can address legal problems that are of particular significance to them. Many service providers and older people alike expressed that there was a gap in service provision to older people and that a 'one stop shop' was required.


Ch 4. Accommodation


Introduction


The importance of housing and accommodation is amplified with ageing. According to the Australian Housing and Urban Research Institute (AHURI), the housing situation of the aged is the culmination of a lifetime of opportunities and obstacles.1 Legal issues for older people relating to accommodation and housing reflect the distinct nature of accommodation and housing options that are prevalent amongst older people. Unlike younger people, older people are often more restricted in their accommodation options, either due to physical incapacity, cost, need for caring arrangements, or widowhood. In addition, while an older person’s housing may meet their accommodation needs at a particular point in time, these needs can change dramatically with the ageing process.

According to the Australian Bureau of Statistics, older people place a high value on their home environment, as they are less likely to be in full-time employment, and consequently more likely to spend more time in their home, and in their immediate neighbourhood, than at any other period in their lives.2 In 1996 in NSW:


Given the distinct housing issues confronting older people, such people face a range of legal issues relating to accommodation which are both common to other age groups, and also unique to their particular situations. Legal issues relating to the following accommodation types, in particular, will be considered:


Nursing homes and residential aged care facilities


Nursing homes are those premises where residents are provided with nursing care for a fee, and who are recuperating from illness or childbirth and who require nursing care, or who require nursing care on account of age, infirmity, chronic ill-health or other condition.4 They include private for-profit nursing homes, private not-for-profit nursing homes and public sector nursing homes. All private sector nursing homes in NSW are licensed under the Nursing Homes Act 1988 (NSW). Private not-for-profit nursing homes, public sector nursing homes and most private for-profit nursing homes also operate under the Aged Care Act 1997 (Cth), so that they can receive Commonwealth accommodation and care subsidies. These homes which receive Commonwealth funding are also known as residential aged care facilities (“RAC facilities”).

In NSW, as at 30 June 2002, there were 48,962 permanent residents in 934 residential aged care services. Of these:



Areas of concern for consumers of nursing home services and residential aged care facilities


Security of tenure and fair trading

According to the New South Wales Council of Social Services (NCOSS), under the current legislative framework, nursing home and RAC facility residents are afforded inadequate security of tenure, making them vulnerable to eviction. NSW Health states that under the Aged Care Act 1997 (Cth), a resident faced with an eviction decision bears the onus to initiate action to appeal and defend the decision.6 Under the Nursing Homes Act 1988 (NSW), while there is no explicitly stated protection of security of tenure of residents, there is still a requirement that, in situations of eviction, the provider assist in finding alternative accommodation for a resident if so requested.7

Contractual issues

The Aged Care Alliance expressed concern that the contractual and financial arrangements regarding nursing homes are often confusing to older people, who may not be aware that they are entering into arrangements that are not in their best interests.8 Particular areas identified included:


The Aged Care Rights Service reported that in 2001/02, of the 1150 advices it provided in relation to nursing homes, hostels and residential aged care, 69 per cent were for issues relating to fees, charges, and entry payments.12

Abuse and neglect within nursing homes

The Combined Pensioners and Superannuants Association of NSW (CPSA) has expressed concerns regarding continuing reports of the poor state of some nursing homes and RAC facilities, and the lack of legislative protection for nursing home residents from ill treatment. The Association asserts that low bed numbers, shortage of staff, especially qualified nurses, and a legislative framework which was not designed to address issues of abuse and neglect, are major factors contributing to incidences of abuse and neglect in nursing homes and RAC facilities.13

Others concerns raised were:


Financial abuse

Incidents of financial abuse in residential aged care services were reported by some contributors. Reports of residents losing most of their pensions to nursing homes' fees and charges, as well as residents receiving excessive pharmacy bills were received. It was noted that many aged residents find it difficult to check the validity of the bills, charges and fines they receive, making them vulnerable to financial abuse.16


Medication and restraint

The Private Health Care Branch of the Health Department and the Health Care Complaints Commission have expressed concerns about what appears to be a systemic problem with the prescribing, administration and reviewing of psychotropic medication in aged care facilities. A 1995 study of 46 nursing homes in the Central Sydney Area Health Service concluded that the percentage of residents in Central Sydney nursing homes who were taking psychotropic drugs was among the highest reported from geriatric institutions worldwide.18 In 1996, a NSW Ministerial Taskforce confirmed the widespread use of psychotropic medications in nursing homes, and that physical and chemical restraint were commonly used for behaviour management. The Taskforce confirmed that despite the fact that such practices breach the rights of residents and have potentially harmful consequences, restraint was often regarded by providers as an 'easier' and less expensive way of managing difficult behaviour than appropriate behaviour management strategies.19

The NSW Department of Health reported that claims have been made that the use of restraints continues to be a major problem in nursing homes in NSW, due to:


Access to clinical records

According to NCOSS, residents' access to medical and care records is a necessary pre-requisite to the protection of their rights within nursing homes. It expressed concerns that the Aged Care Act 1997 (Cth) fails to provide for satisfactory access to clinical records by residents of residential care services.21 Resident advocacy groups in NSW have expressed concern to the NSW Department of Health Review of the Nursing Homes Act 1988 (NSW) that the right that nursing home residents currently have to access their clinical records will not be replaced if the Act is repealed.22

Right to equipment, appliances and materials

NCOSS has expressed concern regarding reports that unscrupulous providers charge residents for equipment and materials that are paid for under the Commonwealth subsidy, even though provision of these items is a mandatory part of the care that is supposed to be provided.23 Such practices appear to be in breach of the Nursing Homes Regulations 1996 and Schedule 1 of the Commonwealth's Quality of Care Principles 1997, which specify that facilities and equipment must be provided to residents of nursing homes. Some advocacy groups have expressed concern that this demonstrates deficiencies in the systems of montitoring compliance under both the State and the Commonwealth regulatory regimes.24



Dispute resolution


Residents of residential care facilities in NSW have three mechanisms they can use to make a complaint about a facility or the care they receive:
General descriptions of the roles and processes of the Department of Health Private Health Care Branch Complaints Team and the HCCC are detailed in Chapter 5 on Health. However, the roles of these bodies in resolving disputes regarding nursing homes are considered below.

Commonwealth Aged Care Complaints Resolution Scheme

The Commonwealth Aged Care Complaints Resolution Scheme (ACRS) involves two levels of complaints resolution — an internal and an external complaints resolution system:

Internal complaints resolution system

Under the Commonwealth Act, all providers of residential services are required to establish a process to deal with complaints at the service level.

According to Sandra McCullough of the Victorian Residential Care Rights Advocacy Service, the quality and effectiveness of these internal complaints resolution mechanisms vary greatly, and only a minority appear to provide fair, accessible and effective systems.25


External complaints resolution system

Where an internal complaints mechanism is ineffective in resolving a consumer concern, a complaint may be lodged, either orally or in writing, with the Complaints Resolution Scheme (CRS) of the Department of Health and Ageing. The complaints may be about anything relating to residential care that affects a person who is receiving or is eligible to receive residential care services. The CRS has a discretion as to whether to accept a complaint, or reject it where it considers it to be frivolous, vexatious or not made in good faith, or where the complainant has initiated legal action.

The scheme involves three stages — negotiation, mediation and determination. Where negotiation and mediation fail, the matter is heard by the Complaints Resolution Committee, where a decision will be made as to a process for resolving the complaint. Where a provider does not act upon the Committee's decision, the matter is referred to the Commonwealth Department for action. The matter is concluded when resolution is achieved and all parties are informed of the outcome.27

The focus of the system is on resolving the complaint through negotiation and mediation. It is not the role of complaints units to substantiate a complaint or take an investigatory role. Units can accept anonymous complaints, however resolution becomes more difficult where only one of the parties is identified.

There is reasonable satisfaction with the complaints process when mediation is able to restore breakdowns in communications and relationships with the provider. However, identified problems with the CRS process include:

NSW Department of Health, Private Health Care Branch

The NSW Private Health Care Branch (PHCB) complaint process focuses on complaints about standards of service and care in licensed facilities. These include issues about staffing, quality of premises, equipment, furniture and facilities in the service, and quality of care. The PHCB focuses on local resolution of issues between facilities, residents and their relatives and will refer complainants back to the facility in question for resolution if they have not already attempted resolution with them first.

The NSW PHCB has the power to investigate complaints, including the ability to act on anonymous complaints, enter facilities, and examine and remove relevant records and documents. However, they cannot compel staff to talk to them as part of their investigations.

NCOSS reported that the PHCB enjoys reasonable standing as a complaints body from both service providers and consumer bodies.29

NSW Health Care Complaints Commission

The NSW Health Care Complaints Commission (HCCC) has the power to investigate any complaint about a health service provider, which includes residential care facilities providing health services. The HCCC deals primarily with complaints relating to the professional misconduct of health care practitioners and the clinical management or care of individuals by health service providers. The HCCC has the power to investigate complaints, to refer complaints to the Health Conciliation Registry for conciliation, and to refer complaints to registration boards, practitioners and employers for investigation.

The HCCC will not act on an anonymous complaint unless there is clear evidence of a systemic problem that needs to be investigated.

In 2001/2002, the HCCC received 46 complaints relating to nursing homes, which represented five per cent of the total complaints received by the Commission for that period.30

Issues for consumers

NCOSS reported that while it is important to have as many avenues for complaints handling as possible available for vulnerable consumers, the maze of mechanisms can present problems. It emphasised that there is a need for a co-ordinated and cohesive mix of complaints handling mechanisms which can appropriately respond to a range of issues and complaints.31

Other identified barriers to using the complaints resolution mechanisms include fear of retribution from the service provider or the provider's staff, and also a sense by consumers that it is ungrateful to complain, when they feel that most staff may be overworked and stressed.32 Residents and their families are often anxious about the lack of accommodation options which are suitable, convenient and appropriate, and accordingly may be fearful to complain about their present arrangements.


The NSW Department of Health further reported that there have been concerns that reliance on the co-operation of, and conciliation with, service providers is placing too much emphasis on the "soft" end of complaints resolution, and that there needs to be a greater willingness to wield more coercive powers of investigation and sanction.34


Available advocacy and assistance services


The NSW Department of Health Review Issues Paper stated that consumer advocacy groups play an important role in assisting people in nursing homes to protect their rights. Proprietors of services are required to allow advocacy groups to access residential services during normal working hours or at any time if a resident or their representative has asked the advocacy service to do so.35

NCOSS also emphasised the importance of advocacy, expressing concern about the capacity of existing advocacy organisations to respond in the face of increased demand for assistance from residents in nursing homes.36

The NSW Aged Care Rights Service (TARS) was specifically established to provide advocacy and assistance for residents of Commonwealth funded nursing homes in NSW. TARS also provides information telephone services and workshops for residents. TARS has reported that 88 per cent of its 1558 advices and new cases in 2001/02 related to issues involving nursing homes, hostels and residential aged care.37

The following agencies provide a range of printed, online and telephone information services to residents and prospective residents of nursing homes:



Retirement villages


Retirement villages are complexes containing residential premises that are predominantly or exclusively occupied by retired persons (i.e. people over the age of 55 years who have retired from full-time employment) who have entered into village contracts with an operator of the complex.41 Unlike aged care facilities, retirement villages operate on the basis of residents caring for themselves and being self-funded.

The exact number of residents in retirement villages is difficult to estimate due to the fact that many villages are not registered, and new villages are regularly being established. The NSW Office of Fair Trading estimates that in NSW there are in excess of 35,000 residents living in some 700 retirement villages.42 TARS estimates that the number of retirement village residents in NSW exceeds 50,000.43

There are four main types of tenure for residents of retirement villages:


The two most common forms of tenure for retirement villages are lease and loan/licence.


Areas of concern for retirement village residents


The form of occupation

According to TARS, many residents who have tenure under lease or loan/licence arrangements are under the mistaken belief that they 'own' their premises. This confusion largely arises as a result of residents having sold their former home and then paying a considerable portion of the funds of the sale as an 'entry contribution' into the retirement village, for the right to reside in a property in which they only have a leasehold interest. The most common complaint arising from this situation is that a solicitor has failed to adequately explain the terms of the occupation under the contract.44 Other issues raised through the consultations undertaken in this project include:


TARS reports that 27 per cent of its inquiries relating to retirement villages are in relation to exploring alternative retirement village options.48

Disputes over recurrent charges

As village residents are participating in a form of communal living, they are liable for the operating costs of the village by way of a monthly levy payment. If the village has extensive facilities or plans to provide additional facilities, this payment can be substantial, with the possibility of it being increased annually. For residents on pensions, fixed incomes, or self-funded retirees, the fees and the prospect of them increasing may cause significant difficulties.49 While details of recurrent charges will be included in the contract, and also in the disclosure statement, details about these charges may be unclear and confusing for older people with limited experience in reading financial statements or budgets.

Particular concerns were expressed regarding:


The majority of villages will present a Statement of Proposed Income and Expenditure annually to residents, which will specify the costs associated with operating the village facility to be expended out of the recurrent charges. It is necessary for the operator to present the statement to the Village Residents Committee, which can either accept or reject the statement. If the statement is rejected, an application can be made to the Consumer, Trader and Tenancy Tribunal (CTTT) to resolve the dispute. The most common items of expenditure which are disputed are:


TARS reported that 10 per cent of its inquiries and new cases in 2001/02 which relate to retirement villages were specifically on the question of fees and charges.52

Disputes over departure fees

Most retirement village contracts contain provisions relating to 'Departure Fees'. This is usually a percentage of the entry contribution retained by the operator when the resident departs from the village. The percentage is usually 2.5–5 per cent per annum for a period of either five or 10 years, calculated on a daily basis. Several participants during the consultation process indicated that residents have previously expressed confusion over the method of calculation of such fees, and concerns regarding the size of the departure fees where the resident has had to leave a village soon after moving in.53

Disputes over refund of entry contributions

Under the Retirement Villages Act 1999 (NSW), a former occupant of residential premises in a retirement village, who did not own their premises, is required to receive a refund of their entry contribution, less any monies owed, within six months of vacating the premises.54 TARS reported examples of contracts which provide that refunds of entry contributions to a departing resident are dependent on the receipt of an entry contribution from an incoming resident. These situations can cause significant hardship, where residents have to move to other accommodation, and still remain liable for recurrent charges until their former premises are sold. At the same time they may have to pay the fees in their new residential facility.55

The difficulties associated with such contracts have been accentuated by a recent Residential Tribunal decision. The Tribunal held that in spite of the fact that most residents do not have a proprietary interest in their premises, the former occupant in this case was bound by their contract which contained a provision that the refund of the entry contribution is 'wholly dependent on the amount paid by an incoming resident'.56

Disputes over other contract provisions

The following issues which are usually covered in village contracts have been identified:


Damage to premises and maintenance

Disputes between residents and operators relating to responsibility for maintenance and repairing damage to premises, and delays in getting repairs carried out are not uncommon. Often residents believe that as lessees or licensees, they do not have an obligation to pay for the reasonable maintenance of the village out of the recurrent charges.59

The Department of Fair Trading has advised residents that the operator is responsible to pay out of its own funds for the replacement of fixed items of capital within the village, including fixed items of capital in the premises of residents (unless the damage was caused by the resident or their guests, beyond normal wear and tear). This includes replacing carpets, hot water systems, and stoves. In relation to non-fixed capital items such as a village bus, lawnmowers, tables, chairs, whitegoods, portable air conditioners, filing cabinets, computers, fans and curtains, the operator can use the recurrent charges paid by residents, or its own funds, to replace the items. If the operator wishes to spend recurrent charges in this way they must specify the item and the amount in the Statement of Proposed Expenditure given to residents before the start of each financial year. The consent of residents is then required. In relation to maintenance of either fixed or non-fixed capital items, the operator can allocate funds when preparing a Statement of Proposed Expenditure, either from recurrent charges or from the village's long term maintenance fund.60

TARS reports that it has received inquiries from residents who have executed contracts with an operator, requiring them to pay for the cost of structural rectification of their premises, necessitated by damage caused by termite infestation. In spite of this, TARS reports that many solicitors do not recommend to applying residents that they obtain pest inspection reports prior to signing their contracts.61

TARS also reports that a failure on the part of an operator to maintain the village is a major area of dispute between residents and operators, and constitutes a withdrawal of services on the part of the operator.62

Disputes regarding village rules

As retirement villages are a form of communal living, there is a requirement that residents comply with a set of village rules. Under the Retirement Villages Act 1999 (NSW), village rules may address the following issues:


The main areas of dispute which arise concerning village rules are:
Investment risk and financial viability of operators

TARS cited examples of village mismanagement which has resulted in significant losses of entry contributions by residents. A lack of prudential protection in the Retirement Villages Act 1999 (NSW) places a heavy onus on applying residents to obtain information and advice regarding the financial viability of the operator.65


Variation of services

Situations where either residents or an operator propose a variation in services are a commonly reported area for disputes between operators and residents. Reduction in services can include reductions in the use of the village bus, closure of a dining room, reduction in care staff, and so on.67

Village rental accommodation projects

The Older Persons Tenants' Service (OPTS) and TARS reported that a new type of aged rental accommodation in villages has become available. The projects have similar features to retirement villages, but are not strictly retirement villages and operate outside of the provisions of the Retirement Villages Act 1999 (NSW).

According to OPTS and TARS, the projects involve a corporate entity developing village style accommodation under a strata title. Individual units are then sold to investors who lease the units back to the entity. The entity then sub-leases the units to aged residents on a standard terms residential agreement prepared by the entity. According to TARS, all units are rented, with tenants paying 85 per cent of the standard aged pension plus 100 per cent of their rent assistance allowance. TARS and OPTS report that the residential agreement with the entity will also include some additional clauses covering such things as the provision of three meals a day, provision of clean linen, special termination provisions and cleaning fees.

At the time of writing, eight of these aged accommodation projects were in operation across regional NSW, with a total of 412 units. According to OPTS and TARS, the following issues of concern have been raised with these accommodation projects:


The OPTS advises that disputes involving these projects need to be resolved by applying to the CTTT.68


Dispute resolution


When the Retirement Villages Act 1999 (NSW) was introduced, the Residential Tribunal had jurisdiction to resolve disputes arising under the Act, between residents and the village operator. The Act also conferred an unlimited monetary jurisdiction.69 The jurisdiction of the Residential Tribunal was merged with the Consumer Trader and Tenancy Tribunal (CTTT) in early 2003.70 Applications for orders to the CTTT can be made in respect of the following issues:
Issues for residents

The CTTT adopts a less formal, expedient approach to dispute resolution, thus making it a more accessible means of dispute resolution than the formal court litigation process. It is not bound by the rules of evidence, but is required to adhere to the principles of procedural fairness.72 The CTTT will usually not award costs against an unsuccessful party.73

However, there are some issues with the Retirement Villages Division of the CTTT which present difficulties for older people:



Available advocacy and assistance services


TARS provides a legal advocacy service for residents of retirement villages, as well as providing information telephone services and workshops for residents. Of the 1,300 advices provided by TARS in 2001/02, 11 per cent related to retirement villages.

The NSW Office of Fair Trading provides a range of printed and web based information concerning the rights of residents in retirement villages, including:


Printed and online information is also available from the It's Your Life Retirement Village Information website.79 Apart from basic online information about retirement villages and related issues, It's Your Life also produces a Retirement Village Handbook, a consumer guide to resident funded retirement villages in Australia. Topics covered include the different legal structures, departure fees, service charges, stamp duty, GST, refurbishment and capital replacement costs, security of tenure, operator default, termination, vacating the premises, capital losses, credit risk, parking, documentation and summaries of the retirement village legislation in NSW, Queensland and Victoria.

Some online information regarding retirement villages is available for residents from the website for the Retirement Villages Association of Australia (RVAA).80 However, the principal purpose of the RVAA is to represent retirement village owners and managers within the private sector. It provides accreditation to villages which meet the building and service standards set by the Association.

The Retirement Villages Residents' Association (RVRA) is a non-profit, volunteer-run organisation which provides basic information, advice and referral for assistance to retirement village residents. The Association publishes a quarterly newsletter, and also provides basic telephone advice from other village residents. The RVRA aims to:


The Council on the Ageing (COTA) provides printed information about retirement villages, including details about contracts, services and costs of individual villages.


Home units under strata title


As mentioned above, according to the Australian Bureau of Statistics 1996 population census, 14 per cent of people over the age of 65 years in NSW live in private dwellings which are flats, units or apartments (compared to 11.4 per cent of people aged under 65 years). Of the 96,400 people aged over 65 living in private flats, units or apartments, 52 per cent were aged 65–74 years, and 39 per cent were aged 75–84 years.81 The overwhelming majority of these residents live in units which are governed by strata title schemes.


Areas of concern for residents in strata title units


Problems relating to strata title units, body corporate bodies and managing agents were some of the most commonly reported issues by older people who directly contacted the Foundation as part of the consultation process for this project. Three of the most common issues reported are discussed in turn below.

Unscrupulous or ineffective body corporate managing agents

Many individual contributors reported examples of managing agents charging excessive fees, in return for delivering very few services. Examples of managing agents' dereliction of duties included failure to forward insurance claims, providing 'kick-backs' to tradesmen and suppliers, and failure to repair common areas.


Influence of investor owners on body corporate bodies

Contributors also reported examples of older people who are strata title resident-owners who find that other units in their complex have been purchased by investor-owners. In such situations, the investor-owners may constitute the majority on the body corporate and propose resolutions for external renovations or improvements to enhance the investment value of their properties. The resident-owners will then have to incur a substantial charge as part of their share, even though they may not have voted in support of the capital improvements. For older people who are on pensions or are self-funded retirees, who have no interest in increasing the capital value of their home, such charges may be prohibitive.


Lack of information and advice regarding body corporate issues

Individual participants reported that there was little information and advice available to residents regarding their rights and duties in relation to strata title schemes and body corporate bodies.85



Dispute resolution


The Office of Fair Trading provides a mediation service for disputes related to Strata living through the Strata Schemes and Mediation Services Branch. If mediation has been attempted and has failed, then parties can apply for a decision from an adjudicator in respect of the following types of disputes:
If a party is unhappy with an adjudicator's decision he or she can appeal to the CTTT within 21 days of the order coming into effect.87


Available advocacy and assistance services


The Office of Fair Trading website provides information regarding issues which arise in strata living situations, including obtaining access to the records of the owners' corporation, dispute resolution, mediation, adjudication, and applying to the CTTT.88

The Home Unit Owners Association of NSW represents and advises proprietors and office bearers in both commercial and residential strata schemes.



Public housing tenancy


According to the Australian Bureau of Statistics 1996 population census, 5.6 per cent of people aged over 65 in NSW lived in dwellings rented from the Department of Housing. This amounted to some 36,800 older people and represented almost half of the total number of older people who lived in rented dwellings. While older people are more likely to own their own homes, those that do rent are more likely than other age groups to rent from the Department of Housing.89


Areas of concern for older public housing tenants


The Combined Pensioners and Superannuants Association of NSW Older Persons Tenants' Service (OPTS) advised of six commonly reported issues for older public housing tenants which are discussed in turn below.

Long waiting lists for public housing

Long waiting lists for public housing makes it difficult for older people to transfer to public housing, or to move to another area.

Overly rigid eligibility criteria

The eligibility criteria for public housing applied by the Department creates difficulties for older people in their 70s. The OPTS reported that people in their 70s applying for public housing may be told by the Department to apply for private tenancy accommodation if it considers that the older person is sufficiently physically mobile to be able to search for such accommodation options. The OPTS reported that the demands that such Department eligibility guidelines place on older people to look for alternative tenancy accommodation fails to take account of their frailty and vulnerability, and may amount to indirect age discrimination. Of the specifically designated public housing inquiries received by OPTS, 41 per cent related to issues about applications for public housing or applications for priority listing.90


Delays in the Department carrying out repairs to units

The OPTS reported that it is seeing an increased number of inquiries relating to the lack of repairs carried out by the Department of Housing, often due to inefficient bureaucratic processes. It reports that many of these inquiries are from long-term residents, where the premises are run down. These cases are often complicated where the aged tenant does not live on his/her own, but instead lives as part of an extended family. The OPTS reported that in such cases the Department will not do the structural repairs and will not transfer the family. Instead they offer to transfer the tenant only, and refuse to acknowledge the full household composition. The OPTS reported that it is difficult to run these matters in the CTTT as the repairs required are often worth more than $10,000, and the older tenant cannot afford to obtain independent building evidence.92

OPTS reported that 16 per cent of its overall inquiries in 2002–2003 related to complaints about repairs, although OPTS do not differentiate between public and private housing tenants in its data collection in relation to repairs.


Neighbour issues

The OPTS reported that these issues often arise from the fear and intimidation experienced by older people living in high density public housing, where they are in constant close proximity to residents who have high needs, such as people with psychiatric illness, young people or people who suffer from substance abuse.94

OPTS reported that 4 per cent of its inquiries in 2002–2003 related to neighbour issues, although it makes no differentiation between public and private housing tenants in relation to its data collection on this issue.

Terminations

The OPTS reports that it receives complaints regarding terminations of lease arising from the actions of a co-occupant who may be a younger relative in need of temporary accommodation.95

OPTS reported that 28 per cent of its overall inquiries in 2002–2003 related to termination issues, although, as mentioned, it makes no differentiation between public and private housing tenants in relation to its data collection on this issue.

Public Housing rental bonds

The introduction of rental bonds for public housing tenancies has meant that tenants on fixed or low incomes, including pensioners, face increased vulnerability to termination of lease based on rent arrears.96



Dispute resolution


Tenants or public housing applicants who are unhappy with decisions by the NSW Department of Housing can appeal to the NSW Housing Appeals Committee. Once an appeal is lodged a hearing date is set. The appellant can attend the hearing to explain their position, and can also be assisted at the hearing by an advocate or support person. Following the hearing, the Committee will make a recommendation regarding the Department’s original decision, which it will communicate to the Department and to the appellant within two weeks of the hearing. The matters which can be appealed to the Housing Appeals Committee include decisions regarding:
The Committee cannot consider appeals regarding the Department’s policies or about the way the Department delivers its services.98

For complaints regarding a failure by the Department to carry out repairs, a tenant can appeal to the CTTT.



Available advocacy and assistance services


There are 11 tenancy advice services in NSW, providing advice, advocacy and legal information services to private and public housing tenants on various tenancy related issues. Four of these centres are located in metropolitan Sydney (Bondi Junction, Chatswood, Campsie and Harris Park). The seven remaining services are located in rural, regional and remote areas of NSW. Three of these are designated as Aboriginal tenancy advice services.

In addition, the Combined Pensioners and Superannuants Association of NSW Older Persons Tenants’ Service (OPTS) provides tenancy advice, advocacy and assistance specifically for older people, on both public and private housing tenancy issues. According to statistics provided by OPTS, 23 per cent of the 258 inquiries they received in 2002/03 related to specific public housing issues. This does not include issues relating to rent, repairs, neighbour issues or terminations, for which OPTS does not differentiate between public and private housing tenants in their data collection.



Private Tenancy


According to the Australian Bureau of Statistics, 6.4 per cent of people in NSW aged over 65 (or 42,800 people) live in dwellings which are rented privately.99


Areas of concern for older private tenants


Identified areas of concern for older people are discussed in turn below.

State Environment Planning Policy 10 Applications

State Environment Planning Policy (SEPP)10 requires developers or owners wishing to strata existing company title blocks of units, or redevelop/refurbish existing blocks of units and boarding houses to apply for consent. Their application must address what impact their development will have on low cost rental accommodation in the local market. Applications are lodged with the local council and final approval is granted by the Department of Planning. In most cases consent will be granted with conditions. Conditions can include the following:


When councils receive development applications tenants are notified of that application. However as SEPP 10 applications are determined before any notices to terminate are issued, most tenants are not aware of the importance of contacting a tenants advice service or making a SEPP 10 submission to council. The OPTS reports that it receives regular complaints from older tenants who are facing termination after redevelopment approval has been granted, without any SEPP 10 submissions being made from tenants.100
Discrimination by real estate agents

Some aged housing organisations have reported situations of evicted older tenants being unable to secure other tenancies, due to discrimination by real estate agents, in situations where they are able to afford the tenancy.102

Lack of security of tenure in short term leases

The OPTS reported that it receives complaints from older people that even though they would prefer the security of a long-term 12 month lease, many are forced to enter into 3 month leases, particularly where there is an interest by the owner to develop the site.103

Rent increases

The OPTS reported that in 2002–2003, 17 per cent of the inquiries it received related to rent issues, almost half of which related to inquiries about rent increases being sought by landlords from their older tenants.104

Lease terminations

The OPTS reported that in 2002–2003, 28 percent of the inquiries it received related to termination issues, with the majority from long term tenants issued with 60 day termination notices. As stated earlier, OPTS makes no differentiations between public and private housing tenants in relation to its data collection on this issue. However, it reports that in many private tenancy situations, the tenants have lived in the premises for over 20 years, and that many are aged in their 70s and cannot afford to relocate in the immediate area. OPTS reported that often these are situations where the owner is wanting to develop the property. The OPTS states that in these circumstances, the landlord applies the same processes to terminate the lease for an older tenant, as it would for other tenants, with the expectation that the older tenant is equally able to find alternative accommodation, pack up their belongings, vacate the premises and move into new premises with the same ease as other tenants. The OPTS asserts that this is a form of indirect age discrimination, and that there is a need to build in a responsibility for landlords and agents, on giving notice to older tenants, to ensure that alternative accommodation is available for the older tenant.105


Landlords/agents accessing premises

The OPTS reported that in 2002–2003, six per cent of the inquiries it received were complaints about real estate agents and landlords, most of which related to complaints from older tenants of excessive visits to premises from landlords and agents. The OPTS observed that older tenants often experience a greater level of fear and intimidation from landlords who seek to access premises, and may therefore be compliant to such requests, and not assert their rights to quiet possession.107

Getting repairs to premises

The OPTS reported that it receives complaints regarding older tenants needing repairs to be carried out on their premises. As stated earlier, 16 per cent of inquiries it received in 2002–2003 related to complaints about repairs, although OPTS do not differentiate between public and private housing tenants in its data collection in relation to repairs.108

Protected tenancies

Protected tenants are those who live in controlled premises which come under the Landlord and Tenant (Amendment) Act 1948 (NSW). The Act gives tenants living in these premises greater protection against increased rents and eviction than other tenants in NSW. However, landlords of protected tenants are under no obligation to undertake repairs to premises. As no new protected tenancies have been created in NSW since 1 January 1986, most of the remaining protected tenants are older people who have been living in the same premises for many years.109

Issues facing protected tenants include facing pressure to vacate premises and difficulties in getting landlords to undertake repairs. The OPTS reported that 17 per cent of its inquiries in 2002–2003 related specifically to protected tenancies. It reported that it receives complaints from older protected tenants who perceive that they are being pressured by their landlords to vacate the premises, so that the protected tenancy will be terminated. This pressure may take the form of threats, intimidation, or not undertaking essential repairs and then seeking eviction on the basis of the property having fallen to waste, or needing to be demolished because it is unsafe.110

The OPTS stated that they are expecting to see an increasing number of protected tenants being ejected because of their age, and their inability to care for their property. In these circumstances, the tenant may not be aware that they are able to negotiate with the landlord for a compensation payment in return for the termination.111



Dispute resolution


Older residents who are in dispute with their landlord can usually apply to the CTTT regarding issues such as rent increases, lease terminations, delays in getting repairs to premises, and complaints about landlords requesting excessive access to premises. As stated above, the CTTT adopts a less formal, expedient approach to dispute resolution, thus making it a more accessible means of dispute resolution than the formal court litigation process.113 However, older people who are not granted leave for representation may be considerably disadvantaged, particularly when confronted with opposing litigants or their advocates who have experience in the CTTT, as mentioned earlier.114

In relation to disputes over rent increases for protected tenancies, the matter can be referred to the NSW Fair Rents Board for determination.



Available advocacy and assistance services


The tenancy advice services previously mentioned provide advice, advocacy and legal information to private housing tenants on various tenancy related issues. The CPSA Older Persons Tenants’ Service provides tenancy advice, advocacy and assistance specifically for older people on private housing tenancy issues. According to statistics provided by OPTS, more than 50 per cent of the 258 inquiries they received in 2002–2003 related to private tenancy issues.


Home ownership


Older people, more than any other age group, are likely to own their own home, or live in premises which are either owned or being purchased by a member of the household. In 1996, 79 per cent of people in NSW over the age of 65 lived in homes that were fully owned by a member of the household, and five per cent lived in homes where mortgage payments were still being made, as stated above.115


Areas of concern for older home owners


Areas of concern which were identified for older people who reside in homes which either they or others in their household own or are being purchased include:

Neighbour issues

Neighbour problems, particularly those relating to damage or nuisance caused by a neighbour's trees, were reported throughout the consultation process.


Guarantor issues

Problems arising for some older people who have agreed to act as guarantor for their adult children's loans were identified in consultations with Legal Aid NSW.118 According to Juliet Lucy Cummins of the Centre for Elder Law at the University of Western Sydney, older people are particularly susceptible to being persuaded to act as guarantors for their adult children who are in need of financial assistance.119 Older guarantors are vulnerable under Australian Guarantee Law, as often they are taken advantage of by younger, adult relatives without the creditor's knowledge. Even if a creditor has grounds to believe that the guarantor has been pressured into the arrangement, the courts may still find that the guarantor has entered into the contract freely.120


Real estate agent scams

The NSW Department of Ageing Disability and Home Care Committee on Ageing advised of situations where older people are vulnerable to undervalued property purchases by real estate agents. As older people are less likely to be aware of the value of their properties, they are vulnerable to real estate agents seeking to purchase their property at a price below its market value, and then re-sell it at a much higher price.123

Abuse of power of attorney

The Committee also reported examples of older people who have executed powers of attorney prior to entering hospital or temporary aged care, only to find that on returning home, their appointed attorney has abused their authority and sold the older person's house.124 This issue is dealt with more fully in Chapter 9, Substitute decision-making and end of life issues.

Informal family accommodation agreements

According to the Australian Bureau of Statistics, 20 per cent of those older people living in private dwellings in NSW also live in family households with their children, relatives or friends.125 In these situations, the older person may have entered into some informal family accommodation agreement, where s/he has transferred the title of their home, or other significant financial assets to their relative in consideration for a promise to provide accommodation, and possibly other care assistance. Often these agreements are private and informal, making it difficult to assess their prevalence in the community. Examples of these arrangements include:


Examples of disputes arising in such arrangements have been provided by the Legal Outreach for Older People (LOFOP) program at Caxton Legal Centre, and also Shelter NSW.126 The LOFOP program has indicated that such agreements can involve significant long term consequences which, if not considered at the time, can lead to serious disputes which can endanger the financial interest, security and independence of the older person. Issues which can affect the accommodation in the long term include:
In matrimonial property proceedings relating to the breakdown of the relative's marriage, an older person may be able to apply as an intervenor under section 92 of the Family Law Act 1975, to seek to protect his/her interest. In other jurisdictions, courts may also look at the common intention between the parties at the time of forming the agreement, and find a constructive trust may exist, so as to provide a remedy to the older person. However, according to Ros Monro of the Caxton Legal Centre:
The litigation process which an older person would need to initiate in order to protect their financial interest where the arrangement has broken down, is in itself a significant barrier. The cost of pursuing legal action, a sense of powerlessness against a younger person due to a relationship of dependency, a commitment to preserving family relationships at any cost, and the physical and emotional toll involved in any legal action, particularly those against relatives, make it extremely difficult for an older person to protect their interests in these situations.129


Boarders and lodgers


A boarder is a person living in a house, unit or hostel without the legal protection of a lease or other kind of contract. Features that often characterise boarding house accommodation include:
Older people make up a significant proportion of residents in boarding houses. A 1998 survey of 384 residents from 161 inner Sydney boarding houses in four local government areas found that 18 per cent of residents were aged over 60 years. In addition, 30 per cent of residents were pensioners, and contrary to the common perception of boarding houses being short-term accommodation, 71 per cent identified as being long-term residents.132 According to a 1998 survey of residents of licensed boarding houses for people with disabilities undertaken by the Department of Ageing, Disability and Home Care, 29 per cent of residents were aged 65 years and over.133


Areas of concern for boarders and lodgers


Lack of legislative protection

As stated above, boarders and lodgers do not have any statutory occupancy rights. Any occupancy rights they have arise from their individual oral or written agreements with the owner or manager of the premises. This can make boarders and lodgers vulnerable to such issues as evictions, tariff increases, security deposits and house rules.134


Termination

Termination of occupancy arrangements was a commonly reported issue amongst advocates and service providers for boarders and lodgers. According to the Boarders and Lodgers Action Group, boarders are rarely able to challenge termination notices due to the lack of statutory legal protections. This makes them vulnerable to short periods of notice to vacate premises. Issues of termination and short notice periods have also been raised by NCOSS, the Western Sydney Tenants' Service, and the Inner Sydney Tenants Advice Service.136


Tariff increases

Inadequate notice for tariff increases, and increases which are prohibitive for people on fixed incomes was commonly reported by service providers. The Office of Fair Trading has stated that there are currently no standards for assessing the fairness of a tariff charged in advance.138 The Boarders and Lodgers Action Group commented that a resident has a contract for their room only for as long as the period for which they have paid rent, most commonly seven or 14 days. An owner or manager can therefore increase rents on very little notice.


Security deposits

While there is no legal requirement to pay a security deposit, many boarding house owners require such a deposit, where they consider it necessary to cover the contents of rooms (e.g. blankets, table, chair, fridge, etc.). Usually, such a deposit is equivalent to the tariff for two weeks.140

The Boarders and Lodgers Action Group and the Inner Sydney Tenants' Advice Service reports that many boarders have difficulties in getting their security deposits returned. They cite examples of owners or caretakers not issuing receipts for security deposits, or where they do, a boarder/lodger losing his/her receipt and the owner/manager denying ever receiving a security deposit (particularly if there has been a change in the owner/manager).141

The Boarders and Lodgers Action Group also state that the ability of boarders and lodgers to get their security deposits returned often relies on the state of personal relations between them and their owner/manager. If there is hostility or an ongoing dispute, they may lose their deposit. While they may be able to apply to the Local Court for recovery of their security deposit, this rarely occurs.142

Maintenance and repairs

The Boarders and Lodgers Action Group stated that many boarders are concerned about the quality of their accommodation, commenting that many boarding houses are extremely run-down and unsafe. However, there is a fear among residents that if they complain about repairs and maintenance to the owner/manager, the local Council, or to tenancy services, they will be retaliated against and evicted. The Group state that some long-term residents will undertake repairs and maintenance to their own rooms, bearing the cost themselves.143

Disputes about house rules

The fact that boarders and lodgers share facilities and live close to each other requires house rules and mechanisms to ensure that the rights of all residents are known and respected. However, often residents are unaware of the house rules before moving in, even though they may have agreed to abide by the house rules.

The Boarders and Lodgers Action Group stated that disputes often arise where residents are unaware of the house rules until they have broken them, or where they perceive that enforcement or alteration of the house rules by the owner/manager is arbitrary and inconsistent.144

Access to rooms by owners/managers

The Boarders and Lodgers Action Group reports that one of the most common types of disputes in boarding houses is where an owner/manager has accessed a resident's room without warning, notification or reason.145 This also reflects the lack of legislative protection for boarders and lodgers.

Disputes with other occupants

The Boarders and Lodgers Action Group reports that the nature of boarding house accommodation, with shared living spaces, often leads to disputes between occupants, which can sometimes escalate into violent confrontations.146

Disputes over uncollected goods

The Boarders and Lodgers Action Group reported that where a boarder/lodger has been locked out of the premises, disputes can arise in relation to them retrieving their goods and personal possessions, particularly if the owner/manager claims to have incurred some cost for their storage. While a resident may take action in the Local Court for recovery, many residents, particularly those who are older, do not have the ability or resources to take such action.147

Disputes over owner/manager records of rent payments

The Combined Pensioners and Superannuants Association of NSW Older Persons Tenants' Service advised that it receives complaints from boarding house residents regarding disputes with owners/managers regarding rent payments. These concern situations where the owner/manager has failed to keep adequate records of rent payments received, and alleges that the resident has outstanding rent arrears. In these situations, the resident has very few options but to comply with the owner/manager's demands, or find alternative accommodation.148



Dispute resolution


Where a dispute arises between a boarder/lodger and the owner/manager, there is no access to an independent and informal dispute resolution process, which can resolve disputes quickly, such as the Consumer, Trader and Tenancy Tribunal (CTTT). Aggrieved residents can only pursue redress through either the Local Court or Supreme Court. The cost and complexity of such actions makes them inaccessible to many boarding house residents.149 According to the Inner Sydney Tenants Advice Service, the lack of an independent dispute resolution process can result in disputes becoming personal, with parties resorting to violence or other inappropriate ‘self-help’ remedies.150

Community Justice Centres are available to mediate non-violent disputes between residents, while applications for Apprehended Violence Orders may be made in disputes which have escalated into violence. For older people, specific assistance to access these processes is often needed.151



Available advocacy and assistance services


While general tenancy advice services are available to assist boarders and lodgers who may be in dispute with an owner/manager, there are few services available to specifically assist older people who utilise boarding house accommodation. The Older Persons Tenants’ Service, which is part of the Combined Pensioner and Superannuants Association of NSW, is available to assist older residents of boarding houses. However, it reports that demand for its services from older boarding house residents make up a very low proportion (less than one per cent) of their overall inquiries. The service attributes this to an overall disempowerment of boarding house residents, where there is an overwhelming sense of powerlessness to be able to address grievances they may have with an owner/manager. This may be due to an accepted history of itinerancy and its vulnerable status in terms of accommodation rights, an awareness of the lack of legislative protections for boarders/lodgers, or a lack of awareness of tenancy advocacy services which may provide some assistance.152

Groups such as Shelter NSW or the Boarders and Lodgers Action Group are able to promote the interests of boarders and lodgers and lobby for legislative change to protect their rights, but do not provide direct advocacy and assistance services for boarding house residents.



Residential parks


Residential parks include caravan parks, manufactured home estates and establishments often referred to as 'mobile home villages' or 'relocatable home parks'. For people whose principal place of residence is in a residential park, their rights and responsibilities as residents are governed by the Residential Parks Act 1998 (NSW) and the Residential Parks Regulations 1999 (NSW).153 In NSW in April 2002, there were 962 residential parks providing 26 169 permanent sites.154

According to the Combined Pensioners and Superannuants Association of NSW Parks and Village Service (PAVS) NSW a high proportion of park residents are older people on fixed incomes. For many older people, the option to live in a residential park represents an affordable lifestyle choice for retirement. PAVS reports that many retired people will invest their superannuation or the proceeds from the sale of their house in a small home or van and annexe on a rented site, in a location where they have previously spent holidays and thought affordable.155 While researchers and statisticians use different definitions of residential parks, the Australian Bureau of Statistics estimates that across Australia, one per cent of people aged over 65, or 16,200 people, were usual residents of caravans, cabins or houseboats (note this does not include manufactured homes).156 Some have estimated that in NSW, the proportion of park residents over the age of 60 is 40 per cent.157 It is clear that significant numbers of older people in NSW choose to live in residential parks.



Areas of concern for older residential park residents


Park closures and redevelopment

The most commonly reported issue for aged park residents related to concerns about their rights where a park is to be closed, with PAVS reporting that approximately 70–80 per cent of inquiries they receive relate to park closure issues.158 PAVS reports that in the last two years, six residential parks have closed in NSW resulting in the loss of 350 long term sites. A further 12 residential parks are in the process of closing, which will result in the loss of an additional 1035 long term sites. A further 10 residential parks will be reducing the number of long term sites available, resulting in the loss of a further 258 long term sites. In addition, a further seven parks are earmarked for future development, which may result in the loss of a further 504 long term sites. The result is a possible loss of accommodation for nearly 3000 people.159

PAVS reports that many residents are unaware of their rights in relation to park closures, and this causes unnecessary hardship. In addition, PAVS reports that while the Residential Parks Act 1998 (NSW) contains provisions for compensation for residents for relocation, there are several shortcomings in the provisions. These shortcomings are detailed below under the heading Dispute Resolution.160

Three elderly women are permanent residents of a residential park on the North Coast. The park will soon be closed to be redeveloped, forcing the women to find alternative sites for their homes. As pensioners, the three women look at sharing utilities and equipment to save money. They have older style homes which are difficult to relocate. There are no other parks in the area which have such similar close access to shops and medical services. They are also unlikely to find three adjoining sites in a park, which will allow them to continue their communal living.161


Disputes over fees and charges

Concerns over excessive increases in site fees have also been reported to the PAVS, which reported that 13 per cent of the inquiries it received in 2002–2003 related to rent increases and fees and charges.162 PAVS reported that some retirees are paying up to 48 per cent of their pension to live in their home in residential parks on the central coast, and that many are applying to the CTTT to fight the fee increases.163

In addition, PAVS receives complaints that residents who previously were paying rental which included water charges, and since 1 January 2000, have been charged separately for water, did not receive a corresponding reduction in rent.164

Gladys and Bruce are a retired couple who sold their house and purchased a manufactured home on a residential park on the Central Coast. The site rental of $60 per week included water. Six months after moving in, the management installed water meters for each site, as the area was now under a user pays system. However, the $60 per week rental fee was not reduced, even though residents now paid for their own water. Six months later the manager put the rent up $5 per week to pay for the water meters.165


Disputes over park rules

The communal nature of residential park living makes it necessary for park owners to make park rules about the use, enjoyment, control and management of the park. The Residential Parks Act 1998 (NSW) requires that park rules are in writing and provided to residents at or before the time they sign an agreement for residence. Disputes over park rules, particularly where the owner wishes to change or add to the park rules, are not uncommon. PAVS reported that in 2002/03, five per cent of the inquiries it received related to disputes regarding park rules.166 Issues that may be covered by park rules include:


Denial of services

The Residential Parks Network reported that some park managers prevent taxis, delivery vans, ambulances and health services’ vehicles from entering residential parks. For older people in need of medical assistance, this could prove to be serious and life threatening. In situations where the park is not close to services, shops or public transport, older residents may be forced to walk substantial distances to catch a taxi or to collect delivered items.168



Dispute resolution


Consumer, Trader and Tenancy Tribunal

Section 128 of the Residential Parks Act 1998 (NSW) allows a resident who owns a movable dwelling with a rigid annexe, a relocatable home, or a manufactured home to apply to the Consumer, Trader and Tenancy Tribunal (CTTT) for an order for compensation for relocation from the park owner. If the resident has vacated the park and relocated to another park, s/he can seek an order for compensation for relocation costs within six months of vacating the site in compliance with the termination notice. The identified shortcomings of this process include:


Park Liaison Committee and Park Disputes Committee

Residential park owners are required to establish a Park Liaison Committee, the objective of which is to improve the lifestyle and well being of the park’s residents. Its functions include assisting the park owner to develop park rules, develop proposals for private mail facilities, develop standards of behaviour, and tree maintenance policies. In addition, a park owner must establish a Park Disputes Committee when a dispute arises over changes to park rules or when a matter is referred to the CTTT, or when parties agree that the Disputes Committee should resolve a particular dispute.170

If at least five residents disagree with proposed changes to park rules, they can apply to the park’s Disputes Committee to resolve the issue. If a resident is not happy with the decision of the Disputes Committee, s/he can appeal to the CTTT. The CTTT can also hear disputes about the legal validity of existing park rules.171



Available advocacy and assistance services


Tenants of caravan parks and mobile home estates are often unable to assert their rights because of both geographical and social isolation.

Having chosen a rural or semi-rural lifestyle without appreciating all the consequences, those residents find that they are often the victims of a double loss—the loss and decline of facilities and services within their park, and the loss and decline of facilities and services in local communities. Even where alternative facilities and services exist within reasonable geographical proximity, the limitations of age, infirmity, income and poor social supports make accessing those alternatives difficult.172

The Park and Village Service (PAVS) of NSW is a statewide service which seeks to ensure that tenants of caravan parks and mobile home estates are aware of and able to access their rights. PAVS is funded by the Department of Fair Trading under its Tenants’ Advice and Advocacy Program, and operates out of the Combined Pensioners and Superannuants Association of NSW. The role of PAVS is to provide:


In 2002/03, PAVS received a total of 571 inquiries relating to issues arising in caravan parks and mobile home estates. Of those who indicated their age, 94 per cent were over the age of 55.174

The 11 generalist tenancy advice services in NSW mentioned earlier also provide advice, advocacy and legal information services to residents of residential parks. As stated, four of these centres are located in metropolitan Sydney, and seven services are located in rural, regional and remote areas of NSW. Three of these are designated as Aboriginal tenancy advice services.

The Department of Fair Trading website provides some information regarding residential park residents’ rights, particularly when parks are to be closed. The website also provides information regarding types of agreements for residents, moving in, rent increases, gas/electricity charges, water charges, park rules, selling one’s home, moving out and compensation.175

The Parks and Village Tenants Association is a voluntary organisation which provides basic information and advice to residents of caravan parks and mobile home estates who are members of the Association regarding their rights and responsibilities as residents. The Association provides information and advice to residents on such issues as disputes with park managers, how to complain to the department of Fair Trading, and how to apply to the CTTT.

Many individual residential parks have residents groups which also provide basic information and advice to residents regarding their rights and responsibilities, and how to make a complaint to the Department of Fair Trading.



Conclusion


The importance of stable and secure accommodation for older people can make them exceptionally vulnerable to accommodation-related legal problems. Legal issues which may threaten the stability of accommodation arrangements may present a greater level of stress and anxiety to older people than other age groups.

The accommodation related legal needs of older people are not homogenous. Rather they reflect the diverse range of accommodation types available to older people and preferred by older people. The needs can be categorised in the following ways:


Accommodation-related legal issues for older people often require specialist knowledge on the part of advocates and service providers. However, the vulnerability of older people to more general accommodation related legal issues indicates a need for generalist services to be sensitive to the particular needs and issues confronted by older people in seeking assistance for housing related matters.


Ch 5. Health


With Australia’s population of older people increasing and expected to further rise over the next 50 years, there is a pressing need to look at health and the related legal implications that will arise from an older population. The 2001 Census found that people aged 65 and over in NSW comprised 13 per cent of the population.1 This is expected to increase to 17 per cent of the population in NSW by 2016.2 As well as increasing in absolute numbers, the expected life span for older people will also increase, with the 85 years and older population increasing more rapidly than other groups.3 As people age they become more vulnerable to ill health and disability. In 1995, 90 per cent of older people had experienced a recent illness, and virtually all (99 per cent) reported at least one long-term health condition.4 There is evidence that older people are the largest group of users of the health system:
In research conducted by the Commonwealth Department of Health and Ageing,6 46 per cent of older people believed that health was a major area of concern as they age. Given the distinct health concerns confronting older people, access to hospitals and health care services remain an important issue for older people, particularly in regards to patient rights.

This chapter will focus on various legal issues facing older people relating to health and the legal avenues available to older people to address these issues. The legal status of written instruments giving instruction as to desired medical treatment, known as Advance Health Care Directives, are discussed, together with barriers confronted by older people in using such advance and substitute decision-making mechanisms. The chapter also details some of the health related consumer issues which are likely to confront older people, including access to health services, quality of health services, hospital discharge practices and medication misuse.

It should be noted that many health related legal issues for older people take place in the context of health care provided by nursing homes. These have been partially dealt with already in Chapter 4, Accommodation.



Advance health care directives


Advance health care directives (also known as “living wills”) are written statements that contain information regarding a person’s instructions as to the type and extent of health care that they wish to receive in the event of losing the capacity to make decisions. They are similar to other forms of substitute decision-making such as powers of attorney. Whether or not an older person has made formal arrangements for substitute decision-making, it may be useful for the older person to make an advance health care directive. In addition to providing a mechanism whereby an individual can indicate a desire to refuse treatment in advance of losing capacity—advance health care directives can encompass decisions about the management of one’s affairs in the event of losing capacity.

There is no standard format in NSW for advance health care directives: they can consist of specific instructions as to what should be done in particular circumstances, or provide a general description of how the person would like to be treated.7 These can include:



The legal status of advance health care directives


In NSW advance health care directives are informal mechanisms that are not supported by legislation. Despite this fact, there are ways in which they may have legal force or limited legal effect.

Advance health care directives can be seen as strongly persuasive to health care providers and the Guardianship Tribunal, particularly if they are consistent and up to date.8 Advance health care directives are a useful addition to the Enduring Guardian provisions. Where the directives form part of the appointment of an enduring guardian, they can act as instructions to the guardian on how to exercise his or her functions, and serve as limitations on the guardian’s authority, especially where they are quite specific. However, where advance health care directives conflict with enduring guardianship, the guardian is able to make decisions contrary to the directives.9

Advance health care directives can be binding at common law, if they fulfil the criteria of specificity and competence at the time of writing. Medical practice also appears to support the advance directives of patients who can no longer make decisions about their health, as outlined in the NSW Department of Health’s guidelines in relation to management of dying patients:


The need to have advance health care directives recognised by legislation has been an issue that has attracted much discussion. The Director of the Benevolent Society’s Centre on Ageing expressed the view that the informal nature of advance directives, supported by the common law and medical practice, was preferable to legislative recognition. The concern was that under legislation there would be the risk that an advance directive not completed on a specific form in the prescribed manner would remain ineffective and inflexible.11 In addition, one consultation suggested that:
At the same time, there are concerns about the lack of legal safeguards in NSW for medical practitioners when there is an advance health care directive that is in conflict with the practitioner’s duty of care under the law of negligence.13 If the current informal arrangement with advance directives is to continue, it would assist if there are clearer rules and thorough guidelines in relation to the legal and ethical duties of medical practitioners and health professionals when confronted with advance directives.

The common arguments supporting the introduction of legislation dealing with advance health care directives are that:


Arguments against such legislation include that:


Relevance of advance health care directives for older people


As older people face diminishing physical and cognitive capacity, the use of directives to make future decisions about health care becomes a significant instrument by which they can maintain control over their medical treatment. Advance health care directives also aim to uphold principles of autonomy and self-determination for people with diminishing capacity.

There is increasing evidence that people would like to be able to make enforceable advance health care directives. A survey conducted in Sydney by the Centre for Education and Research on Ageing found that approximately two-thirds of nearly 500 respondents believed that they would complete advance health care directives having been made aware of them.17

The desire for greater involvement in decision-making on health issues is even more pronounced in relation to the area of terminal care.

Australian opinion polls show that community attitudes are moving strongly towards wanting more control over the terminal stage of life, and the Public Health Association of Australia supports legislation to allow people to prepare enforceable living wills rejecting excessive medical treatment in the event of terminal illness.18

The University of Queensland’s Department of Social and Preventative Medicine has conducted a comprehensive study on end of life decision-making and advance health care. The survey of 389 patients in Queensland found that 71 per cent reported that a written document expressing their wishes for medical treatment for a future time of incapacity was important, while 61 per cent said that they would like to write down their wishes. Seventy-one per cent of patients also agreed that advance directives would make a useful contribution to medical care.19

The surveys of GPs and health professionals produced similar results in support of advance health care directives. Sixty-four per cent of the 172 GPs and 76 per cent of the 860 health professionals agreed that advance directives would make a useful contribution to medical care.

The above research suggests overwhelming support within the community, from both the public and health professionals, for advance health care directives as the means with which individuals may have their wishes for medical treatment and care considered in the event of future incapacity.



Barriers for older people in accessing advance health care directives


Knowledge

The study conducted by the University of Queensland’s Department of Social and Preventative Medicine suggested that the most significant barrier to people using advance health care directives is their lack of knowledge. Similarly, 93 per cent of GPs and 91 per cent of health professionals reported that the greatest impediment to the use of advance directives was people not knowing enough about them.20

Time

Another barrier to older people using advance health care directives is the time involved in the discussion and planning of the directives.


NSW Health is in the process of drafting a best practice advice for health professionals regarding the use of advance health care directives to address this issue. The advice looks at instigating cultural change in hospitals, nursing homes and other health service providers to train both physicians and allied health professionals (such as social workers and nurses) in starting discussions about advance health care directives with patients.

Reluctance by older people to consider end of life issues

There is evidence suggesting that the present cohort of older people are less likely to think about end of life issues than previous cohorts and to leave the decision to the doctor22 and that this tends to increase with age.23 One NSW Health officer expressed reservations about leaving the onus of advance health care directives on older people:


The Department states that the instigation of such discussions needs to be normalised and mainstreamed into medical management—often health professionals are reluctant to start such discussions for fear that patients will assume the worst and be overwhelmed by anxiety. Implicit in this is the important role that participation and appropriate discussion have in older people implementing advance health care directives. Advance health care directives can facilitate greater participation and consultation in care, as they focus on discussion of the individual’s wishes and in involving other people in the process.

Difficulty in predicting future scenarios

Another limitation on the use of advance health care directives is the fact that circumstances may change over time, and it is difficult when making the directive to predict future circumstances accurately. Even where a predicted circumstance occurs, while an individual may be sure of what treatment or what health care they want in advance, it can be very difficult to apply when that situation actually occurs25 Where there is such a treatment dilemma, doctors may be loath to follow advance health care directives in the face of strong objections from family members and friends.26 The inability to anticipate every eventuality further demonstrates the importance of communication and discussion amongst family members and older people.



Access to health services and consumer rights


The Australian health care system is based on a combination of public and private sector involvement, with private medical practioners providing primary and specialist care in the community, and a mixed public and private system providing comprehensive acute services. With the population of people aged over 65 expected to triple to 6.6 million in the next 50 years,27 there has been concern about the increasing costs of health care.28

The burgeoning costs of health care have resulted in a shift of responsibility to provide services from the State to the individual. This shift is reflected in the increased prevalence of, and reliance on, private health insurance,29 and in government incentives for people to use private health insurance. The waiting lists for public hospitals are also increasing,30 and the number of consultations bulk-billed by GPs throughout Australia fell from 80 per cent in 1995–1996 to 71 per cent in September 2002.31

In 1999–2000, approximately 24 per cent of non-hospital GP services were provided to the 12 per cent of the population who are over 65. The rate of use of GP services by older people is also more than double that of people under the age of 65.32 With older people accessing medical and health care services more than other age groups, the impact of allocation of resources to health care will have a significant influence on older people’s ability to access proper health care.



Areas of concern


The Health Care Complaints Commission (HCCC) has identified the following consumer rights in relation to health services:
Attitudes of service providers

Communication and delivery of health services to older people can be hindered by attitudes of service providers and organisational pressures arising from cost-effectiveness, appropriate allocation of time to clients and management of workloads. Delivery of health services to older people can also be affected by negative stereotypes and perceptions of older people. Seeing older people as inflexible, too old to change and a drain on scarce resources, are some of the common stereotypes that exist in health service provision.34

It has been reported that health work with older people is perceived to have low status.35 These attitudes are sometimes translated in health professionals’ treatment of older people. Complaints of being talked down to, patronised and decisions made without any discussion or consultation, are common amongst older people.36


The recognition of such attitudes was highlighted by the Australian Society for Geriatric Medicine, who in their position statement on education and training in geriatric medicine to students, proposed:
There needs to be effective communication between health service providers and older people in order to provide quality health care. Professionals need to be sensitive to older people’s concerns and treat them with dignity and respect. Having a good bedside manner and having good communication skills are precursors for deflecting complaints39 and in achieving patient satisfaction. The Council on The Ageing (NSW) have summarised “golden rules” that define quality health services for older people, and reflect the rights of older people as health service consumers.40 Some of these include:
Rationing of Health Care Services

The impact of age-based rationing is of great concern amongst older people in accessing health services.


According to the Centre for Elder Law, prioritising patients for treatment based on need is a common, but hidden practice amongst health service providers. Such practices reflect the utilitarian nature of allocation of scarce resources, and attitudes of service providers towards older people.42

While the presumption that age hinders favourable medical outcomes may have some statistical accuracy,43 older people have the same right to access to health services when needed, as others in the population.

Cost and access to private health insurance

On the basis of consultations conducted as part of this study, it appears that the gradual shift in GPs away from bulk billing has had an effect on the ability of older people to access health services. Although most GPs continue to bulk bill for pensioners, a significant proportion of GPs do not. Lack of bulk billing can be a financial burden for older people whose basic income may rely on the pension or a small fixed income. There are some cases where older people will forgo medical treatment in lieu of incurring the expense.


Integrally related to this issue is the affordability of private health insurance. The Australian Bureau of Statistics data in 2001 showed that the proportion of the population covered by private health insurance progressively decreased with age, with only 35 per cent of those aged 75 years and older in receipt of private health insurance.45 The Centre for Elder Law also highlighted concern about older people being unable to access private health insurance due to the increased onus on the older person to show assets or demonstrate financial capability.46 In such circumstances older people are left to access health care through the public health system.

The focus group with the Combined Pensioners and Supperannuants Association highlighted the dissatisfaction of some older people with the public health system.



Hospital Discharge


Hospitals are a key component of the health care system. Older people have a higher rate of admission to hospital than the general population, accounting for 33 per cent of admissions, while comprising only 12 per cent of the population.48 The length of the stay at hospital also increases with age. Older patients stay on average for 5.3 days, compared to 3.7 days across all age groups.49

In recent years there has been a system-wide shift to earlier discharge from hospital, creating a high level of consumer concern, with extensive anecdotal evidence of gaps in the continuity of care.50 For example, there has been an increase of same day hospital stays between 1996 and 2001, and an overall decrease in the length of hospital stay for all ages, including older people.51 Discharge policies directly impact on health outcomes, quality of life and the ability of patients to return to the community.

The NSW Council of Social Service (NCOSS), in their submission to the NSW Department of Health on effective discharge planning, highlighted some consequences from early discharge practice:


The need for effective discharge planning

The NSW Department of Health defines effective discharge as:


Gaps in discharge management practices and identified common barriers to effective discharge present particular difficulties for aged patients. An audit of discharge practices in Victorian hospitals in 2000, identified the following general barriers to effective discharge:
The lack of communication and coordination of services after discharge was the major area of concern, particularly for older people and their quality of life outcomes. There has been no comparable study in NSW examining common barriers to effective discharge. A 1998 study of adverse events within Australian general practice found that one of the major contributing factors to adverse events was poor communication between health professionals including clinical information about the outcomes of hospital referrals or admissions and the expected role of GPs in post discharge care.54

Lack of resources presents as a major factor in influencing early discharge policies, with the shortage of beds in NSW hospitals creating a perceived pressure for hospitals to discharge older patients. This was highlighted in one of the focus groups as a major concern for older people, particularly in relation to outcomes of quality care.


Inadequate resources to various community support programs has also meant that many patients face lengthy delays in accessing much needed community care programs (such as accommodation).

In their review of re-admission of elderly patients to hospital, Tierney and Worth identify a number of factors that could aid in implementing effective discharge policy:


While NSW Health has written policies and new initiatives relating to effective discharge planning in NSW hospitals there still needs to be effective monitoring of such practices to ensure that older people have access to adequate quality care.


Medication misuse


According to Australian Bureau of Statistics, 12.5 million people (69 per cent of the Australian population) had used some form of medication in the previous two weeks prior to being surveyed, 36 per cent of which were prescribed medicines.57 The level of medication use increases with age, with approximately 86 per cent of people aged over 65 using medication, compared with 59 per cent for the general public.58 The relatively higher use of medicines by older people can be attributed to their higher rates of chronic illness. Older people are also more likely to take multiple medications, with over 20 per cent of older people using more than four types of medicines,59 thus increasing the risk of adverse drug reactions. Age-related changes of the body, such as loss of vision and hearing can affect the ability to follow correct dosages.


Legal issues relating to medication misuse


The legal issues of medication misuse identified in this project are discussed in turn below.

Lack of access to relevant information

The lack of knowledge and education regarding the use of medication for older people was identified as an issue in health service delivery, and in response to this, the Combined Pensioners and Supperannuants Association initiated a project called “The Medicine Information Persons Project.” This project encompasses the training of volunteers to be Medicine Information People (MIPs). The MIPs provide support, education and information to other older people about the proper use of medicines. They act as peer educators and advocates who go out into the community to educate other older people. According to one MIPs volunteer:


Poor communication between doctors and older people

One consultation61 suggested that there is a general lack of communication between older people and health care providers regarding information about older people, with older people often being described as passive health consumers who “blindly” accept information provided and are reluctant to question doctors. It was further suggested that this problem results partly from a mindset among older people that “doctors know best”, and also partly from health care providers failing to properly communicate and educate their patients.


One of the focus groups identified that time constraints with GPs prevent a proper discussion of the purpose and use of medication, due to the amount of time and patience needed to explain instructions to older people.63

However, recent studies have shown that where older people were given education about their treatment and encouraged to participate in managing their medication, their understanding of their medication was improved.64 Similarly, GP involvement with older patients also improved medication quality and safety. The Council on The Ageing (COTA) further emphasises the importance of this communication:


Lack of access to medical records

According to the Council on the Ageing, an older person’s access to their medical records is necessary, not only in protecting their rights, but also in informing and involving the older person in their continuing care. It expressed that such access would greatly assist GPs at admission to hospital, as well as acting as an aid in the appropriate use of their medicines.66



Available advocacy and assistance services


Several of the health related issues which have been identified have a strong consumer rights focus. The mechanisms available to address these consumer oriented issues are identified below.


Complaint Mechanisms


The Health Care Complaints Commission67

The NSW Health Care Complaints Commission (HCCC) provides people with a means of making a complaint about health care practitioners and health care services, and to have their complaints handled by an independent organisation. Complaints must be in writing.

The HCCC has the power to investigate any complaint when:


In accessing the complaints, it has the power to:
According to the HCCC’s Annual Report for 2001–2002, approximately 108 complainants were aged over 60, which represented 25 per cent of the complainant profile for that period.69

The HCCC can deal with a wide range of complaints including incorrect prescribing, inadequate diagnosis, lack of communication and unprofessional conduct. The HCCC will then investigate the matter and may refer the complaint for conciliation, to the Patient Support Service for assisted resolution or to another organisation.

Internal hospital complaints

For hospital complaints, there are delegated employees in many hospitals whose role is to investigate and mediate complaints by consumers. They are known under various titles such as Patient Advocate or Patient’s Friend.



Barriers for older people in accessing complaint mechanisms


Reluctance of older people to initiate complaints

One of the identified barriers to using complaint mechanisms is their emphasis on placing the responsibility of enforcement of rights onto the consumer. This barrier is of particular concern for older people, with significant anecdotal evidence and research highlighting the reluctance of older people to complain.70 Many older people fear that by complaining they will be subjected to some form of retribution.71 This is particularly the case for older people in nursing homes, as often they are dependent on the carers to provide day-to-day care, and they fear that complaining would put their health in further jeopardy (see Chapter 4, Accommodation).


Adding to that, is the recognition that
The unequal power relations between aged care providers and consumers is caused by the lack of accommodation facilities in the aged care sector, with many older people forced on to waiting lists to gain access into some form of accommodation. With such demand, older people (and especially their families) are more intent on retaining and securing their position in accommodation, than in enforcing their rights.74

It has also been expressed that such a complaints system is an inappropriate mechanism for older people.


Issues such as lack of confidence to speak up, reluctance to challenge authority, isolation and failure to understand the system, are other factors that act as barriers to using such complaint mechanisms.

Lack of systemic change

Given the issues such as fear of retribution and reluctance to complain, there is a need to put responsibility of enforcing older people’s rights onto service providers. A criticism of complaints mechanisms such as those mentioned above is their emphasis on the individual, rather than on organisational or cultural change. Even when a complaint is registered, the emphasis on resolving the complaint is on mediation and resolution, thus failing to uncover any organisational and systemic problems. The need for systemic change was raised in one consultation.


Similarly, it was argued that law reform initiatives should take in those considerations.


Advocacy services


Patient Support Office advocacy

The Patient Support Office is a service set up by the HCCC as an alternative to formal complaints-handling mechanisms and complements the complaint-handling options available to the Commission. Patient Support Officers (PSOs) act as advocates for people by helping identify issues of concern (including legal and consumer issues), providing information about health rights and providing direct assistance to resolve concerns. This can range from accompanying an older person to see their doctor and facilitating discussion, drafting letters, and arranging and attending meetings between consumers and service providers.78

The use of an advocate is highly beneficial, particularly for older people, given that they are less likely to rely on formal complaint mechanisms to address their concerns.79 PSOs operate on the basis of advocacy and empowerment, so that older people are supported while being able to participate and be involved in the negotiation process. An example of how a PSO can aid in resolving an issue is demonstrated in the following case study.


Medical Information Persons (MIPs)

The Combined Pensioners and Supperannuants Association trains volunteers in various issues and programs relating to aged care, including working as community advocates by acting as peer educators. One of these programs is the “Medicine Information Persons Project”, which seeks to provide education and support to older people about the use of medicines and their health rights.81 One of the major issues highlighted by the MIPs was the overwhelming lack of knowledge and information available for older people. They found that the best way of educating older people was to physically go out into the community and talk to them in an informal manner.82

People with Disabilities (NSW) Inc also raised the need for more advocates.



Legal Advocacy services


The NSW Aged Care Rights Service (TARS) provides the only specialist legal advocacy service for older people in NSW. It is specifically aimed at residents of Commonwealth funded residential aged care facilities in NSW, and provides legal advice as well as information telephone services and workshops for residents (for a more detailed description of TARS, see Chapter 4, Accommodation). There are no other specialist legal advocacy services to assist older people in NSW in relation to health related legal issues. This has caused a high demand for TARS’ services, which limits its capacity to provide information to residents and other older people on their rights. This issue was further emphasised by People With Disabilities (NSW) Inc.
The lack of a specialist legal advocacy service was also seen as a concern by the CPSA.
In terms of aged care facilities providing adequate service to older people, the importance of adopting a holistic and cross-collaborative approach amongst service providers was stressed.


Older people and disability


The probability of a person developing a disability increases with age, from 21 per cent for those aged 35–64 years, to 84 per cent for those aged 85 and over.87 As a result of the ageing of the general population, the population with a disability is also ageing, with the proportion of those aged 75 and over with a disability increasing from 66 per cent in 1981, to 73 per cent in 1998.88 Nearly all older people in care accommodation have a disability (97 per cent), and most have a profound core activity restriction (82 per cent).89 Accordingly, support services and program policies in the area of disability are important issues for older people.


Needs for older people with a disability


Current trends in community attitudes and government policies have seen a move away from institutionalisation to an increased focus on community and home care for people with disabilities. Older people with disabilities have particular health care needs and are likely to need assistance in everyday living activities, due to increased mobility restrictions and self-care restrictions.90 In particular, older people are more likely to develop degenerative-related impairments, such as physical restricting impairments and age related cognitive disorders (i.e. dementia).91 There is consequently an increased demand for carers and support services, which is likely to affect the future availability of informal care.92

While there are some needs that are common to older people with a late onset of disability and those with an early onset of disability,93 the latter group are a more vulnerable group within the aged population. Whereas most people will not experience disability until late in life, people with an early onset disability experience an earlier and pronounced decline in function than others of a similar age and thus have higher support needs at an earlier age than older people generally.94 “Secondary disability” or health complications can also arise as a result of the long-term effects of disability itself, thus requiring access to intensive services at an earlier age.95

There are important differences and needs between older people with a late onset of disability, and those with an early onset of disability. Some of the distinct needs of older people with a longstanding disability are:



Access to services for older people with disabilities


Compared to older people in general, for older people with a disability, access to health and legal services presents an even greater challenge. People With Disabilities (NSW) Inc. commented on the particular vulnerability of older people with disabilities.
Other issues such as physical accessibility to facilities (for example, workplaces), and access to information were also identified as barriers to older people with a disability in accessing services.98 The move towards online information, whilst beneficial for a significant proportion of the population, remains largely inaccessible for older people in general as well as for those ageing with a disability.
Some factors that impact on the accessibility of information online are:
Attitudinal barriers

The NSW Industry Group on People Ageing with a Disability in their draft position paper, identified attitudinal problems as a barrier for older people with a disability to access services within the aged care and disability sector.100 While this has been identified as a significant barrier for older people in general, for people with a longstanding disability who are ageing, access to aged care services can be made even more difficult by the attitudes of staff to people with a disability.101 This may indicate a need for specific legal services for older people with disabilities.


Costs

The cost involved in accessing health care and other legal services is a major concern for older people, that is intensified with the presence of disability. More specifically, older people with an early onset of disability are disadvantaged as a result of their reduced participation in the workforce, (with 65.3 per cent of the disabled population not in the labour force),103 which consequently reduces the possibility for savings and superannuation.104 The diminished financial capacity for older people with a longstanding disability is further emphasised with the extra cost of disability incurred throughout their lives and an increased dependence on government pensions (such as the Disability Support Pension)105 as a major source of income. Women ageing with a disability are seen as particularly vulnerable, as they are less likely to participate in the labour force, are less likely to work full time and earn a lesser amount than men (84% of male employees).106



Conclusion


Given that older people are more susceptible to illness and disability than any other age group, health-related legal issues become a predominant concern. The issues of access and quality of health services, inappropriate hospital discharge practices, and medication misuse, reflect broader concerns about patient’s rights as consumers of health services. Certain cohort characteristics of older people, such as their reluctance to question, complain and challenge the authority of doctors and health service providers, act as barriers to protecting and enforcing these basic patient rights. These barriers have significant implications for the effectiveness of current complaint and legal mechanisms, where the onus of enforcing rights falls on the individual.

An identified source of health related consumer issues for older people is the poor quality of communication between health service providers and older people. Attitudinal stereotypes, cohort factors and lack of access to information all contribute to such difficulties. Advance health care directives are one mechanism which focus on discussion and involving the older person.

Older people with a longstanding disability are a particularly vulnerable group within the aged population. Health complications are intensified as a result of the long-term effects of disability, and access to services are made more difficult due to the lack of cross-collaboration of disability and aged care sectors.

Like many other consumer related issues, the mechanisms available to address health-related legal issues rely on the aggrieved party to be sufficiently motivated, confident and aware of the relevant complaint processes, to initiate a complaint. It is therefore important that the available mechanisms and services to address health-related legal issues are accessible and appropriate to older people, and are able to specifically cater to their needs.



Ch 6. Financial and consumer issues


Introduction


The move from work to retirement constitutes a significant change in lifestyle. Financial planning issues can loom large for people at this time. Not all of those with superannuation funds will have the knowledge to make financial decisions that will optimise their living standard for the rest of their lives. Those without superannuation face a significant drop in income and change in lifestyle, and may, for the first time in their lives, need to access government pensions and allowances.

This chapter examines a range of financial and consumer issues that affect older people, including pensions, superannuation, banking, credit and debt, and issues related to financial planning and advice. The chapter includes discussion of sources of assistance and advice, and mechanisms for appeal and complaint in cases where problems arise.



Social Security and Veterans' Pensions


At mid-2001, an estimated 80 per cent of older people in NSW were receiving government pensions or benefits.1 These pensions or benefits are the responsibility of the Commonwealth Government, and are paid either by Centrelink under the Social Security Act 1991 (Cth), or by the Department of Veterans Affairs (DVA) under the Veterans Entitlement Act 1986 (Cth).

In addition to the basic rate of Age Pension, an older single person or couple is entitled to a Pharmaceutical Allowance, and may be eligible for Telephone Allowance, Rent Assistance and Remote Area Allowance. Age pensioners are also eligible for the pensioner concession card, which gives them access to various concessions from Commonwealth, State and Local Government and private businesses.

The Service Pension rates are the same as for Age Pension. The Veterans Entitlement Act also provides for Disability and War Widows’/Widowers’ Pensions (for those whose spouse died as a result of war service), which are not means tested. There are various rates of Disability Pension, depending on the severity of war injuries. It is paid in addition to Age or Service Pensions. Recipients of the Service Pension are eligible for a means tested Income Support Supplement and may be eligible for a number of additional allowances, such as home help, free convalescent and respite accommodation, as well as generous health cover.



Problems encountered by older people


In a study of older people and the law undertaken in Victoria by the Consumer Law Centre of Victoria (CLCV) in 1994, 20 per cent of respondents reported having experienced problems with Social Security (the third most common problem experienced by survey participants), and four per cent had experienced problems with veterans’ pensions.2 While the differences in the number of problems experienced can be attributed in part to the smaller number of people receiving a veterans’ pension, the study found that older people had different experiences in dealing with the two departments.
Specific issues raised are discussed below.

Eligibility Rules

The Age Pension is currently available to men aged 65 and over and, depending on their year of birth, to women aged 62 and over.4

The rules governing eligibility for the age pension are considerably simpler than those for other social security payments, which require judgements to be made on family relationships, disability, caring responsibilities or compliance with activity test requirements. Contributors to this study expressed positive views of Centrelink and the age pension.


The rules governing eligibility for Veterans’ Affairs pensions are more complex. Service Pensions are payable to veterans with qualifying service, their partners, and widows and widowers, at ages five years earlier than the age pension, or if they are permanently blind or unable to work.6

Eligibility for War Widows’/Widowers’ and Disability Pensions involves complex questions about the level of disability and/or the extent to which it was war-caused. Seventy five per cent of decisions reviewed by the Veterans’ Review Board involved questions of whether the veteran’s death or injury was war or defence caused, with 24 percent of decisions on entitlement being set aside.7

Income and assets tests

Age and Service Pensions, like other income support payments, are subject to income and assets tests. The income and assets tests can be challenging for those with retirement savings, superannuation or assets, as different investment arrangements yield different pension assessments. Pensioners must report any changes in the value of an asset, which may require obtaining a professional valuation. Some age pensioners are reluctant to maximise their income because they could lose part of their pension, or lose access to the Pensioner Concession Card.

People approaching pension age who have held an interest in a farm may not be aware that there are particular rules relating to giving away their farm or relevant farm assets, which may affect their pension entitlement.8


In the case of couples, income and assets are pooled. A person might not qualify for a pension, or a full rate of pension, if his or her partner has higher income or assets. This condition can be a source of problems for women trying to get out of domestic violence situations, particularly where there is financial abuse, they are remaining ‘under the same roof’ and cannot establish that they are living ‘separately’.10

The assessment of income and assets can also entail complex interactions with the tax system. In the 1994 CLCV Victorian study of problems experienced by older people in Victoria, 15 per cent of respondents had experienced taxation problems.11

Errors and overpayments

The complicated nature of the rules for assessing income and assets, and the ensuing complexity of financial arrangements, give rise to significant levels of error on the part of both Centrelink and claimants. An Auditor-General’s review of assessment of age pension claims in 2000–2001 found a 52 per cent error rate for new claims for age pension. Quantifiable errors impacting directly on payment were assessed at 28 per cent. These included payment rate errors, payment from the wrong date, and claims for the Age Pension or Telephone Allowance rejected or accepted inappropriately.12

A second Audit report of Centrelink’s own performance monitoring system reported that:


The incorrect payments reported illustrate the need for pensioners to have a sound understanding of the assessment procedures and the system of appeal in the case of incorrect decisions. This is illustrated in the following anecdotal evidence:
and
A further area in which people reported problems was overpayment of pensions following the death of a pensioner.


Getting advice and assistance


In the CLCV Victorian study 49 per cent of respondents with social security problems and 70 per cent of respondents with problems related to veterans’ pensions sought assistance.17

Further respondents who approached the (then) Department of Social Security (DSS) directly for help did not always find DSS helpful.


Welfare Rights Centre NSW 19

The Welfare Rights Centre provides advice and assistance to help individuals exercise their rights, fulfil their obligations, and maximise their entitlements under the Australian social security system. The Centre can help people by advising them of their rights and entitlements, and assisting them to appeal against Centrelink decisions. The Centre also undertakes law reform and lobbying, as well as community development, community education and training.

Twenty per cent of Welfare Rights clients are aged 50 or over.20 Suggested reasons as to why older people may not approach the centre for assistance include:


This is illustrated in the following:
Veterans Advocacy Service, Legal Aid NSW 22

The Veterans Advocacy Service (VAS) is a unit of Legal Aid NSW that provides free legal advice about individuals’ rights and entitlements under the Veterans’ Entitlements Act 1986. Services provided include:


The work of the VAS largely concerns issues of disability, rather than the more general issues of income and assets tests. Assistance for disability claims is subject to a merits test, but not subject to a means test. In cases involving income and assets tests, or the rate of pension payable, the Legal Aid means test guidelines apply, and can present barriers for some older people seeking assistance.23

Other sources of assistance

Concerns were expressed during this study that few legal and financial advisers are sufficiently familiar with the social security legislation, practice and appeals process to provide effective assistance to pensioners.


The Social Security Act also allows nominees to be appointed to act on a recipient’s behalf where the recipient is not capable of managing his or her own affairs. As with other issues of substitute decision-making this requires the nominee to have an accurate knowledge of the person’s financial arrangements. On occasions, the nominees may not understand Centrelink’s requirements, leading to poor decision-making on behalf of the recipient.25 There are also reports of inappropriate nominees being appointed, or nominees who do not act in the best interests of the recipient.26 The issues associated with Centrelink nominees is discussed in more detail in Chapter 9, Substitute decision-making and end of life issues.

Some ex-service organisations and individuals also provide assistance and representation for applicants at VRB hearings. Most provide their services free, however some charge a fee.



Mechanisms for complaints, appeals and disputes


Both social security and veterans’ benefit entitlement legislation provide for an appeal process against administrative decisions. The first formal step in this process is to complain to the original decision-maker for re-consideration, after which a complainant may seek internal review by Centrelink or the DVA.

Decisions by Centrelink officials can be appealed to the Social Security Appeals Tribunal (SSAT) once an internal review has been conducted. Depending on the nature of the decision in question, DVA appeals go to either the AAT or the VRB. AAT decisions can be appealed only on matters of law to the Federal Court.

Social Security Appeals Tribunal 27

The SSAT is the first external level of review of Centrelink decisions, and is independent of Centrelink. It is able to affirm, vary or set aside Centrelink decisions.

The SSAT is able to review a range of decisions, including:


There is no cost in appealing to the SSAT. Cases are reviewed by a panel of at least two members. The SSAT will also pay for reasonable travel expenses and provide an interpreter if required. Hearings are private, informal, and designed to give the applicant an opportunity to explain their reasons for appealing. Legal representation is permitted, but not required, at SSAT hearings. Centrelink is not represented, and the Department’s case is presented in a written submission.

Although age pensioners make up around 40 per cent of social security income support recipients, in 2002–2003 they represented only 10 per cent of cases to the SSAT.28 In 2002–2003, the SSAT reviewed 996 age pension decisions, setting aside or varying the decision in 35 per cent of cases and affirming the decision in 51 per cent of cases.29

Veterans Review Board30

The VRB is an independent tribunal that reviews Repatriation Commission decisions on:


The VRB does not impose any fees. DVA will pay an applicant’s reasonable travel costs, and individuals can apply for reimbursement for the cost of obtaining medical evidence to support the appeal. Most cases are reviewed by a panel of three members. An applicant can be represented at a hearing, but cannot be represented by a lawyer.

The VRB is not bound by the rules of evidence. Hearings are informal and normally conducted in private. The presiding member determines who may be present and, if requested by the applicant, may permit a hearing to take place in public. Although not usual, witnesses may be summoned and evidence may be taken on oath or affirmation.31

The VRB finalised 6,394 matters in the 2002–2003 financial year, with 3,595 matters going to hearing. The two main areas of concern were entitlement to the Veterans’ Pension and the assessment of the rate of pension. The VRB set aside the decision in 24 per cent of cases involving entitlement, and increased the rate of pension payable in 42 per cent of cases involving assessment.32

In some instances, the absence of legal representation may be disadvantageous, particularly where the appeal involves complex questions of causation, or where the VRB examines witnesses on oath. The fact that the cost of medical reports can only be reimbursed after first being paid for by the applicant may also represent a significant barrier for older people with little income or savings to draw upon.

Administrative Appeals Tribunal33

The Commonwealth Administrative Appeals Tribunal (AAT) provides merits review of decisions by a range of government and non-government bodies. Social security matters must be reviewed by the SSAT before an appeal to the AAT can be made. Similarly, decisions that are reviewable by the VRB must follow that process before an application can be made to the AAT for further review. There is no application fee for review of income support decisions. Applications for review can be made either by writing to the AAT or by filling in an application form.

The AAT has the power to vary, affirm or set aside the original decision. In 2002–2003, appeals against social security decisions made up 23 per cent of the AAT’s caseload, while appeals concerning veterans’ entitlements comprised another 15 per cent. There were 146 appeals lodged concerning age pension (two per cent of all cases lodged and eight per cent of social security cases). The vast majority of veterans’ entitlement cases involved either assessment or entitlement to disability pension (74 per cent) and a further 14 per cent concerned Widows’/Widowers’ Pensions.34

The AAT provides merits review. AAT procedures are more formal than those of the SSAT and VRB, and it is more common for applicants to be legally represented. This formality, and the cost of obtaining legal representation, can present significant barriers for older people seeking to appeal a decision.35

The AAT has an outreach program (usually conducted by telephone) for unrepresented applicants to obtain information about appeal processes and procedures. The AAT also provides further information on its internet site and through pamphlets and a video.

The Commonwealth Ombudsman36

An alternative avenue for complaints on pension matters is the Commonwealth Ombudsman. The Ombudsman cannot override the decisions of agencies or issue directions to agency staff, but resolves complaints by negotiation and, if necessary, by making formal recommendations to Government.

In late 2001, the Ombudsman established a specialist unit to deal with complaints involving Centrelink, the Department of Family and Community Services and the Child Support Agency. Centrelink complaints account for just over half (52 per cent) of all complaints received under the Ombudsman Act 1976 (Cth). During 2002–2003, the Commonwealth Ombudsman received 9,642 complaints about Centrelink. In approximately three-quarters (76 per cent) of these complaints, the Ombudsman decided not to investigate, in most cases because the agency had not first been given the opportunity to address the complainant’s concerns.37

Complaints about the DVA represented 28 per cent of all complaints to the Defence Force Ombudsman in 2002–2003.38 As noted earlier, veterans have access to well-established avenues of appeal within the portfolio, and further rights of appeal through the AAT. These mechanisms can deliver enforceable decisions, and complainants are therefore encouraged to use these approaches rather than pursuing an investigation by the Ombudsman.39



Superannuation


In 1992, the Commonwealth Government introduced the Superannuation Guarantee Levy. This currently requires employers to provide contributions of nine per cent for compulsory minimum coverage of employees.40 Under the Superannuation Industry (Supervision) Act 1993 (Cth), superannuation is ‘vested’ in the employee (i.e. it is not forfeited on resignation) and ‘preserved’ (i.e. cannot be withdrawn before age 55). The preservation rules have certain exemptions, such as in cases of extreme hardship. From the age of 55 (the ‘preservation age’), a person can draw benefits if he or she leaves employment and retires from the workforce (the preservation age will increase to 60 years by 2024). From the age of 60, a person can draw benefits after leaving the employer through which it was being paid.41 In early 2004, the Government announced changes for the work test rules for people aged over 65, which currently require people to work at least 10 hours in each week to be eligible to make superannuation contributions.42


Problems encountered by older people


In the 1994 CLCV Victorian study, 5.5 percent of respondents indicated having experienced a problem with superannuation.43

While superannuation was an important issue for the lawyers and financial advisers consulted as part of this study, it was rarely raised by the older people themselves. This discrepancy may be due to the fact that the older people consulted either received relatively little superannuation, or had already taken their superannuation benefits. Problems with superannuation are more likely to be encountered at the point of retirement, as decisions taken at this point will affect a person’s financial security and living standards for the rest of his or her life.

One issue that did arise was in relation to the effect of the work test rules on superannuation for people who are still in employment when they are over the age of 65.


Problems such as these may become less common with announced changes to the work test rules for those aged over 65.45


Mechanisms for complaints, appeals and disputes


Superannuation Complaints Tribunal47

The Superannuation Complaints Tribunal (SCT) is funded by the Commonwealth through an annual levy on superannuation funds.48 It investigates complaints relating to superannuation, annuities and deferred annuities, and retirement savings accounts.

The SCT is required to try to resolve complaints by conciliation, and exercises its discretion in arranging conciliation conferences. Parties can object to entering conciliation, and the process is not bound by any formal rules of evidence, nor are there any particular requirements as to the structure of a conference.

Where conciliation is not possible, the SCT formally reviews the contested decision or conduct. These reviews are normally conducted on the basis of documentation, including submissions by the parties, rather than oral hearings. Parties are given the opportunity to read and comment on the documents and submissions presented. Representation is viewed as unnecessary; however, if the applicant is incapacitated or believes that the issues are too complex they may apply to the SCT to be represented, providing reasons. Applicants are encouraged to bring a ‘support person’ with them to the conciliation conference, but this person cannot participate in the conference itself.

SCT determinations can be appealed on a point of law to the Federal Court.

The SCT does not charge a fee for lodging a complaint. Potential complainants must first complain directly to the relevant superannuation fund. If they are unsatisfied with the response, or a response is not received within 90 days, a complaint can be lodged with the SCT. The complaint must be lodged in writing on specific forms, and must also include the complainant’s letter to the fund and the fund’s response. It is possible to complain on behalf of another person.

The SCT’s Annual Report for 2001–2002 stated that 33 per cent of complaints received were from people aged 55 and over. Information as to the nature of those complaints is not available.49



Banking, credit and debt


The main problems confronted by older people in relation to credit and debt reflects the increasing use of new technologies in banking, and also the high proportion of older people on fixed incomes and pensions.


Problems encountered by older people


Technology

The introduction of new technologies over the last two decades has transformed banking from a primarily personal service industry into a ‘self service’ one. Telephone banking, Internet banking, B-Pay and automatic teller machines (ATMs) have largely replaced bank books and branch offices as the preferred methods for conducting financial transactions.


Further, many older people have difficulty using new technologies for banking.
A Human Rights and Equal Opportunity Commission (HREOC) Inquiry into the accessibility of technologies for older Australians and people with a disability found that a relatively lower proportion of older people use electronic commerce technologies.52 While access by older people is increasing, it still remains considerably lower for people aged 55 and over than for other age groups. The following table shows the percentage of persons who used electronic technologies in the 12 months to November 1999, by age.

Table 6.1: Use of selected electronic


commerce facilities by age53

Age (years)
EFTPOS
(%)
ATMs
(%)
Internet
(%)
18 to 24
80
90
73
25 to 39
80
89
56
40 to 54
64
72
44
55 and over
31
44
16

HREOC identified a range of barriers to accessing technology for older people and people with a disability, including:
Some participants in our consultations even indicated that they were not accustomed to using banks at all.
Credit and debt

Partly because of their low income, some older people encounter problems with credit and debt.

In the CLCV study of older people in Victoria:


Credit and debt problems were also identified during the present study.
In these situations, people may need legal assistance to determine the extent of the debt, and to negotiate terms for paying the debt. They may also need financial advice on how to budget so as to avoid debts or keep them at manageable levels.

Credit cards were identified as a significant problem for older people.


Because of low income, older people may also become victims of ‘credit screwing’.
The following example indicates that older people sometimes fail to deal assertively with creditors or lenders.


Getting advice and assistance


Most of the older respondents to the CLCV Victorian study who had experienced a problem with credit/debt sought help (58 per cent of those with a credit problem, 60 percent of those with a debt problem and 67 percent of those with a bank loan problem).61

Consumer Credit Legal Centre (NSW)62

The Consumer Credit Legal Centre (CCLC) is a community legal centre specialising in issues related to consumer credit, banking and debt recovery. It is the only centre of its kind in NSW. As well as providing casework services, the CCLC conducts community legal education, lobbies for pro-consumer reforms in financial services regulation, and provides information, legal advice and referral on financial issues to consumers and community and welfare agencies. Although CCLC services are provided to the community generally and are not specifically aimed at older people, the CCLC has a particular focus on issues that affect low-income and disadvantaged consumers.

Financial Counsellors63

Financial counselling assists people who are experiencing financial difficulties or who need information relating to credit and debt. It aims to raise the financial literacy of clients, empower them to regain control of their financial situation, and enable them to learn financial management skills that will assist them in making informed decisions in the future. Financial counsellors assist with such activities as budget planning, negotiating with creditors, dealing with bankruptcy, and potential bankruptcy and referrals to other agencies where necessary.

The Financial Counsellors’ Association of NSW (FCAN) is the body that accredits financial counsellors within NSW. Members of FCAN provide a free, private and confidential service to the community in the areas of financial counselling and credit reform, without a conflict of interest. The FCAN website includes a list of accredited financial counsellors and a series of fact sheets.64



Mechanisms for complaints, appeals and disputes


Banking and Financial Services Ombudsman65

The Banking and Financial Services Ombudsman (BFSO) is a free independent dispute resolution service which considers disputes involving amounts of up to $150 000 between individuals, or small businesses on the one hand, and banks and their affiliates on the other.

Once a complaint is received, the financial service provider is sent a copy of the complaint and has 30 days to respond. If the dispute is not resolved during the investigation process, the allocated case manager may make a “finding” on the matter. If either party rejects the finding, the matter is referred to the Ombudsman, who will make a formal recommendation. If the service provider rejects the recommendation, the Ombudsman may then make a formal determination, which is binding on the financial service provider. The BFSO may also convene a conciliation conference where required.

Applications to the BFSO must be lodged either on-line or in writing. While a written application can be fairly informal, the lack of facilities to lodge applications via telephone may create a barrier for those older people who are unused to using the internet.

Credit Union Dispute Resolution Centre66

The Credit Union Dispute Resolution Centre (CUDRC) is a free service that deals with complaints about credit union services involving claims of up to $100,000. Initially, complainants are expected to raise the issue directly with the relevant credit union. A formal complaint can be made to CUDRC if the complainant is either dissatisfied with the credit union’s response, or if 45 days have passed and no response has been received. This complaint can be made via telephone, email, fax or mail.

The CUDRC will investigate the complaint and attempt to facilitate a negotiated settlement. If this is not possible, the centre has the power to make a determination which, if accepted by the complainant, becomes binding on both parties. If the complainant rejects the determination, he or she retains the right to pursue the dispute in a different jurisdiction.



Investment advice and financial planning


For many older people, acquiring large sums of money either through superannuation, inheritance from spouse or family, or termination payments can present new financial challenges, particularly if they do not have prior experience investing money.


Problems encountered by older people


Access to financial information

Simply getting access to information to make financial decisions can pose significant difficulties for older people. In the CLCV Victorian study, 20 per cent of respondents indicated that they had experienced a problem with financial decision-making, making this the fourth most common problem area experienced by survey participants.68 This was consistent with responses from consultations undertaken for this study.


Further,
A qualitative study undertaken by Chant Link and Associates in 2001 for the Investment and Financial Services Association71 sought the views of a group of middle to high-income pre-retirees and retirees (on the assumption that lower-income earners would have little superannuation, and less access to information). The study found that participants placed a high value on saving for retirement, but had very poor financial planning.
Lack of knowledge about their options leaves older people open to exploitation if they trust the wrong adviser.
Older women

Older women, in particular, have been identified as having little experience of handling financial affairs, with many being unaware of financial arrangements their husbands have made.


Further,
Similarly,
Other research supports this perspective. In the 1994 CLCV Victorian study of the legal needs of older people, 72 per cent of respondents who indicated that they had problems with financial decisions were female.78

Families, carers and financial matters

Financial abuse of older people was reported by several participants of this study. In addition, “financial exploitation” was experienced by six per cent of respondents to the CLCV study on the legal needs of older people.79 The issue of financial abuse is dealt with in detail in Chapter 8, Elder Abuse.

Capacity and powers of attorney

The second most common category of problem experienced by respondents to the 1994 CLCV survey was that associated with powers of attorney. Thirty one per cent of respondents had experienced problems related to powers of attorney, and five per cent had experienced difficulties relating to guardianship.80 Abuse of enduring powers of attorney (which survive beyond loss of capacity), the question of determining capacity and the role of the Protective Commissioner are discussed further in Chapter 9, Substitute decision-making and end of life issues.

Becoming a Guarantor

Another problem raised was that concerning parents being asked to guarantee loans for their children’s business ventures. Because of the involvement of financial institutions, these cases have perhaps received more legal attention than others.

The University of Sydney and NSW Law Reform Commission undertook empirical research into the experiences of guarantors. A survey of guarantors found that:


Older people are disproportionately represented in problematic third-party guarantee transactions. A review of litigated cases concerning guarantees found a high proportion (35 per cent) of such cases involved parents guaranteeing loans for their children.85

Cultural factors can often lead to older people from culturally diverse backgrounds feeling obliged to provide financial assistance to family members without proper regard for the commercial viability of the transaction. There can also be considerable confusion about the nature of a third-party guarantee, as the concept of such a transaction is foreign to many cultures.86



Getting advice and assistance


The majority of respondents to the CLCV survey in Victoria had sought some form of outside assistance with financial planning issues when they arose:
The report provides a breakdown showing where assistance was sought with financial decision-making. The most common sources of assistance were private consultants (59 per cent), a bank or credit union (27 per cent), a government department (12 per cent), and private accountants (nine per cent).88

Centrelink Financial Information Service89

The Centrelink Financial Information Service (FIS) provides information on financial issues including financial planning, understanding financial or investment products, income and assets tests, and taxation. As well as attending public seminars, people can make an appointment to receive individualised information from a FIS Officer; however, FIS does not provide investment recommendations. The FIS service is free and open to anyone, whether or not they are in receipt of social security benefits.

Veterans’ Affairs Financial Information Service

The Commonwealth Department of Veteran’s Affairs offers a similar free financial information service through the Veterans’ Affairs Financial Information Service (VAFIS).90 The VAFIS is generally regarded as a very useful information source, particularly because they do not receive commissions from particular financial interests, they explain the income and assets tests to individuals, and they are used to meeting the needs of small investors.91

National Information Centre on Retirement Investments92

The Commonwealth Government also funds the National Information Centre on Retirement Investments, which provides a range of leaflets on aspects of retirement investment as well as providing financial information by telephone. It is open to anyone needing information on investment products or about how to obtain further assistance.

Financial planners and advisers

As noted above, almost 70 per cent of respondents to the CLCV study who had experienced problems with financial decision-making sought assistance from either a private consultant or an accountant.93 Concerns were expressed about the lack of expertise of investment advisers—both legal and non-legal—in regards to pension means test and eligibility rules, and the most appropriate retirement investment products available.


Similarly,
On the other hand, financial advisers presented as more positive about their ability to assist older clients:


Mechanisms for complaints, appeals and disputes


Financial Industry Complaints Service Ltd97

The Financial Industry Complaints Service Ltd (FICS) provides free advice and assistance to consumers to help resolve complaints against members of the financial services industry relating to issues such as life insurance, superannuation, funds management, financial advice, stock broking, investment advice and sales of financial or investment products. All potential complainants are first required to complain directly to their financial adviser. The FICS then takes on the matter if it was not resolved to the complainant’s satisfaction, or 45 days have passed.

The FICS initially attempts to resolve the complaint through conciliation. If the complaint is not resolved to the consumer’s satisfaction, it is referred to the Chief Executive Officer (CEO), who can:


Any determination by the adjudicator or the panel is binding on the member, but not on the consumer.

Applications must be made in writing, and require considerable formal documentation, including an ‘authority to proceed’. These documents can be downloaded from the FICS website: however, as mentioned earlier, the fact that older people have very low rates of access to the internet constitutes a considerable barrier for using this mechanism. A review of the scheme found that, while paper-based systems remain necessary, supplementary telephone and face-to-face processes should be introduced.98 The review also recommended the FICS should appoint a part-time consumer adviser—a person skilled in dispute resolution, with an understanding and awareness of consumer issues—to assist consumers in preparing complaints and exploring dispute resolution options.99

Insurance Brokers Disputes Ltd100

Insurance Brokers Disputes Ltd (IBD) is a free consumer service that handles complaints by consumers against insurance brokers and other financial service-providers (other than insurance companies). It covers claims of up to $50,000 on a range of policies, including life insurance.

Under the scheme, complainants are required to attempt to resolve the matter directly with the broker in the first instance. Participating brokers are required to have internal systems to monitor and resolve complaints, and must make a decision about a complaint within 20 working days. If the matter is not resolved through this process, it will be passed on to IBD’s Referee. Insurance brokers and financial service providers are bound by the Referee’s decisions, but consumers are not.

Consumers can contact IBD by facsimile, email, mail, telephone or face-to-face. IBD’s General Manager is available to discuss the dispute and to help the complainant formulate the complaint in writing.



Consumer Issues


The main problems confronted by older people in relation to consumer issues reflect general accessibility to goods and services, vulnerability to consumer frauds and scams, regular exposure to door-to-door salespeople, and vulnerability to pre-paid funeral arrangements.


Problems encountered by older people


Goods and services issues

The CLCV study identified a range of consumer issues that had been experienced by survey respondents. These included public transport (19 per cent), health insurance (13 per cent), gas/water/electricity (13 per cent), professional services (11 per cent), telephone/post (nine per cent), contracts (eight per cent), lawyer’s services (eight per cent), other insurance (seven per cent), and goods and services (five per cent).101

Consumer fraud and scams

The general community perception is that older people are at a higher risk of falling victim to frauds and scams.


In reality, older people are often highly aware of the existence of frauds and scams and may be more wary than younger members of society.
Nevertheless, it appears that older people can sometimes be vulnerable to scams.
Research conducted by Taylor Nelson Sofres in 2002 on consumer protection issues affecting older people in NSW included a short survey of older people who called the Office of Fair Trading (OFT) call centres with concerns about frauds and scams.
High pressure door-to-door sales

Pushy door-to-door salespeople can also present problems for older people, many of whom are retired and therefore more likely to be home during the day.


People buying on credit have special protection under the NSW Door to Door Sales Act 1967. When goods or services are purchased through door-to-door sales on credit, the law provides for a 10-day ‘cooling-off’ period.107 This means the householder can cancel the contract during this period and get their deposit back. Under this legislation, the trader must also give the customer a list of their legal rights, a copy of the contract, and a cancellation document in case they change their mind.108 There is however, no cooling-off period for cash purchases.

Pre-paid funerals

Pre-paid funerals allow consumers to pay for their funerals in advance, either as a lump sum or by making small payments over a long period into a funeral fund. This industry is different to many consumer practices, being designed to be used only many years after purchase, where the original purchaser obviously has no ability to monitor the delivery of the service.

Following several problems in the pre-paid funeral industry, the NSW Funeral Funds Act 1979 was enacted to regulate it. The legislation requires that funeral funds be registered, and that they meet certain prudential and fair trading standards.109 It also ensures that money placed in funeral funds is secure, and that the funeral is delivered as promised.110 A national competition policy review of the legislation found that the industry continued to require close scrutiny, and that there were significant grounds for the retention of specific consumer-protection provisions.111

The issue of pre-paid funerals arose in one focus group consultation.



Getting advice and assistance


Older people seek information on consumer protection issues from a range of sources with which they are familiar and comfortable. These can include the local Returned Services League (RSL), police, church, Centrelink, local retailers, magazines and talkback radio.113

Research conducted in 2001 for the NSW Department of Ageing, Disability and Home Care by Taylor Nelson Sofres found that while 55 to 64 year olds were considerably more likely (compared to people aged over 65) to use on-line sources, use of Government portals and on-line information sources is relatively low amongst people aged 65 and over.114

NSW Office of Fair Trading115

The role of the NSW Office of Fair Trading (OFT) within the Department of Commerce is to safeguard consumer rights and to advise business and traders on fair ethical practice. The OFT runs call-centres and, as noted above, older people appear to use this mechanism as a means of ‘checking out’ matters and organisations about which they are uncertain.

The OFT also provides comprehensive consumer information on its website, including information specifically designed for older people. However the usefulness and accessibility of web-based information for older people is questionable, given the low rate of internet use by people over 55 years of age.



Mechanisms for complaints, appeals and disputes


Consumer Trader & Tenancy Tribunal116

The General Division of the NSW Consumer Trader and Tenancy Tribunal (CTTT) handles small consumer claims (up to $25,000). For a pensioner, the cost of an application is $5. The application process is quite formal and applications must be lodged at a CTTT Registry.117

The CTTT will first try to resolve the matter through voluntary conciliation before moving to a formal hearing. The hearing process itself is also relatively formal, and can involve examination and cross-examination of witnesses on oath, as well as submission of documentary evidence. It is not uncommon for either or both parties to be legally represented. As noted earlier in this chapter in relation to the AAT, the formality and complexity of these processes may act as a barrier to access for aged people.118

Telecommunications Industry Ombudsman119

The Telecommunications Industry Ombudsman (TIO) has jurisdiction to investigate complaints about telephones, mobile phones, internet services, pay phones, connections, fault repair, privacy, land access, White Pages and breaches of Codes of Practice. Potential complainants are required to make reasonable attempts to resolve the matter directly with the service provider before approaching the TIO. Complaints to the TIO may be made online, by phone, fax, email, in writing, in person or via TTY. An authorised representative may also complain on behalf of the individual experiencing the problem.

Energy & Water Ombudsman NSW120

The Energy and Water Ombudsman of NSW (EWON) is a free service that can investigate matters specifically relating to decisions or actions by an electricity or gas provider, and its member water providers, with particular reference to: disputed accounts; disconnection or restriction of supply; actions of a service provider which affect a property; and the supply of electricity, gas or water services such as delays in connection or quality of supply. Complaints can be lodged on-line, or via email, telephone, fax or mail. Deaf, hearing impaired, and speech impaired people can contact EWON via the National Relay Service.

EWON has an internal review process. If a customer disagrees with a decision made by EWON, a review of the decision can be requested. EWON will review the matter if the customer can provide additional information, or indicate where EWON has relied on incorrect information.



Conclusion


older people face a broad range of financial and consumer issues. Some issues are specific to their stage in life, such as pension entitlements, superannuation related issues and investment planning and advice. Others are not dissimilar to the problems faced in the market by all consumers of goods and services, but reflect an increased vulnerability of older people (e.g. credit and debt, consumer fraud and scams, door-to-door sales, pre-paid funerals).

There are many different avenues for older people to obtain help in dealing with financial and consumer problems, and in lodging formal complaints and appeals. Common features of industry dispute-resolution schemes include that they are free for consumers, and that they are generally binding on the service provider, but not on the consumer. The complexity of the procedures for lodging complaints varies from body to body. The ability to lodge complaints orally, or alternatively, the availability of complaint body staff who can facilitate the lodging of formal complaints, or the completion of complaint forms, is an important access to justice issue for older people.

Another common feature of dispute resolution schemes is that potential complainants are required to attempt to resolve the matter directly with the service supplier before approaching the independent body. While it is not unreasonable to expect consumers to try and resolve a complaint directly before elevating the matter to a formal complaint body, this requirement may in itself create a psychological barrier for many older people.121

The informality of procedures in many tribunals does not remove the need for individual complainants to be able to argue and negotiate on their own behalf. This ability may be even more critical where procedures involve formal hearings or conciliation conferences. While legal representation is generally regarded as not essential for the Social Security Appeals Tribunal, the Veterans Review Board and the Superannuation Complaints Tribunal, an older person may be significantly disadvantaged by not having representation. Allowing an older person the right to be represented in hearings and conciliation may assist in overcoming imbalances in power and in negotiation skills.

Even where they would be willing to complain or take action, older people also tend to be less aware of the existence of avenues of appeal.122 The fact that many complaint and appeal mechanisms rely on web-based information compounds the problems faced by older people in becoming aware of their rights of appeal. Hard-copy information such as pamphlets and posters, appropriately distributed and displayed in organisations and agencies frequented by older people, would provide a more useful method of disseminating such information.



Ch 7. Discrimination


Introduction


Older people, like other age groups, experience discrimination on the basis of their age in a variety of contexts in their everyday lives. Just as people under 16 cannot apply for a driver’s licence, people aged 85 and over must successfully complete yearly driving tests to retain their licences. Although this is a discriminatory practice, it is not unlawful. It is reasoned that these decisions further public safety and are therefore justifiable policies.

These lawful regulations determining eligibility for participation in certain areas of public life are distinguishable from other forms of discrimination. In Australian society older people can be made to feel like they are a burden on their families, on the labour market, on health and social services, and on the economy generally.1 From this broader social context, aged individuals can find themselves being forced out of the workforce or shunted into menial jobs, which are not indicative of their skills or capacity for re-skilling. They can be marginalised from the consumer culture due to fixed, low incomes, and they may be denied full citizenship in society as their political power is calibrated to diminish with age. The law attempts to address these issues by outlawing age discrimination in certain public arenas.

Anti-discrimination legislation renders age-discriminatory treatment unlawful in the areas of employment, education, the provision of goods and services, accommodation and registered clubs.2 Like younger people, older people can also experience discrimination based on other grounds, such as sex, race, disability and so on. These other grounds of discrimination can intersect with age and can result in compounding disadvantage. However, this chapter will focus on age discrimination.

In the work context, many people experience the effects of age discrimination at a much earlier age than 65. As the bulk of this chapter deals with age discrimination in the area of employment and many people over the age of 65 are retired, the definition of older people (65+) was extended to include those in the latter stages of their working life.



Anti-discrimination law in Australia


The anti-discrimination legislative framework


Anti-discrimination law in Australia is split between State and Federal systems. In NSW, the Anti-Discrimination Board (ADB) administers the Anti-Discrimination Act 1977 (NSW) (hereafter referred to as “the ADA”) and the Human Rights and Equal Opportunity Commission (HREOC) manages a raft of Federal legislative instruments.3 Discrimination on the basis of a person’s age was effectively proscribed by legislation in NSW in 1994.4 Corresponding age discrimination provisions have not yet been enacted at the Federal level, although they are in the process of development.5 There are, however, some existing Federal instruments that broach the issue of age discrimination, but in a very limited way. For example, the Human Rights and Equal Opportunity Act 1986 (Cth) (HREOCA) permits complaints on the basis of age discrimination in the area of employment. HREOC is empowered to attempt to conciliate complaints made under the HREOCA, but is not authorised to make binding determinations or enforce its decisions. The Workplace Relations Act 1996 (Cth) also contains a number of provisions aimed at eliminating discrimination in the area of employment, and includes age as a potential ground for such discrimination.6

Like other grounds of discrimination prohibited by the ADA, age discrimination can be direct7 or indirect.8 Direct age discrimination occurs when a person is treated less favourably than others because of their age or on the basis of some attribute that generally relates to their age group. For example, an older man is told by his employer that he does not fit in with the younger work culture they are trying to foster. He is pressured to retire with taunts like ‘out with the old, in with the new’. This scenario is an example of direct age discrimination as it is because of his advanced age that he loses his job, while a younger person with the same skills and experience would have retained their employment.

Indirect age discrimination against older people occurs when an unreasonable requirement or condition is imposed that an older person does not or cannot comply with, while a substantially higher proportion of younger people would have little or no difficulty in meeting. For example, an older woman receiving the pension makes an application for private rental accommodation9 but is rejected because she has no income, other than social security. Although the real estate agent’s policy of leasing property only to employed people has the appearance of applying to all people equally, it is indirectly discriminatory because it has the practical effect of favouring younger tenants over older ones.



How it works in practice


When a person lodges a complaint with the President of the Anti-Discrimination Board, the first step is for the Board to investigate the complaint. If the complaint is made within the statutory time limits,10 falls within the ambit of the Act and has substance, the matter will be referred to an investigation or conciliation officer. That officer will discuss the matter with both parties and then attempt to conciliate the case with a view to settling the complaint. If conciliation cannot be achieved, the case will be referred to the Equal Opportunity Division of the Administrative Decisions Tribunal (ADT). If the ADT is unable to mediate the complaint, it will proceed to a hearing. The Tribunal is able to make a variety of orders, including compensation of up to $40,000.

HREOC operates similarly up to the point of conciliation of the complaint. Although HEROC once had the power to hear complaints and make determinations, it was unable to enforce those decisions: this could only be achieved in the Federal Court. However, in 199911 amendments were made to the HREOCA removing these powers. Now, if a matter cannot be conciliated, HEROC must terminate the case and the Federal Court or Federal Magistrates Service, on application by either the applicant or respondent, will hear it and make binding determinations.



Prevalence of discrimination


There is a paucity of data in relation to the prevalence of age discrimination.
The reporting of age discrimination, however, is dependent upon a number of factors.13

There is, nevertheless, some data available on enquiries regarding age discrimination. While the simple fact that a person has made an enquiry does not confirm that, at law, age discrimination has occurred, it is indicative of the subjective experience of discrimination by those who feel motivated enough to investigate their options. The ADB reported that, in the 2001–2002 financial year, 876 enquiries were made regarding age discrimination,14 representing six per cent of the total enquiries received. This number, however, reflects all enquiries about age discrimination, not only enquiries related to advanced age.

In the same year, the ADB recorded 68 complaints15 of age discrimination where the person was discriminated against because they were ‘too old’.16 This represents four per cent of the complaints across all the various grounds of discrimination. Fifty (74 per cent) of those 68 complaints were in the area of employment, 15 (22 per cent) were complaints in relation to goods and services, one was in the area of education and 2 were ‘other/unknown’.17

The same is true of HREOC enquiries and complaints made under the HREOCA. HREOC received 180 enquiries in the ‘age — too old’ category, but these are recorded without reference to actual age, or the area of complaint. Thirty complaints of age discrimination in employment under the International Labour Organisations Convention were registered by HREOC in 2001–2002.18

Thus while the available data is incapable of revealing accurate intelligence about enquiries or complaints of unlawful age discrimination experienced by people over the age of 65, it is possible to conclude that the numbers are relatively small by comparison to sex discrimination (1720 enquiries), disability discrimination (1649 enquiries) and race discrimination (1066 enquiries),19 and that age discrimination in the area of employment, if not necessarily the most prevalent form of age discrimination, is the one most frequently complained about. Neither HREOC nor the ADB conduct victimisation surveys, which are a means of establishing the prevalence of a phenomenon when it is suspected that it is under-reported. Therefore, the prevalence of age discrimination is difficult to estimate.



Studies on age discrimination


A number of studies have been undertaken on age discrimination: however, these tend to focus squarely on age discrimination in the area of employment. For example, the Australian Bureau of Statistics (ABS) has reported on a longitudinal survey, the Survey of Employment and Unemployment Patterns (SEUP), which tracked the jobseeking efforts and outcomes of a sample of jobseekers over a three-year period.20 While ‘older jobseekers’ (those aged between 45 and 59), 21 showed a relatively low unemployment rate of five per cent, they experienced less success than younger jobseekers in gaining employment.

During the course of the ABS study, older jobseekers looking for work fell from 74 per cent to 32 per cent. However, only about half of those ceasing to look for work did so because they chose to move out of the labour market, rather than because they became unemployed.

It is useful to examine employment population ratios in order to establish some sense of how many older people are actually employed, and how employment participation decreases with age. The ABS reports levels of participation in the workforce of older people:

Table 7.1 Employment Participation Rates in NSW for 55–64 year olds: Males and Females22

Males
%
Females %
55–59 years
70.8
46.8
60–64 years
43.7
18.6
Total Labour Force (15–64 years)
71.3
53.7

While these data demonstrate a high employment participation rate for men in the 55–59 year age bracket, those in the 60–64 bracket in NSW show a lower participation rate. In both age groups women have a much lower participation rate than men.

Research into age discrimination has been commissioned and undertaken by a variety of institutions. One 1999 study of employer attitudes conducted by Drake Management Consulting indicated that the problem is widespread and severe: “while we have long known that ageism is a problem in organisations, we were unaware of just how deep-rooted the problem is”.23 The study involved a survey of 500 senior executives and human resources managers from their employer clients. The survey asked questions in relation to age preferences in the recruitment, retrenchment and training of executive staff. No participants in the study indicated that they would hire executive staff over the age of 50. Twenty-three per cent reported that they would select employees from the 41–50 age group, while 62% said they would hire employees in the 31–40 age bracket.24

The study also shows a heavy bias against older people when decisions about retrenchment of staff had to be made. Sixty-five per cent of participants stated that the 50 plus age group would be the first to be offered redundancy, with 70 per cent of them saying “the reason why they’d retrench executives over the age of 50 ahead of others, is because they’re perceived to be inflexible and unwilling to change.”25 The study reported that on the contrary, older employees were amenable to change:


According to Drake’s findings, many executives make hiring, training and retrenchment decisions based on stereotypical assumptions about older people.

Similarly HREOC’s report, published in preparation for the introduction of age as a ground of discrimination at the Federal level states.


HREOC recorded a number of stories from older people who made submissions to the enquiry outlining how they had experienced the brunt of negative stereotypes held by employers.

When reviewing the ADA, the NSW Law Reform Commission made the following comments on the age discrimination provisions in respect of assumptions about older employees:


Employer practices that are motivated by these kinds of attitudes in relation to older workers may fall within the definition of unlawful age discrimination, but are often difficult to prove in a discrimination complaint because they are rarely overtly stated.
In response to this problem of proving age discrimination, some studies have set their sights on exposing age discrimination by exploring employer attitudes towards, and treatment of, older workers in comparison with younger workers.

The Social Policy Research Centre (SPRC) conducted a survey in 2001 of 1000 employers in the Business Services industry who had recruited in the last 12 months. This industry was “selected because of the diverse businesses and employment arrangements it includes and because it has a profile suggesting that it is representative of the employment opportunities available to older workers”.30 In their findings, 47 per cent of businesses did not employ any staff over the age of 55 in the past 12 months and 70 per cent had less than 10 per cent of their staff aged over 55 years. However, when they considered all employees in Business Services, not just of those employers surveyed, 10 per cent were over the age of 55.31

The SPRC study reported on numerous other studies32 showing that negative stereotypes of older employees, that act as barriers in recruitment, often contradict or conflict with an employer’s perceptions of their own older workers.

In the UK, an interim evaluation33 of the ‘Age Diversity in Employment; A Code of Practice’,34 a best-practice code introduced in 1999 by the Blair government, concluded that age discrimination in employment is difficult to prevent. Legislation prohibiting age discrimination is being considered in the UK, but has not yet been enacted. One conclusion from the report, according to the SPRC, is as follows:


The evaluation indicated that there had been little demonstrable change in employer policies as a result of the Code. This kind of study shows the persistence of negative attitudes towards older workers.

The SPRC tried to interrogate this issue further by posing a series of dichotomous characteristics commonly associated with older and younger workers to their sample of employers in the Business Services industry. The respondents were asked to indicate a preference between the various employee characteristics, without being informed that they were age-related stereotypes.

The results did not establish a pattern of preference, rather a mixture of qualities for ideal prospective employees. The SPRC reports that this is a different result to the earlier studies, which showed chiefly negative attitudes toward the characteristics associated with older employees.36 This finding is consistent with the argument that when the reference point of the older worker is removed, employers tend to have a more balanced view of the kinds of qualities that contribute to a beneficial working environment.

Another study conducted in Washington DC37 took a more experimental approach to test age discrimination in the hiring practices of employers in relation to entry-level management and sales positions. The study involved preparing four pairs of applicants for the experiment: three of the pairs were male, and one was female. One of each pair claimed to be aged 57 and one 32 years old. Hypothetical resumes were prepared for all 8 ‘testers’, with the researchers controlling for the differential work experience between the younger and older applicants by filling the 25-year age gap with work or life experience that was unrelated to the employment criteria. Nevertheless, each was assigned several years of relevant work experience appropriate to the target jobs. They then applied for positions in their respective pairs.

In 70 per cent of occasions, the members of each pair were treated comparably in the application process. In the remaining 31 per cent of occasions, the older of each pair experienced discrimination:


One of the older testers applied for a job and made contact four times without managing to speak with anyone directly. When the younger tester contacted the same employer, an interview was immediately organised.39

The pairs were also sent to interviews for various positions. They reported that older testers experienced discrimination in 34 per cent of the sales positions and 100 per cent of the managerial positions for which they applied. It was suggested that the relatively lower level of discrimination in sales might be explained by the nature of remuneration in that field, which is often wholly or partly commission-based. They reasoned that employers may perceive that it is less risky to hire older employees for commission-based sales positions, due to the lesser financial burden placed on those employers.40

In one sales position for which both members of a pair were interviewed, there were marked differences in the way each was treated. The older of the two was interviewed for 48 minutes and was warned against making a career change from teaching to sales. The younger applicant’s interview extended to 85 minutes, during which he was treated in a friendly and informal manner and, after a second interview, was offered a job.

Another finding of note was the increased level of discrimination when employment agencies were used as intermediaries. The study reported that older testers were treated less favourably than younger ones 84 per cent of the time when an employment agency was involved, as opposed to 29 per cent when no employment agency was engaged.


When older applicants did receive job offers, these were often qualitatively different from offers to younger applicants. Commission levels were often lower, and some older employees were offered part-time employment, in jobs where younger testers were offered full-time positions. The study also reported that factors such as whether the firm advertised themselves as an “equal opportunity employer” or whether they were a nationally recognised company, had no impact on the likelihood that they would discriminate against older job applicants.


Issues raised in consultations


Employment

The ADB has identified employment as the area that attracts the most complaints on the ground of age discrimination. In NSW, there are four different employment contexts which are susceptible to age discrimination:


Older workers do not have a uniform experience of discrimination in the workplace.
After consulting with the Board, it became clear that many discrimination complaints are not capable of being dealt with under the ADA, because it is very difficult to prove that employers are being unlawfully discriminatory.
Further,
Other complaints in which there is demonstrable evidence of discriminatory behaviour are more conducive to conciliation.
Also,
The ADB reports that one assumption commonly held by employers is that someone who is made redundant, and then later seeks out entry level employment, will not be able to be managed by someone younger and less experienced. Their sense of this issue is that it might apply to men more than women, but only because women were less likely to be in such high level positions to begin with.

The ADB also identified age-based discrimination concerning employers’ assumptions about employees’ plans for retirement. Examples of such assumptions included a man whose contract was not renewed due to a downturn in business, and who was told that at age 62, he was ‘likely to leave the company soon anyway’, and a woman who was overlooked for promotion because it was assumed she would probably not want to take on the challenge of the new position at her age. They also reported instances of front line staff being dismissed or not hired, because they didn’t fit the ‘image’ of the workplace. They noted that systemic discrimination is higher in some industries. This might manifest as not employing people who have made worker’s compensation claims, the likeliness of which increase with age in certain industries.47

Over time, some employers have become more familiar with their obligations under anti-discrimination legislation,48 although there are examples of employers taking steps to avoid discrimination disputes.49 One strategy noted by the ADB is using employment agencies as a buffer.


Indeed, many complaints from older jobseekers arise from their interactions with employment agencies.52 ADB conciliators anecdotally report that complaints made to them include: employment agencies requiring people to divulge their age; and being told by employment agencies that they were too qualified or that the job would suit a younger person. Some older people using the services of employment agencies have reported to the ADB that in their experience, agencies have been more overtly discriminatory in their approach to aged clients than employers dealing directly with them.
The ADB has suggested that this phenomenon might be explained by recruitment agencies’ perceptions that their allegiance is with employers’ and their needs, rather than people seeking employment.
The result can be that older jobseekers are hit with a double jeopardy. An employer firm wants to protect itself by using an intermediary to cull potential employees on the basis of their advanced age, but the agency’s perception of their requirements might be even more extreme than they had contemplated. Furthermore, employment agencies may act on assumptions that might not reflect any real prejudices held by the employer firm.


Provision of goods and services


According to the ADB, the next area after employment in which most formal complaints are lodged on the ground of age discrimination is in the provision of goods and services.55 This ranking should be treated with caution however, as complaints made to the ADB in 2001–2002 in this area numbered only 15 (22 per cent of all complaints regarding age discrimination). As mentioned previously, the number of complaints cannot act as a reliable measure of prevalence, but only as an indication of those whose sense of entitlement motivates them to make complaints.

Many of the enquiries and complaints received by the Board relate to income, or lack thereof, combined with a perception of a limited life expectancy. For example, “Older people were refused a mobile phone contract because they were on a pension”.56 Similarly, “people were refused loans because they were on pensions—you know aged pensioners—because they’re not seen to have enough time to pay them back”.57 This kind of discriminatory behaviour has its basis in a commercial determination that older people present as a high-risk group for contracts involving periodical payments over an extended period of time due to their limited financial flexibility.

A variation on this theme occurs where a company calculates a level of risk without reference to individual circumstances, and either excludes the older person entirely, or does so effectively by pricing them out of the market.


These kinds of complaints, however, are not capable of being dealt with under the ADA because insurance policies, provided they are based on reliable actuarial data, are exempted from the operation of the age discrimination provisions in the Act.59 Thus, while insurance companies are clearly discriminating against older clients by charging higher premiums, it is not deemed unlawful discrimination.

Anti-discrimination legislation only renders very specific kinds of discrimination unlawful in Australia. The result is that some complaints, as is exemplified by the insurance scenario above, are outside the jurisdiction of complaint-handling bodies like the ADB.


In this instance, the discriminatory behaviour manifests as a policy more appropriately characterised as differential treatment on the basis of economic status, rather than age. One submission made to this project reiterated this complaint:
While this may be experienced as unequal treatment by older people excluded from the medical concession, anti-discrimination law is drafted to protect disadvantaged groups from invidious policy-making, rather than ensuring equal treatment for all.


Other grounds for discrimination


As mentioned previously, age data is not available on other grounds of discrimination from HREOC or the ADB. This means that it is not possible to assess how frequently complaints by older people are made on other grounds, such as racial or sex discrimination. A couple of community legal centres, consulted for this project, commented that they had not experienced extensive discrimination complaints from older clients. The Inner City Legal Centre (ICLC) workers, whose client demographic includes a large number of people who identify as homosexual, recalled one case of discrimination on the grounds of homosexuality:
The Blue Mountains Community Legal Centre reported that the bulk of discrimination in the area is on the basis of disability, which can be, but is not necessarily, connected with age.

Another issue raised in consultation with Aboriginal Legal Services in Sydney is the discrimination that can result from multiple disadvantage.


This example demonstrates palpably how, at times, equal treatment can result in extreme inequity.


Issues raised by older people


The biggest issue raised in the focus group conducted with Older Men: New Ideas (OM:NI) was in relation to the importance of employment. Although none of the participants referred to discrimination, the older male’s perspective on the impact of losing employment was ventilated during the discussion.

Many of the OM:NI members had left work before the age of 65. One left at 59 when his factory closed down. Unable to secure a job elsewhere, he applied for Newstart and had to daily fill in a form to show he was looking for work.64 Another participant retired at 58. He worked in telecommunications and was offered a redundancy package (receiving 75 per cent of his salary on an ongoing basis). He said that this was a good decision because he has a disability.

Although none of the participants had sought out advice in relation to retirement issues, one participant said that his union organised for a financial adviser to attend the factory for that purpose. Also, some companies gave seminars in which retirement was discussed with employees and their wives. Such treatment could be construed either as a considerate service for employees, or as gentle pressure to encourage them to think about retirement.

Some participants felt that there was no value placed on the importance of work for older men, for whom work is a substantial part of their identity. The majority said that they did not want to retire when they did. Other comments included: ‘Your wife doesn’t want you under her feet’; ‘Your work is what you do’; and, ‘Your workplace is a second family in a way’. It was felt that although some look forward to retiring at 65, when it finally happens they find the lifestyle change to be a shock, particularly since work is often a rich source of male friendships.

One participant had a sick wife. His employer noticed that his mind was not on the job and fired him at 63, whereas he had planned to retire at 65. He expressed dismay about his situation:


He might have had some recourse under the ADA provisions prohibiting discrimination on the ground of carers’ responsibilities, but he did not seek out legal information or advice.

One OM:NI member discussed how things were different for older men in this situation:


Lengthy periods of employment with single employers has been advanced by many as a reason why dismissal due to age can come as such a shock to older people, as employee loyalty creates an expectation of equal dedication on the part of the employer.

Other focus groups on these issues were conducted with the Older Women’s Network (OWN). The gender difference was noted by one OWN member:


For the female participants, work seemed to be less associated with identity and friendships, and more connected with necessity or enjoyment, such as:
Another participant stated:
The women in OWN seemed to have a high sense of entitlement in relation to their work. The following remarks indicate that participants had seriously thought about some form of redress, but were put off by the imbalance of power between individual employees and their employers:
Further,
Another participant indicated a lack of interest in trying to solve the problem in her workplace by making a complaint and chose instead to resign.
Apparently the employer in this case was keen for her to continue working, and possibly would have been open to trying to resolve the issue. This woman’s story reveals that she felt entitled to be treated with respect in her place of employment, but also demonstrates a pessimism about things changing in the future: she chose to withdraw from the problem, rather than actively taking steps to address it.


Barriers to accessing assistance for discrimination matters


Reluctance to complain


Although this is not a phenomenon exclusive to the area of discrimination, one of the main impediments to accessing justice for older people suffering discrimination is a reluctance on the part of victims to make a complaint. Many older people are reluctant to complain, or resort to legal remedies to solve a dispute.74

In order to receive redress, the older person must first feel that the treatment they are receiving is unacceptable, and that they are entitled to better treatment. This is a threshold issue, in the absence of which, the older person will probably take no further action.
Even those who do complain have to struggle against personal and external expectations that they should simply “bow out gracefully”.

In regards to complaints of age-related discrimination, the ADB made some observations that may explain the disparity between evidence of discrimination against older workers from external sources and the relatively small number of formal complaints received by the ADB.



Individual disempowerment


Some older people spoke with a sense of inevitability about discrimination, highlighting what they perceive as the pointlessness of complaining.
Individuals also have to be aware, or be motivated to find out, that there are laws prohibiting discrimination. Once aware of the anti-discrimination legal framework, the legislative definition must strike a chord with the older person’s experience of discrimination. For some, the discriminatory treatment can be subtle and cumulative or ambiguous, which may leave the person feeling uncertain about whether they have actually experienced discrimination as defined at law.

‘Microagressions’ is a term that comes from critical race theory and is used to describe daily encounters with minor suspected acts of racism.80 These are “sudden, stunning, or dispiriting transactions”81 that can combine to create feelings of exclusion and denigration in the individual, whether or not they are intentional. Older people may experience age-based ‘microaggressions’ in seeking employment, or in other aspects of their lives, although they may not translate that experience as discrimination as it is legally defined. These may affect an older person’s self-esteem, making them less likely to feel they have a right to be treated otherwise.



Ignorance of how to make a complaint


Making a complaint necessitates that those affected must know where they should report the discrimination. While many organisations are in a position to refer people to the appropriate body, many older people complain that they do not know who to approach in the first instance, and that getting this information is a real battle.
More general observations include:
This last comment has particular resonance for anti-discrimination law, which includes both State and Federal legislative instruments and corresponding complaint-handling bodies.


Lack of evidence and procedural delays


For a complaint-handling body to proceed with a formal complaint it must come within their jurisdiction, and so there must be demonstrable evidence that the treatment accords with legal requirements. One of the obvious reasons the ADB might not be able to proceed with a complaint is that there is suspicion, but no proof, of discrimination.
The ADA permits that unlawful discrimination does not have to be the only, or even a substantial, reason for an act for it to be regulated by the legislation.87 However, a reasonable explanation for the act may overshadow the suspicion that it is discriminatory. For example, an older person may be rejected when applying for a job by being told that they are over-qualified for a position. This could really mean that the employer thinks the person is too old, or it could be an expression of anxiety that the person will not be satisfied by the position and want to leave after a short time. Because of this ambiguity, the substance of the complaint may not be sufficient for the Board to proceed.

Critically, the older person will require personal strength and stamina to initiate a complaint and proceed through the complaint process. Depending on the number of complaints on foot at any one time, there may be substantial time delays before a claim can be investigated, let alone before the organisation of the parties to the point of conciliation can take place. The Education Services branch of the ADB conducts community education that generally covers age as a ground upon which people may experience discrimination, but does not actively encourage people to complain, partly for this reason:


If conciliation is not successful, the case may be referred to the ADT89 or the Federal Court/Federal Magistrates Service.90 Those jurisdictions have their own further time delays for mediation and securing hearing dates, meaning that a case may not be resolved for more than two years.

Every one of these steps towards making a complaint, including the Board’s encouragement towards self-help, is a barrier to be overcome by older people in addressing discrimination aimed at them.

Many of the older participants in this project expressed a belief that the legal system is either not worth the trouble and expense of engaging with, or is incapable of producing a satisfactory outcome for them.



Barriers to effective participation in anti-discrimination complaints processes


One way of addressing the negative perceptions of the legal system among older people would be to convince them that it is capable of protecting them and resolving their disputes. However, there are a number of reasons why the law may not be adequate for achieving this.


The need for self-advocacy


Generally speaking, anti-discrimination law in Australia is a complaints-based system.92 This kind of system requires the most disadvantaged people to become advocates for themselves—which often means assuming a level of power and entitlement that may be beyond their reach.
The problem is often compounded by the often vast power disparity between the complainant and respondent in conciliation. The ADA does not include a right to representation for either party in a conciliation conference: this is a discretionary matter for the President to decide upon application by one or both parties.94 Having to ask for and be granted permission for someone to represent them in conciliation—and possibly pay for the privilege—can present an extra hurdle for older people.
The ADA permits a representative body to make a complaint on behalf of one or more people, provided the President is satisfied that it is with the consent of those represented, and that the organisation has a ‘sufficient interest’ in the complaint.96 It is also possible to undertake a class action in the ADT, but the conditions that need to be satisfied for the Tribunal to proceed are onerous.97

Such impediments to an older person receiving assistance, whether through representation by an individual advocate or representative body, or banding together as a class of victims, act as further barriers to accessing justice.



Problems with conciliation-oriented processes


In its conciliation of complaints, neither the ADB nor HREOC, has the power to impose sanctions on respondents.98 In terms of resolving matters, the conciliation process does not take an interest in the objective fairness of the resolution: rather it accepts the agreement arrived at between the parties. If the applicant does not seek legal advice prior to conciliation, it is possible that they will not be aware of the strength or weakness of their position and the likely outcome if the matter were to proceed to a tribunal or court hearing. This may adversely affect the complainant’s leverage in conciliation. Furthermore, the outcomes of conciliation will not be open to public scrutiny.

Conciliation conferencing also assumes parties to be equal. Thus, if a respondent such as a large corporation is to undertake the implementation of a policy that will effect systemic change in the organisation in relation to their older workforce, it would require that the parties arrive at that conclusion between themselves—or, more practically, for the older person to demand it as a term of settlement. It would also depend upon the good will of the corporation to follow through with that agreed course of action, as the complaint-handling bodies are not in a position to police or enforce the terms of the agreement.99



Limited impact of individual complaints processes


Systemic change as a result of a single complaint of age discrimination is unlikely. Although sweeping reforms are not impossible, complaint-based systems that encourage self-representation discourage it. The ADB has acknowledged this problem in a recent report.
They suggest that alongside the capacity to receive and handle individual complaints, setting standards that employers, service providers and educational institutions would be required to meet is a sound method for effecting systemic change.
In respect of age discrimination, this would mean that the responsibility for addressing age discrimination would not fall solely on older individuals, but would be shared, to create a balance of rights and responsibilities. In time, this might also have a positive impact on work culture as a whole, making some inroads into behaviours that do not, strictly speaking, meet the legal definition of discrimination, but which do nevertheless have a cumulative, enervating effect on older people.

In the past, the ADB has participated in law reform activities including making submissions to reviews of Acts of Parliament to law reform commissions and parliamentary reviews, and has initiated its own enquiries.102 Its expertise on human rights issues has been brought to bear on a number of projects. For example, the ADB was recently asked by the Commonwealth Attorney General’s Department for information on the operation of the age provisions under the ADA, for the purpose of developing Federal legislation to prohibit age discrimination.

To some extent, the NSW ADB is hamstrung in its law reform capacity by the general exception of ‘acts done under statutory authority, etc.’ in the ADA.103 The operation of this section was explored in the NSW Law Reform Commission (NSWLRC) Review of the Anti-Discrimination Act 1977:104


The NSWLRC explains that this exception was originally intended as a temporary measure. It was to provide a buffer for legislation and court/tribunal orders while the ADB prepared its report to the Minister on discrimination.106 So much was made clear in the, then Premier, Hon. Neville Wran QC’s Second Reading Speech:
The Board did report to the Minister by 1978,108 and some 25 years later, the section is still in operation,109 effectively making legislation and orders ‘off limits’ to the operation of the ADA. The ADB has strenuously argued for the repeal of s.54 and eight organisations were critical of the section in their submissions to the Review of the Act.110 Further the NSWLRC recommended the repeal of s.58 and the scrutinising of all new legislation to ensure compliance with the ADA.111

The ADB reported receiving complaints from older people about being paid less worker’s compensation because they were older,112 however, these complaints are outside their jurisdiction because of s. 54 of the ADA. While there are government and non-government organisations engaged in law reform process on behalf of older people, the ADB is well-placed to investigate areas in the legal system that unlawfully discriminate against aged people. This provision significantly weakens the ADB’s capacity to have an impact on systemic discrimination.

Another impediment to systemic change is that conciliated complaints cannot be publicised. The outcomes of conciliation conferences are reported in the ADB’s Annual Report, although the detail of matters and the parties cannot be revealed (see table 7.2).

Table 7.2 Outcomes of age discrimination ‘too-old’ complaints


to the ADB 2001/2002

Sydney, Wollongong & Newcastle offices
No.
%
Threshold exclusion
Outside jurisdiction of ADA
6
7.2
Formally declined by the ADB
2
2.4
Complaint is out of statutory time limit
1
1.2
Subtotal
9
Not proceeded with by the ADB
Complaint withdrawn
21
25.6
Other more appropriate remedy
3
3.7
Contact lost
5
6.1
Other
4
4.9
Subtotal
33
Referred to ADT
Referred to ADT
1
1.2
Referred to ADT after unsuccessful conciliation
5
6.1
Referred to ADT conciliation not suitable
3
3.7
Subtotal
9
Settled in some form
Settled after advice to parties — no conciliation
3
3.7
Settled after minimal negotiation — no conciliation
3
3.7
Settled after intensive negotiation — no conciliation
9
11
Settled at or after conciliation
9
11
Settled outside the Board
7
8.5
Subtotal
31
TOTAL
82
100%

In the year 2001–2002, just over a third (38 per cent) of age discrimination (‘too old’) complaints to the ADB were settled, but there is no further data available revealing how they were settled.
Eleven per cent of matters were referred to the ADT. The largest proportion of complaints, however, were those not proceeded with by the ADB. The limited detail provided in the table above raises questions about why so many complaints were withdrawn or contact lost with the complainants.

The negative flow-on effects of this confidentiality are at least two-fold. On one hand, the privacy of conciliation protects the reputation of respondents, permitting discriminatory policies and practices to persist.


On the other hand, it stymies the development of case law: only a small number of cases have progressed to the ADT dealing with the issue of age discrimination.115 While some important developments have occurred through those decisions, it could not be described as a rich body of cases from which to draw principles of age discrimination. Thus, even if complainants to the ADB do manage to obtain legal advice prior to conciliation, the case law is not going to be very useful in predicting likely outcomes in individual cases. This, in turn, may impact upon the demands that complainants feel they can make in settlement negotiations.


Conclusion


The literature review, consultations with service providers and submissions from older people reveal that age discrimination is much more readily experienced than it is enquired or complained about. As a result, this chapter has focused on the barriers facing older people in addressing age discrimination through existing complaint-handling bodies.

Many of the impediments in accessing justice in anti-discrimination law stem from problems with the legal framework itself. These can be summarised as follows:


There are also significant barriers for individual older people accessing justice when they have been victims of discrimination:
Clearly existing mechanisms available to older people for the purpose of seeking redress, after suffering discrimination, place onerous burdens on individuals who are vulnerable from the outset. Instead of compensating for that vulnerability, the legal framework and complaint-handling schemes compound the problem. Under the current system, it is little wonder that the most disadvantaged and disempowered people do not readily see the law as a solution to their problems.


Ch 8. Elder abuse


Introduction


Internationally, policy makers and researchers do not have a common definition for elder abuse. This creates problems in the fields of research and policymaking, as research results are not readily open to comparison.1 Lack of a consistent definition also leads to difficulties in assessing the prevalence of elder abuse and the adequacy of the law in addressing elder abuse. Nevertheless, elder abuse in Australia has been appreciated as a serious social problem warranting attention since the early 1990s.2

The term ‘elder abuse’ has been used to describe a range of abuses that include: “physical abuse, psychological abuse, medical abuse, economic abuse, violation of rights, sexual abuse, neglect and self-neglect”,3 or a combination of these. The abuse can be intentional or unintentional, and can be the result of acts or omissions. Broad-brush definitions are fleshed out with varying inclusions and exclusions of the above-mentioned forms of abuse. One of the simplest definitions is: “the wilful or unintentional harm caused to an older person by someone with whom they have a relationship of trust”,4 Other definitions focus more on the harm sustained than the relationship with the abuser.5

Australian definitions commonly exclude self-neglect and crimes committed by strangers.6 Australian research and practice also tends to separate elder abuse in institutional settings from that experienced in private homes, as the issues in relation to prevention, detection, intervention and remedies are quite different from those of older people in community care. One reason for this distinction is that aged people in nursing homes, retirement villages and hostels are open to greater scrutiny by government, workers, family and friends.7

From a worker’s perspective, the operation of varying definitions means that no single definition can be employed for the purposes of detection and intervention. However, it has been noted that a single definition may also cause problems.


Thus, instances of abuse that do not match the textbook definition may be overlooked.

The Victorian Office of the Public Advocate reported in 1990 that one of the factors preventing people from reporting elder abuse was the absence of a clear and commonly accepted definition.9



Abusive Relationships



The vast majority of perpetrators of elder abuse have been identified as close family members, often living with the victim. A recent Aged Care Assessment Team (ACAT) study examined elder abuse on the Central Coast of NSW. The study involved 1,777 people aged over 65 years of age who were referred to the Central Coast ACAT during a one-year period from November 1996 to November 1997. The research focused on clients and carers living in private homes. Clients in hospitals, aged care facilities and boarding house type accommodation were excluded. Of the 1,777 referrals to ACAT, there were 96 cases (five per cent) of elder abuse confirmed. The study found that in these cases, 40 per cent of perpetrators were the adult children of the victim, 35 per cent were spouses and 25 per cent were other and non-relatives.11

Other research conducted by the Aged Rights Advocacy Service (ARAS) in Adelaide examined 100 case records for older people who had reported some form of elder abuse, and for whom the outcome was known (i.e. whether the abuse had stopped, or whether it had not). This represented approximately 20 per cent of total clients over an eighteen-month period from November 1997 to June 1999. The study found that out of the 267 situations of abuse reported, 56 per cent of abusers lived with the victim and that the adult child was the most common perpetrator, with sons making up 29 per cent and daughters 24 per cent overall of abusers. These were followed by:


The ACAT and ARAS studies are the only available studies on who the perpetrators are. However, given that these studies related to very specific geographic areas (i.e. Central Coast, NSW, and Adelaide, South Australia) the extent to which their results are generalisable to the NSW population is unclear.

Carers and others in relationships characterised by a duty of care are sometimes abusers of older people in their care, but are also sometimes the subject of abuse.


In the ACAT study, 25 per cent of the victims identified were carers.14

In NSW, approximately 150,000 (19 per cent) carers are aged over 65, and of all older people 20 per cent are carers.15 Ninety per cent of all primary carers aged over 65 live with the person they care for and 75 per cent care for a spouse.16 It is reasonable to conclude that at least some of the abused carers will be older people.

One phenomenon that has been noted is that well-established power relationships can shift through ageing and onset of disabilities. This shift can affect abuse patterns. For example, a long-term relationship characterised by domestic violence which continues into old age may result in the victim becoming the perpetrator when the original perpetrator becomes ill.17 Another example is where a person who was sexually abused in childhood by a parent becomes the parent’s abuser when the parent ages and is dependent upon the grown-up child.



Some categories of abuse


Financial abuse


Financial abuse can come in many forms. Perpetrators may have legal control of the older person’s finances and assets via a power of attorney or enduring power of attorney18 and may be siphoning money for themselves. Others may steal money or assets from the aged, for example, “taking Nan’s pension, not giving her enough for bus money, getting her to sign over life savings and live in a room above the garage”,19 or pressure her into changing a will in their favour or giving them money through manipulation or standover tactics.

A 2002 study exploring asset management and financial abuse of older people, recognised that formal and informal practices of asset arrangement for older people create much potential for financial abuse. The study was based on a national survey of people over 18 years (n=3,434) of the prevalence of asset management in the Australian population. One-third of respondents had assisted a family member or friend with an asset management task in the previous 12 months, and 85 per cent had assisted a person aged over 55 years. The most common person assisted was a parent (53 per cent). The means utilised by family members to assist an older person with asset management included Enduring Power of Attorney, arrangements with banks, signing blank cheques and using automatic teller machine PIN numbers.20

Financial abuse is a commonly reported form of elder abuse. It was the main form of elder abuse that participants in this project reported.21 A consultation with the Inner City Legal Centre yielded some discussion about clients in similar positions:


Rodney Lewis, principal solicitor of the Elder Law Centre at the University of Western Sydney, suggested that this kind of problem should be less of an issue following developments in the common law.
It was clearly established in Commercial Bank of Australia Ltd v. Armadio that unconscionable conduct requires the obtaining of an advancement or benefit from a person with a special disability as a result of that disability. In Urane v. Whipper25, the NSW Supreme Court decided that the age, health, hospitalisation, mental state of the plaintiff and his requirement for constant assistance, made him a person under a special disability, from whom a benefit was obtained. The lack of separate independent legal advice was also a relevant factor. In this case, the plaintiff provided the whole of the sale proceeds of his house to his daughter (the defendant), without any interest or charge over the property being provided in return. The plaintiff had suffered two strokes, was in poor health, was quite confused, and had received a significant amount of caring support from the defendant. The defendant had threatened that if he did not comply with her request, she would no longer provide any assistance or support. The court held that the arrangement was an unconscionable dealing between the parties, accepted by the plaintiff in a state of weakness with little choice.

However, according to Juliet Cummins, co-director of the Elder Law Centre, the developments in the common law still fail to provide adequate protection to older people who go guarantor for their children’s debts.


The basis for the claim that such response is inadequate for older people is based on the premise that the decision is essentially creditor-focused, in that it concentrates on the creditor’s knowledge and behaviour, rather than directly on the relationship between the borrower and the guarantor. Accordingly, it is not adapted to the guarantor’s needs. In addition, the ruling only applied to wives, and there was no suggestion from the court that it should apply to other relationships of emotional dependence.27

There is also concern that the present doctrine of undue influence is the product of 19th century assumptions, and does not consider the particular frailties of older people. According to Fiona Burns, Senior Lecturer, Faculty of Law, University of Sydney, the doctrine reflects the view that old age does not warrant any special protection, even in relation to undertaking huge liabilities or the transfer of substantial assets.


Burns suggests that well-structured and broad-based legislative protections, including the requirement of independent professional advice in relation to a wide range of transactions, could begin to address the uneven treatment of older people in comparison to other vulnerable groups.29

However, independent legal advice does not prevent older people from entering into these arrangements with their children. It may only protect the financial institutions from liability. Situations of this kind will not always constitute elder abuse. Some people make poor decisions that result in a loss of assets or money. For example, one caller stated that he put up his house as collateral for his son’s business that subsequently failed.30 Financial abuse requires more than simply making a poor financial decision. The abusive element is generally that the older person is directly or indirectly pressured by the beneficiary to enter into an arrangement of this kind.

Some callers reported difficulties accessing inheritances after the death of their aged parent or in-law.


And,
Other callers reported money effectively being stolen from them.
In that case, the onus was placed on the mother to enforce the contracts with her children. It is not clear whether the children knew when the contract was drawn up that the mother would be reluctant to take court action if they broke the contract. The older person may not always be aware that he or she is being financially abused.
The research conducted by the ARAS in South Australia found that out of the 267 situations of abuse which were disclosed by the participants, 33.5 per cent came under the rubric of financial abuse. The majority of types of abuse were more likely to be reported when the older person lived with the abuser than where they did not, although they suggest that it may be more difficult to detect where incomes and assets are merged.35 In their 2000–2001 caseload, ARAS reported that 35 per cent of situations of abuse responded to were of a financial nature.36

In the Aged Care Assessment Team study, financial abuse made up 44 per cent of the 72 cases of client abuse studied. They found that financial abuse was more likely to be perpetrated by children (50 per cent) or others (44 per cent) than by spouses (six per cent). They also found that “less than half of financial abusers lived with the victim while nearly all non-financial abusers lived with the victim.”37



Psychological abuse


This category can include all manner of behaviours that have the effect of making the older person feel disempowered, perhaps through isolation from friends or family, treating them like children, or verbal abuse, such as threats, denigrating language or making them feel ashamed. Some abusers may make the person feel as though they are entirely dependent upon them and stuck in an abusive situation from which they cannot extricate themselves.

In the ARAS study referred to above, psychological abuse was the most commonly reported category of abuse experienced by both men and women (35 per cent of cases).38 In 2000–2001, they reported that 47 per cent of situations of abuse were psychologically abusive, still the most frequently reported type.39 In the ACAT study there was a much larger incidence of this kind of abuse, with 65 cases (68 per cent) of psychological abuse reported overall.40 This breaks down into 47 cases of client abuse and 18 cases of carer abuse.41 Among victims of multiple forms of abuse, 90 per cent reported experiencing psychological abuse.42



Physical abuse


This includes all kinds of physical violence, from minor assaults such as pushing or shaking to more extreme cases of punching or physically restraining the victim. Physical abuse might include neglect, such as leaving the older person confined to bed in soiled sheets.

The ARAS study referred to above reported that in 15 per cent of instances of abuse, victims had experienced physical abuse.43 Their later statistics show a reduction of physical abuse, representing 10 per cent of situations reported.44 Again, the ACAT study reported a higher perce