5 | Case Studies: Challenges for insurers However, the insurer may be able to rely on the no data exemption provided any such discrimination is reasonable having regard to other relevant factors. These factors may include: • practical and business considerations • whether less discriminatory options were available • the customer’s particular circumstances • the objects of the ADA, especially eliminating age discrimination • all other relevant factors of the case. Option C may represent the least discriminatory option, given everyone over 90 will be treated equally. However, this will still need to be implemented carefully. For example, a sharp discontinuity at age 90 to a much higher ‘average’ rate might be argued as unfair by someone aged 91. While insurers must be careful that any assumptions are based on reasonable evidence, it may be reasonable for TIPL to assume that health risks continue to increase as people age over 90, such that Option A is reasonable. Medical opinions, especially from those with medical assistance backgrounds, could be used to provide additional evidence for such assumptions. It is also less discriminatory than Option B, given the less significant increase in premiums. Option B poses the greatest risk of being discriminatory, given that it results in significantly higher premiums for people over 90, there is limited evidence to support it, and other less discriminatory options were available, such as Option C or Option A. Moreover, as a decreasing number of people over 90 travel, the significant premiums may also not be considered reasonable when weighing the impact on customers against the financial impact for the insurer. The circumstances of the individual are relevant in determining whether any discrimination is reasonable. In relation to the insurance exemption under the DDA, the courts have said that decisionmaking processes which are formulaic or which tend to stereotype individuals by reference to their disability should be avoided.76 The courts may adopt a similar approach in relation to age. Further information about the customer seeking insurance, such as medical opinions, may be relevant in assessing whether they do present a significantly higher risk that justifies the significantly increased premium. Embedded product TIPL is considering a cut off, such as limiting access to certain claim types to people over 60 (either in the form of a lower sum insured, higher excess, or exclusion of certain forms of claims altogether). Whilst information about age is not collected, these conditions would be made clear in the product documentation.77 TIPL believes that this will create a more affordable product which is fairer to the younger cohort than if the same product were to be offered to all age groups. However, there are concerns that an age cut-off is not appropriate in all situations, given that some elderly people will be of similar health (and hence similar risk) to some younger people. 34