Discriminatory Abuse

1. Discriminatory Abuse under the Care Act 2014

The Care and Support Statutory Guidance defines discriminatory abuse as ‘forms of harassment, slurs or similar treatment because of race, gender and gender identity, age, disability, sexual orientation or religion’.

Any unequal treatment based upon age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex, or sexual orientation (protected characteristics) is discriminatory abuse.

Specific examples include, but are not limited to:

  • Verbal abuse, derogatory remarks or inappropriate use of language related to a protected characteristic;
  • Acts or comments motivated to harm and/or damage, including inciting others to commit such acts;
  • Denying access to communication aids, or not allowing access to an interpreter, signer, or lip-reader;
  • Harassment or deliberate exclusion on the grounds of a protected characteristic;
  • Denying basic rights to healthcare, education, employment, and criminal justice relating to a protected characteristic;
  • Substandard service provision relating to a protected characteristic.
Need to know

The protected characteristics are set out in law under the Equality Act 2010. Further information about the Equality Act 2010 can be found in Section 2, The Wider Legal Context below.

2.1 The Equality Act 2010

The Equality Act 2010 makes it unlawful to discriminate against anyone or treat them unfairly because of certain personal characteristics. They are called ‘protected characteristics’.

The protected characteristics are:

  • Age;
  • Race, including colour, nationality, ethnic or national origin;
  • Sex;
  • Gender reassignment;
  • Disability;
  • Religion or belief;
  • Sexual orientation;
  • Marriage or civil partnership;
  • Pregnancy and maternity.
Need to know

Although the above are the protected characteristics defined by law, they are not the only characteristics that can lead to discrimination. Examples of other characteristics include (but are not limited to) adults with care leaver status, former Armed Forces personnel and adults who experience homelessness.

There are 4 types of discriminatory behaviour under the Equality Act 2010:

Type Description and example Applies to
Direct discrimination When someone is treated less favourably because of a protected characteristic (actual or perceived), or because of their association with someone who has a protected characteristic. All protected characteristics.
Indirect discrimination When policies, procedures, ways of working or rules are applied equally to everyone and put people with a certain protected characteristic at a disadvantage compared with those who do not share that characteristic. All protected characteristics except for pregnancy and maternity.
Harassment Intentional or unintentional behaviour that violates dignity and creates an intimidating, hostile, degrading, humiliating or offensive environment. All protected characteristics except for pregnancy and maternity, marriage, and civil partnership.
Victimisation When someone is treated unfairly as a result of making a complaint about discrimination. All protected characteristics.

The public sector Equality Duty

The Equality Act 2010 also sets out the public sector Equality Duty. This duty requires public authorities to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different groups.

In addition to the public sector Equality Duty, the local authority and its partners must be able to:

  • Recognise discrimination and discriminatory abuse;
  • Identify discriminatory practice, structural and institutional discrimination, both intentional and unintentional; and
  • Identify areas of activity that local authorities and their partners need to address to deliver better outcomes for people across all the equality strands.

Further information and guidance

For further information and guidance about the Equality Act, including the public sector Equality Duty, see: Equality Act 2010 guidance (GOV.UK).

2.2 The Human Rights Act

The Human Rights Act 1998 sets out the basic rights of everyone. You cannot prevent someone from exercising one of their rights without good reason, often without legal authority having been granted by a court. You also cannot discriminate against someone for exercising their rights. Public Authorities have a duty not to breach someone’s rights under the Human Rights Act.

Each right in the Act is referred to as an 'article'.

All articles could apply but the following articles are particularly relevant to the area of discrimination, as they give legal recognition to difference:

Article 8: Respect for family and private life, home, and correspondence.

Article 8 includes the right to:

  • Determine your sexual orientation;
  • Develop your personal identity.

Article 9: Freedom of thought, belief, and religion.

Article 9 includes the right to:

  • Wear religious clothing;
  • Talk about your beliefs and take place in religious worship;
  • Change your beliefs or religion at any time.

Article 9 incorporates all religious beliefs, but also beliefs such as atheism, veganism, and pacifism.

Article 10: Freedom of expression.

Article 10 includes the right to hold your own opinions and to express them freely.

Article 12: Right to marry and start a family.

Article 12 is the right to marry anyone you choose (within the realms of the law). This right includes transexual people.

Article 14: Protection from discrimination in respect of these rights and freedoms.

This article makes it illegal to restrict rights due to a protected characteristic of the Equality Act 2010.

Further information about the Human Rights Act

For further information and guidance about the Human Rights Act 1998, including the other articles, see: The Human Rights Act (Equality and Human Rights Commission).

2.3 The Mental Capacity Act 2005

Principle 1 of the Mental Capacity Act makes it unlawful to make assumptions about the mental capacity of anyone aged 16 or above based solely on any of the following:

  • Age;
  • Appearance;
  • Behaviour;
  • A physical or mental health condition;
  • Having been found to lack capacity to make a previous decision.

For further guidance, see: The Mental Capacity Act 2005 Resource and Practice Toolkit.

3. Signs and Indicators of Discriminatory Abuse

Discrimination often manifests itself alongside or within other types of abuse. Therefore, depending on the type of abusive behaviour taking place, there could be many different signs and indicators.

For further information and guidance about the different types of abuse and neglect, including signs and indicators, see: Types and indicators of abuse (SCIE).

Need to know

It is important to note that each experience of discrimination will be unique. For example, the experience of two women that each face gender-based discrimination with not be the same. Adults may also have more than one protected characteristic and be discriminated against on the basis of each (for example, being a woman and having a disability); they may also face further disadvantage because of their combined protected characteristics.

4. The Safeguarding Response

The safeguarding response to any concern raised should seek to establish whether a protected characteristic may be a direct or indirect aggravating factor. Where this is the case, if the police are not already involved, they should be notified.

When identifying a protected characteristic, always remember that protected characteristics may be hidden or unknown, including religion, disability or sexual orientation.

4.1 Talking to the adult at risk

This section has been adapted from Discriminatory abuse: a briefing for practitioners (Local Government Association).

The adult at risk may find talking about their protected characteristic difficult, so may not openly disclose the abuse they are or may be experiencing. They may not want to draw attention to the protected characteristic itself, could feel stigma or shame or may have a mistrust of professionals and services.

Conversations should always be sensitive and consider how the adult at risk can best be supported to communicate about their experience. This should consider any communication needs they may have, or any need for advocacy or peer support.

The following are some suggestions for starting a conversation with an adult at risk to try and establish whether discriminatory abuse is occurring.

“People may be targeted by others because they are seen as different – possibly because of (e.g., ethnicity, sexuality, age, disability etc.). Do you think this might connect with your own experience and what has happened to you? (If relevant) Can you tell me more about this?”

“Have you ever felt unsafe because of your (e.g., ethnicity, sexuality, age, disability etc.)? Can you tell me more about that? Can you remember a time when this happened? Do you think this might be true of what has happened this time?”

“You have told me that you believe (e.g., racism, homophobia, ageism, ableism etc.) may have motivated the abuse you experienced. Does this (e.g., racism, homophobia, ageism, ableism etc.) affect your ability to feel safe and to participate in your community, or meet your needs on a more general basis? Can you tell me about a time when you felt this way? (If relevant) Do you think this might still be happening? Do you think this might this happen in the future?”

Need to know

If an adult at risk says that discrimination has not taken place, always think about any barriers to disclosure that may be present.

4.2 Making Safeguarding Personal

As part of Making Safeguarding Personal, all agencies involved should ensure that the adult at risk is not placed at any disadvantage during any part of the process because of a protected characteristic (an anti-discriminatory approach).

This includes, but is not limited to:

  • Identifying whether the adult at risk is likely to experience any difficulty engaging in the safeguarding process because of a protected characteristic, and then putting appropriate measures in place to facilitate and maximise their engagement.
  • Sense checking decisions made to ensure that the rationale is not based on an assumption relating to a protected characteristic.
  • Supporting adults at risk to access local community services that support those with a protected characteristic (for example BAME, LGBT+ or older adult) services.

Note: See Section 7, Other Information and Resources or some useful links and resources.

Need to know

When identifying a protected characteristic, always remember that protected characteristics may be hidden or unknown, including religion, disability or sexual orientation.

As part of Making Safeguarding Personal, the safeguarding response must also be sensitive to cultural needs or heritage. This is known as culturally appropriate care (or culturally competent care).

For further information, see: Culturally appropriate care (Care Quality Commission).

5. Safeguarding Adult Reviews (SARs)

Where a Safeguarding Adult Review (SAR) is carried out, it should seek to establish any role that discrimination may have had in both the abuse or neglect and the safeguarding response itself.

Need to know

Several SARs have identified discrimination as either leading to or being a feature of the abuse that subsequently led to the death of an adult at risk. This included high profile reviews into the cases of Winterbourne View (2012), and Steven Hoskin (2007).

For further information, see: Discriminatory abuse in Safeguarding Adults Reviews and Serious Case Reviews (part of LGA briefing).

6. Discriminatory Abuse Self-Assessment Tool

The Local Government Association (LGA) has developed a discriminatory abuse self-assessment tool for use by councils, Safeguarding Adult Boards (SABs), safeguarding leads and practitioners from all sectors.

This tool aims to support those using it to:

  • Better identify, report, and analyse activity;
  • Be aware of any bias and challenge discriminatory abuse in their practice;
  • Develop processes and policies on tackling discriminatory abuse; and
  • Embed good practice to deliver good equality outcomes for adults who have care and support needs.

See: Discriminatory abuse self-assessment tool: safeguarding adults.

7. Other Information and Resources

7.1 Practice guidance

Discriminatory abuse: a briefing for practitioners (LGA).

7.2 Specialist support and services

The following resources contain information, advice, and links to resources for people that may be affected by discriminatory abuse:

Mental Health Foundation: Black, Asian and minority ethnic (BAME) communities.

Age UK: Lesbian, gay, bisexual and trans (LGBT+) information and advice.

Disability Rights UK: Disability hate crime links.

Mencap: Mate and hate crime.