Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CP/3376/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Robin C A White

 

Decision: The decision of the tribunal of 14 June 2012 is erroneous in law. I set it aside. I remake the decision of the tribunal.

 

My decision: The appellant is entitled to State Retirement Pension at the weekly rate of £126.69 from 6 July 2010 (payable from the following Monday 12 July 2010) made up as follows:

Basic Pension £97.65

Basic Pension  Increments £19.95

Pre 1997 Additional Pension £2.83

Pre 1997 Additional Pension Increments £0.58

Graduated Retirement Benefit £4.73

Graduated Retirement Benefit Increments £0.95

Total £126.69

The appellant is further entitled to arrears of State Retirement Pension from 27 April 2006 to 11 July 2010, such arrears to be calculated by the Secretary of State.

 

 

REASONS FOR DECISION

The issue in this appeal 

1.       The issue in this appeal is whether the appellant, as a male-to-female transsexual, is entitled to retrospective payment of a retirement pension from her sixtieth birthday in 1997.

Factual history and context

2.       The claimant, who was born male on 15 October 1937, underwent gender reassignment surgery in 1995. At the time, the appellant was married and remains married. She reports that the thought of divorce is abhorrent to her.

3.       According to her evidence to the tribunal, the appellant made an enquiry about State retirement pension some time in 1997 prior to her sixtieth birthday. She was advised by the Department that she had no entitlement to a retirement pension until she reached the age of 65.

4.       There appears to be some dispute as to whether the appellant made a claim for State retirement pension in 2002, but there is no dispute that retirement pension was put in payment from the appellant’s sixty-fifth birthday in October 2002.

5.       On 6 July 2010, the appellant wrote to the Department having become aware of the case of Timbrell v Secretary of State for Work and Pensions [2010] EWCA Civ 701 stating that she wished to make a formal application for back payment of State retirement pension (with interest) from 15 October 1997 to 15 October 2002.

6.       On 21 April 2011, following correspondence between the Department and the appellant, a decision maker superseded the 2002 decision awarding retirement pension to award an increase of State retirement pension. The increase in the amount of the weekly pension arose because of the deferral of the pension from 1997 to 2002.

7.       The appellant has appealed against that decision maintaining that her circumstances are exactly the same as those of Christine Timbrell in the Timbrell case. She maintains that she is entitled to be paid the pension for the five years in issue, and not merely now to be paid the increase in the weekly amount of the pension because it was deferred.

8.       The decision was looked at again but was not changed.

9.       When the appeal response was being prepared, it was discovered that the appellant was entitled to a “Pre 1997 Additional Pension” which had not been taken into account. The decision of 21 April 2011 was revised on 5 September 2011 to provide as follows:

[The appellant] is entitled to State Retirement Pension at the weekly rate of £126.69 from 6 July 2010 (payable from the following Monday 12 July 2010) made up as follows:

Basic Pension £97.65

Basic Pension  Increments £19.95

Pre 1997 Additional Pension £2.83

Pre 1997 Additional Pension Increments £0.58

Graduated Retirement Benefit £4.73

Graduated Retirement Benefit Increments £0.95

Total £126.69

10.   The appellant has appealed against this revised decision on the same grounds as her appeal against the earlier decision.

11.   The decision maker then decided that the effective date of the revision should be 27 April 2006 having regard to the decision of the Court of Justice of the European Communities of 27 April 2006 in Case C-423/04 Richards v Secretary of State for Work and Pensions, reported as R(P) 1/07. The tribunal was invited to substitute 27 April 2006 in the decision recorded in paragraph 9 above for the date 6 July 2010.

12.   In her oral evidence to the tribunal, the appellant confirmed that she had received a lump sum payment which she understood to be the arrears of State retirement benefit consequent upon this change of date.

13.   The appeal came before the tribunal on 14 June 2012. The appellant attended, and the Secretary of State was also represented. There is a helpful record of the proceedings. The outcome was that “The decision of the Secretary of State issued on 05/09/2011 is confirmed.” A statement of reasons was subsequently provided.

14.   The appellant has appealed against the decision of the tribunal, and the appeal now comes before me with the permission of a Judge of the First-tier Tribunal. The Secretary of State does not support the appeal.

The grounds of appeal

15.   The appellant has repeated her argument that her circumstances are the same as those of Christine Timbrell. She also says that the only thing which prevented her making a claim in 1997 was advice received from the Department.

Did the tribunal err in law?

16.   The tribunal made findings of fact to the effect that the appellant made only an enquiry in 1997 and did not proceed to make a claim in writing. The tribunal also finds:

13. It seemed to be common ground between the parties that the advice given to the appellant in 1997 was correct at that time but is not now correct in light of the case of Richards and Timbrell along with the Gender Recognition Act.

14. The Tribunal’s view was that as there had been no claim to pension prior to 2002 it would not be possible to backdate any payment beyond that already made by the Secretary of State following on the case of Richards and Section 27 of the Social Security Administration Act 1992.

17.   The reference here should be to section 27 of the Social Security Act 1998.

18.   The Secretary of State responds that the tribunal has made the only decision open to them on the authority of the Richards and Timbrell cases  taken together with R(P) 1/09 and R(P) 2/09.

Statutory provisions of national law

19.   Under section 44 of the Social Security Contribution and Benefits Act 1992 it is a basic condition of entitlement to a Category A retirement pension that (in addition to meeting contribution conditions) the claimant has attained the relevant pensionable age, which for a man is 65 and for a woman born before 6 April 1950 is 60.

20.   “Man” and “woman” have for this purpose been held to bear their ordinary meanings in United Kingdom law, so that a person’s pensionable age depends on his or her gender at birth, subject only to any change now recognised under the Gender Recognition Act 2004: R(P) 1/80; R(P) 2/80 and note also Bellinger v Bellinger [2003] UKHL 21.

21.   No specific issues under the Gender Recognition Act 2004 would seem to arise in this case. So I do not set out any provisions from this Act of Parliament.

22.   Under section 1 of the Social Security Administration Act 1992 (the Administration Act) it is a further and general precondition of any entitlement to benefit that a claim for it must have been made in the prescribed manner and within the prescribed time.

23.   For Category A retirement pension the time so prescribed at the material time was up to four months before reaching pensionable age and up to twelve months after any past day for which payment of the pension is being sought: see regulation 19 of the Social Security (Claims and Payments) Regulation 1987 (the Claims and Payments Regulations). What amounts to a claim for this purpose is governed by regulations 4 and 6 of the same regulations. In the case of retirement pensions (at the material time) claims had to be made in writing on a form approved for the purpose or in such other manner, being in writing, as the Secretary of State may accept as sufficient in the circumstances of any particular case. The date on which such a claim is made is the date on which it is received in an appropriate office of the Department.

24.   Claims otherwise than in writing by telephone call to a number specified for the purpose by the Secretary of State only became possible from 2 May 2005 following amendments to the Claims and Payments Regulations.

25.   There is no obligation to claim a State retirement pension from the earliest, or indeed any other, date. There is provision to request backdating of any claim for twelve months, but if that is not done, then the pension is said to be deferred and is increased by a small percentage for each complete week between the earliest date it could have been awarded and the date from which it is awarded. This is done automatically when a pension is claimed after the earliest date and does not require any separate claim from that for the pension itself.

Case law

26.   Case C-423/04 Richards v Secretary of State for Work and Pensions, reported as R(P)1/07 is the decision of the Court of Justice of the European Communities on a reference from the Social Security Commissioner. It concerns the application of Directive 79/7/EC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, [1979] OJ L6/24 in the context of retirement pensions for male-to-female transsexuals.

27.   On 27 April 2006, the Court of Justice ruled:

38. … Article 4(1) of Directive 79/7 must be interpreted as precluding legislation which denies a person who, in accordance with the conditions laid down by national law, has undergone male-to-female gender reassignment, entitlement to a retirement pension on the ground that she has not reached the age of 65, when she would have been entitled to such a pension at the age of 60 had she been held to be a woman as a matter of national law.

28.   The Court of Justice said there was no need to limit the temporal effect of its judgment. The Court of Justice effectively ruled that the legislative requirements prior to the entry into force of the Gender Recognition Act 2004 were discriminatory and could not stand in the face of the prohibition of discrimination in Article 4.

29.   In R(P) 1/09, the claimant was a male-to-female transsexual who reached the age of 60 in 2002 when she was still living as a man. The Gender Recognition Act 2004 entered into force in April 2005. The claimant completed her gender reassignment surgery in December 2005 and obtained a full gender recognition certificate in December 2006.

30.   The claimant made enquiries of the Department in January 2005, but did not make a claim in writing accepted as meeting the requirements of the Claims and Payments Regulations until 3 May 2006. The claimant requested backdating to 10 January 2005 (when she had first raised enquiries of the Department).

31.   The claim was refused on the grounds that the claimant’s entitlement to a State retirement pension as a male-to-female transsexual depended on her holding a gender recognition certificate under the Gender Recognition Act 2004. That certificate was not, in fact, issued until December 2006. A tribunal confirmed this decision and the appeal against that decision came before a Tribunal of Commissioners.

32.   The Tribunal of Commissioners noted the decision in Richards, but nevertheless ruled that any claims were subject to the normal twelve month time limit on arrears of possible entitlement. The Tribunal of Commissioners said:

21. … a provision of the national law such as that in section 1 of the Administration Act and the [Claims and Payments Regulations] …, placing a time limit on the retroactive effect of claims for benefit so as to limit the past period in respect of which arrears of benefit may be payable, is not precluded by Community law from applying to a claim based on the direct effect of the Directive. This is so even where the period concerned is one in which the Member State remains in breach of its obligation to bring its own legislation into compliance with the principle of equal treatment, provided that the limit is one of general application so that the claim based on Community law is not subject to any less favourable conditions than those applying to similar domestic claims … .

33.   The same Tribunal of Commissioners decided R(P) 2/09 where the facts were somewhat different. Here the claimant was a male-to-female transsexual who lived as a man until shortly before reaching the age of 60 in July 1994. She claimed and was awarded a State retirement pension in 1999 from the date she attained the age of 65. The claimant obtained a full gender recognition certificate in May 2005. There was a recalculation of her retirement pension from June 2005. She asked for her retirement pension to be backdated to her sixtieth birthday on the basis of the interpretation of Directive 79/7 in Richards. Her claim was refused on the basis that she had not claimed at the age of 60 and that there was a twelve month time limit for claiming State retirement pension.

34.   The Tribunal of Commissioners ruled that her claim was not determined solely by the provisions of the Gender Recognition Act 2004, but any claim for a pension for the earlier period by virtue of Directive 79/7 was subject to the same general procedural requirements, time limits and restrictions as any corresponding applications under national law.

35.   The Tribunal of Commissioners had this to say on the application of the national requirements:

38. … . There is no scope in the national procedure for the making of a fresh or separate claim for a category A retirement pension already duly claimed, awarded and currently in payment, and there are good reasons why that should be so. Unlike some other benefits which may be claimed and awarded more than once for different or repeated periods while specified qualifying conditions are met, such a pension is a single benefit which must (with immaterial exceptions) be claimed and awarded once and for all, for life, from a single specified starting date which itself governs the rate at which the pension continues to be payable throughout its duration. Any later application for such a pension to be paid instead from a different starting date therefore necessarily involves reopening the whole basis of the existing award, rather than adjudicating on the application as if it were a fresh claim on its own.

39. It follows that the only relevant way in which the application of 11 May 2006 fell to be considered, and should have been considered, was as one for the claimant’s existing award of category A retirement pension to be corrected so as to give effect to her equal treatment rights under the Directive, subject to the same limits and restrictions as any other application to alter the date or amount of an existing pension award which has otherwise become final.

40. The powers of alteration (and the only relevant powers) that required considering were those … of revising the existing award under section 9 of the 1998 Act or superseding it with another decision under section 10; and the reason the exercise of those powers required to be considered in relation to the existing award was that both the original decision in July 1999 determining the start date and the rate of her pension entitlement, and the later one of 15 June 2005 altering the rate under that award from 9 May 2005, had since been shown to have been erroneous in law.

41. That was shown by the decision in Richards that a male-to-female transsexual was entitled to equal treatment with other women in relation to retirement pensions; and for the reasons explained in [R(P) 1/09] this had the consequence that a person in the position of the claimant had, under the principle of direct effect and even before the Gender Recognition Act, an increased underlying entitlement in respect of the period since she first qualified for such equal treatment under the Directive, which neither of those awarding decisions had recognised.

42. As was correctly submitted by Mr Heath on behalf of the Secretary of State the failure of those decisions to give effect to the entitlement thus shown by Richards to have existed invokes the powers of correction for error of law, rather than those for change of circumstances, because of the principle that judicial interpretation of existing legislation is declaratory. It reveals the meaning that always ought to have been applied, and as noted elsewhere there was no temporal limit on the effect of the decision in Richards, so that principle applies here without qualification.

43. We accept the Secretary of State’s further submission that the error thus identified falls outside the definition of “official error” …, because it was only shown to have been an error of law by the interpretation declared by the ECJ in Richards. Whether the decision that “showed” it to be so for this purpose was the ruling of the ECJ itself, or the subsequent one of the Commissioner implementing it, is immaterial in this case: the consequence either way must be that there is no power on this ground to revise either or both of the awarding decisions so as to correct them back to their original dates.

44. Accordingly … the only relevant power to be exercised in response to the claimant’s application was that to supersede the current pension award under section 10 and regulation 6(2)(b) cited above, with effect from the date of the application on 11 May 2006, which was accepted by the Secretary of State as the correct date under section 10(5) for this purpose if, contrary to his main submission, the question of using the superseding power arose in this appeal at all.

36.   Timbrell v Secretary of State for Work and Pensions [2010] EWCA Civ 701 concerned a claimant who is a male-to-female transsexual who had been born male on 17 July 1941. She married. In October 2000 she had gender reassignment surgery. She remains married and living with the partner to whom she is married.

37.   On 6 August 2002, the claimant applied for a State retirement pension and asked for this to be backdated to her sixtieth birthday (17 July 2001). No action was taken on this claim, and the award of a retirement pension was not made until 2006. Some years later, the Secretary of State decided that there had been a valid claim for a retirement pension on 21 August 2002 upon which no decision had been made. This proved to be of great significance.

38.   In March 2006 the claimant made a further claim for a retirement pension asking for it to be back-dated to her sixtieth birthday. On 11 April 2006, the Secretary of State awarded a State retirement pension but only from the claimant’s sixty-fifth birthday.

39.   The appeals wound their way to the Court of Appeal. After reviewing the national legislation and the case-law authorities, the Court of Appeal considered that the claimant’s rights between 6 August 2002 (the date of her first communication in August 2002 with the Department) and 4 April 2005 (the date the Gender Recognition Act 2004 entered into force) should be considered on the basis of the law and the legislation in force at the time. The provisions of the Gender Recognition Act 2004 “have no relevance to the law or events prior to its passing or the date it came into effect.” (para. 38).

40.   The Court of Appeal went on to recount the effect of the Richards decision which was that (certainly prior to the passing of the Gender Recognition Act 2004) United Kingdom law was in breach of European Community law in having no mechanism to enable acquired gender to be recognised so as to enable male-to-female transsexuals to obtain a retirement pension at the age of 60 where that is the State pensionable age for a woman. The Secretary of State was accordingly obliged to recognise the claimant’s entitlement to a retirement pension from the date she reached the age of 60. The precise form of the declaration of the claimant’s rights was left for later agreement between the court and counsel for the parties. The form of that declaration is not in the bundle before me.

41.   The Secretary of State takes the view that a significant feature in the Timbrell case is that there had been a valid claim in 2002 upon which the Secretary of State had not made a decision. This—and only this—allowed back-dating of the claim made by the claimant in the Timbrell case.

42.   For the sake of completeness, I will mention the judgment of the Court of Human Rights in Strasbourg in Grant v United Kingdom (App 32570/03) (2007) 44 EHRR 1. This case concerned a male-to-female transsexual born a male on 22 December 1937. Her claim to a State retirement pension in December 1997 on reaching the age of 60 was refused, and she was told she was not entitled to a retirement pension until reaching the age of 65. Her appeals to the local tribunal and to the Social Security Commissioner were dismissed. Following the judgment of the Court of Human Rights in Goodwin v United Kingdom (App 28597/95) (2002) 35 EHRR 18, the claimant renewed her claim for a pension backdated to the age of 60. Following the judgment of the House of Lords in Bellinger v Bellinger, [2003] UKHL 21, the claimant was advised that she had no prospects of success in a pending appeal to the Court of Appeal. She then made an application to the Court of Human Rights in Strasbourg against the United Kingdom.

43.   The judgment in Grant established that refusal to recognise the acquired gender of a claimant for pension purposes constituted a breach of Article 8 of the European Convention on Human Rights from 5 September 2002 (the date of the Court’s judgment in the  Goodwin case) until the entry into force of the Gender Recognition Act 2004. The Court of Human Rights said:

[Linda Grant’s] victim status came to an end when the Gender Recognition Act 2004 came into force, thereby providing the applicant with the means on a domestic level to obtain the legal recognition previously denied. (para. 41)

44.   On the question of entitlement to a pension, the Court of Human Rights said:

Contrary to the applicant’s argument, the Court did not make any finding in Christine Goodwin that the refusal of a pension at an earlier time violated that applicant’s rights. The differences applicable to men and women concerning pensionable ages and National Insurance contributions were adverted to in the context of examining the consequence of the lack of legal recognition of transsexuals.

The appellant’s arguments

45.   The appellant continues to maintain that her circumstances are on a par with those of Christine Timbrell. Though she does not specifically address the point made by the Secretary of State that the fact that Christine Timbrell had a valid claim made in 2002 upon which no decision had been made, she does make it quite clear that she considers that the Secretary of State is drawing distinctions without real substance. In essence, she is arguing that the Secretary of State is weaselling out of implementing the equal treatment judgments in a manner which is erroneous in law.

The Secretary of State’s arguments

46.   The Secretary of State has added very little in the submission to me to what had been said to the tribunal. I found it a rather thin submission, and decidedly unhelpful on the Strasbourg case-law, where the significance of the judgment in Grant v United Kingdom is simply ignored.

47.   However, the Secretary of State says that he has done as much as is possible under the current state of the law to ensure that the appellant’s change in gender is recognised in relation to her pension entitlement.

The Upper Tribunal’s assessment

48.   Let me first of all dispose of a matter related to the form of the First-tier Tribunal’s decision.

49.   The Secretary of State had invited the tribunal to substitute a different date in its decision on the appeal: replacing 6 July 2010 with 27 April 2006. This was of considerable significance, since it meant that the appellant was entitled to a significant sum in arrears of pension. The record of proceedings helpfully records the appellant as confirming  that those arrears of around £5,000 had been paid.

50.   The tribunal has simply confirmed the decision of the Secretary of State of 5 September 2011. That is technically in error, since a fresh decision was required indicating that the change was to take effect from 27 April 2006, but nothing really turns on this to the advantage of the appellant. The decision which the Secretary of State invited the tribunal to substitute has been implemented. I do, however, propose, at the very least, to set aside the tribunal’s decision and to remake the decision to take account of revision for error of law back to 27 April 2006. But that scarcely scratches the surface of the appellant’s concerns.

51.   The Secretary of State has taken a narrow view of the impact of the judgment in the Timbrell case. In the light of the other authorities, particularly R(P) 1/09 and R(P)2/09, a late claim seeking payment of a retirement pension by a male-to-female transsexual can only succeed where there is a valid claim in the past upon which the Secretary of State has not yet made a decision.

52.   I would accept that the Court of Appeal in the Timbrell case did not address the procedural aspects of claiming and revising or superseding any earlier decision. In that regard it is unhelpful, since it gives rise to false expectations. However, I cannot ignore the reported decisions which establish that late claims for earlier periods when a male-to-female transsexual was between the age of 60 and 65 and did not receive a State retirement pension are subject to the ordinary rules about revisions and supersessions of decisions when claims in respect of this period are made late, when a decision on a retirement pension claim has already been made, and when there is no valid claim from an earlier date upon which no decision has been taken.

53.   In the appeal before me, the tribunal has found that the appellant did not, in 1997, make a valid claim under regulation 4 of the Claims and Payments Regulations as then in force. At that time claims had to be in writing on a form approved for the purpose, or in writing in a form which the Secretary of State was willing to accept as a claim. Telephone claims were not introduced until 2005.

54.   The tribunal has further found that the appellant made an enquiry in 1997, and was advised correctly in relation to what the law was then considered to be. It was not until the Richards judgment in 2006 that doubt was cast on that position, and it was not until the entry into force of the Gender Recognition Act 2004 that matters could be said to be in any way put right.

55.   The Secretary of State has, after a number of reconsiderations, decided that the appellant’s request for a change to her pension entitlement should take effect from 27 April 2006 (the date of the judgment in the Richards case) and not the date on which she requested the change (6 July 2010). I agree with that. This is, of course, favourable to the appellant, but does not give her everything that she seeks.

56.   In this case the first decision on entitlement to a State retirement pension was made in 2002. There was no earlier claim. Any change to the decision awarding the retirement pension must be by revision or supersession; see R(P) 2/09. I do not read the Court of Appeal’s decision in the Timbrell case as affecting that position.

57.   In this case, the Secretary of State is precluded by the national scheme for revising or superseding awards from going back to the period 1997 to 2002 (the years when the appellant was aged 60 but not yet 65) on an application for revision or supersession made in July 2010. The Secretary of State has gone back as far as is permissible in seeking to put matters right in this case.

58.   That is, in essence what the tribunal decided. But their decision did not reflect the revised decision they were invited to make. For that reason alone, I set their decision aside. I remake the decision by stating the current weekly entitlement as at July 2010, and making clear that the revision of the entitlement going back to 27 April 2006 gives rise to arrears of retirement pension (which have already been paid to the appellant). The effect is to give the appellant something, but far short of what she is seeking.

59.   My formal decision in substitution for that of the tribunal appears at the top of this decision.

 

 

 

Signed on the original Robin C A White

on 26 March 2013 Judge of the Upper Tribunal