[2009] UKUT 49 (AAC)

UKUT-AAC
[2009] UKUT 49 (AAC)
[2009] UKUT 49 (AAC) · 2009-03-12
[1][2009] UKUT 49 (AAC) (12 March 2009) Retirement pensions other IN THE UPPER TRIBUNAL Appeal No. CP/1161/2007 ADMINISTRATIVE APPEALS CHAMBER Before Upper Tribunal Judge Jupp This decision is given in exercise of the transitional provisions contained in paragraphs 2 and 3 of Schedule 4 to the Transfer of Tribunal Functions Order 2008 which came into force on 3 November 2008. Decision: My decision is that the appeal tribunal ("the tribunal") erred in law in its decision given on 20 November 2006 under Registration No. 024/06/02908. That does not, however, assist the claimant as under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set aside and remake the tribunal's decision to the like effect which is:
"The claimant is not entitled to a category A state retirement pension before her 65 th birthday, because she does not satisfy the criteria to be treated as a woman in all respects, which (subject to satisfaction of other legislative conditions) could entitle her to receive a Category A state pension at the age of 60 under Directive 79/7/EEC."
REASONS FOR DECISION Claim history and the legal context. The claimant is a male-to-female transsexual who was born a male on 17 July 1941, marrying in that gender and living as a man until the 1990s. From the late 1990s, following treatment for transsexualism, the claimant has lived exclusively in her female role, changing her name, obtaining a new passport, registration with her professional body and bank accounts in that name, together with a new national insurance card. In October 2000, she had gender reassignment surgery. She remains married to her wife. Shortly before her 60 th birthday, in accordance with what I understand to be standard practice, the claimant was advised by her local Employers Compliance that as she was regarded as male, she would not be able to claim her pension in July 2001 when she reached the age of 60.[2]Almost exactly a year later, on 11 July 2002, the European Court of Human Rights (ECtHR) delivered its judgment in Goodwin v United Kingdom (Application no:28957/95 ) . That case was brought by a post-operative male-to-female transsexual, alleging violations of the European Convention on Human Rights in respect of the legal status of transsexuals in the United Kingdom, and particularly their treatment in the sphere of employment, social security, pensions and marriage. The Court ruled that there had been a violation of Articles 8 (respect of private life) and 12 (right to marry) of the Convention. With regard to Article 8, the Court referred to the lack of legal recognition given to the applicant's gender reassignment and noted in particular that the fact that the applicant remained a male for legal purposes had effects on her life "where sex is of legal relevance and distinctions are made between men and women, as, inter alia , in the area of pensions and retirement age" (paragraph 76). With regard to Article 12, the court found no justification for barring transsexuals from enjoying the right to marry in their assigned gender in all circumstances.[3]Following this judgment, the claimant wrote to the Inland Revenue National Insurance Contributions Office on 6 August 2002 (page 92), setting out her history and concluding:
"I therefore request that I should now receive my state pension, and that this is backdated to the 17 July 2001. This claim is made in the light of the European Court of Human Rights finding that the United Kingdom had breached Article 8."
By letter of 3 September 2002 the Inland Revenue responded: "The implications of the recent European Court of Human Rights ruling, about the treatment of transsexuals in the United Kingdom, are yet to be considered by the British Government. Until such time as the British Government issues a directive on the issues, there will be no material changes to the administration of Social Security accounts. I am afraid that our records will continue to reflect the gender recorded on your birth certificate." (page 93)[4]On 13 December 2002, the Government then brought forward general proposals which resulted in the passing of the Gender Recognition Act 2004 (GRA) on 1 July 2004, which came into force on 4 April 2005. The draft bill was published on 11 July 2003.[5]In the meantime, another male-to-female transsexual, Ms Richards, who was in a similar position to the claimant, had claimed but had been refused a pension at 60. She appealed to the Commissioner on the grounds that such a refusal was contrary to the relevant European Economic Community Directive, 79/7/EEC. The Directive provides in Article 1:
"The purpose of this Directive is the progressive implementation, in the field of social security ……….of the principle of equal treatment for men and women in matters of social security, hereinafter referred to as "the principle of equal treatment"
. Article 4 then states:
"The principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns: the scope and the conditions of access thereto, the obligation and the calculation of contributions, the calculations of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits."
[6]The Commissioner made a reference to the European Court of Justice (ECJ) for a preliminary ruling. In December 2005 the Advocate General gave a favourable Opinion in Richards v The Secretary of State for Work and Pensions (C-423/04 ) to the effect that the refusal to grant a pension at 60 to a person in Ms Richards' position was contrary to Directive 79/7. The claimant's evidence was that, on the basis of this Opinion and anticipating that it would be accepted by the ECJ, when she was invited in March 2006 to apply for her pension from the age of 65, she duly made her claim, but backdated it to her 60 th birthday. Her claim was received by the Pension Service on 21 March 2006.[7]On 27 April 2006, the ECJ held in Richards ((C-423/04 ) [2006]) that: 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. ………… 44…… there is no need to limit the temporal effect of this judgment".[8]On 11 April 2006, the decision maker decided that the claimant was entitled to a category A state pension at the weekly rate of £93.59 from and including her 65 th birthday on 17 July 2006. The claimant promptly appealed on 19 April 2006 on the grounds that she had been discriminated against because of her status as a transsexual woman, submitting that there had been a breach of Directive 79/7 and breaches of the Convention under Article 8, as well as Article 1 of Protocol 1, (a state pension being a possession for the purposes of Article 1 Protocol 1) and a breach of Article 14 when considered in conjunction with each of Article 8 and Article 1 of Protocol 1.[9]The view of the submission writer to the tribunal was that Goodwin was concerned with the position as it was before the enactment of the GRA. Although the case established that there was a breach of Convention rights in denying a male-to-female transsexual a retirement pension at 60, this did not of itself change the domestic law ( Bellinger v Bellinger [2003] UK HL 21 [2003] 2AC 467 ). The change in the law had been effected when the GRA came into force and it was not retrospective (Section 9 of the GRA).[10]The tribunal was held on 20 November 2006, the claimant being present and represented, according to the record of proceedings, by her wife. The tribunal confirmed the decision of the Secretary of State. It took note of the ECJ's ruling that it was for the member state to determine the conditions under which legal recognition is given to the change of gender of a person and that, because the claimant had not obtained a gender recognition certificate, this must automatically mean that she was not entitled to legal recognition of her new gender in respect of her claim made in March 2006. On the decision notice the chairman observed:
"It might be otherwise in respect of the period between her 2002 claim and the 3.4.2005, but this is not a period which is before me, and it would be wrong for me to express any views as to any prospect of success."
The appeal.[11]The claimant sought leave to appeal against the tribunal's failure to consider the earlier period prior to the coming into force of the GRA, in the light of the ECJ's decision in Richards . Further, it was as a result of the advice that she had been given by Employment Compliance in 2001 that she had not made her claim earlier. Her application should not therefore be considered to be out of time. Finally, the requirement under the GRA to obtain a gender recognition certificate, as the tribunal's statement of reasons suggested she should do, was being challenged in the relevant European court (see Parry (Application 42971/05 ) and R & F ... Application No 34758/05 ) , both made to the ECtHR). The Commissioner having given a final decision in favour of Ms Richards (CP/428/2004) shortly after the tribunal hearing in this appeal, the claimant subsequently added this decision as a further ground in her appeal.[12]I issued preliminary directions, including a request for evidence of any material which the Secretary of State might accept as showing that the claimant had made a claim for her state pension in August 2002, the claimant having previously only referred to such a letter. The claimant was able to produce the letter in question in response. After further directions and submissions, I granted leave to appeal, observing that in the light of the recent decisions by the Tribunal of Commissioners in CP/1425/2007, CP/2862/2007 and CSP/503/2007, I was then of the view that the claimant's appeal could not succeed, but it was appropriate for the parties to have the opportunity to make their submissions.[13]The Secretary of State then advised that he had determined that the claimant did make a claim to a state pension on 21 August 2002. This claim had been refused on 18 January 2008, a decision against which the claimant had lodged an appeal. The matter before me - whether the claimant should be entitled to a state pension from 17 July 2001 - would therefore also be in issue in the appeal from the decision of 18 January 2008. He was currently considering whether to revise the decision of 18 January 2008 rejecting that claim. If it were not revised, the case would in any event proceed to an appeal tribunal and in the circumstances it was recommended that I should adjourn this matter until a final determination of the 2002 claim had been made (page 177).[14]However, in the light of paragraph 38 of CP/1425/2007, where the Tribunal of Commissioners had held that there can only ever be one claim for a category A retirement pension, that application for an adjournment was subsequently withdrawn. In a further submission made with the consent of a Legal Officer, the Secretary of State indicated that he would now support the appeal, subject to findings of fact as to whether the claimant had been living in her acquired gender for two years prior to the date from which she wished to seek recognition as a woman for state pension purposes (pages182 – 187).[15]In his submission, "…what is revealed in this case is that the claim for state pension was not made on 18 March 2006 because a claim had in fact been made in August 2002. Also the decision of 11 April 2006 had in effect refused entitlement to the period from 17 July 2001 to 11 April 2006. That decision and the decision of the tribunal upholding it was final in respect of that period under section 17(1) of the Social Security Act 1998. Therefore entitlement in that period could not be considered except by way of appeal or supersession of the decision of the tribunal under appeal to the Commissioner (see R(I) 9/63)".[16]He further submitted that the determination of the Secretary of State in respect of an event that had occurred in 2002 is not a "circumstance" which the Commissioner is prevented from taking into account by section 14(8)(b) of the Social Security Act 1998.[17]The Secretary of State now submitted that the tribunal's decision was erroneous in law in holding that the GRA provided a complete answer to the claimant's complaint because, unless she had been living in her acquired gender for six years, she could not gain recognition under the GRA until 4 October 2005 at the earliest (section 27(3) of the GRA). He submitted further that the existing marriage of the claimant should have no bearing on the matters to be considered in this case, but noting that in CP/2862/2007 the Tribunal of Commissioners "were not persuaded" that the requirement in section 4 of the GRA was contrary to European Community Law or the ECHR (paragraph 42).[18]Whilst the Secretary of State agreed with the statement by the Tribunal of Commissioners, he submitted it should be distinguished on its facts from the present appeal because in CP/2862/2007, on the findings of the Tribunal of Commissioners, the male-to-female transsexual person subject to that appeal could not be said to have made the transition from male to female until well after the GRA came into force and was accordingly subject to all the conditions laid down in that Act, including the requirement for an existing marriage to end before full legal recognition could be granted. "15…..[She] would also have had recourse to the procedure laid down in the Act for [her] marriage to be dissolved and a Civil Partnership formed. It is in the context of that procedure that I submit that the cases of Parry (Application No. 42971/05) and RF (Application No. 3574805) cited by the Tribunal of Commissioners should be understood.16. By contrast the claimant in this case asserts (and had produced some evidence to this effect) that she made the transition from male to female well before the GRA came into force. If that is correct she would have had no mechanism similar to that described above to end her marriage and form another legal partnership in the years prior to the GRA or the Civil Partnership Act. I therefore take the view that it would be contrary to Article 8 of the ECHR and as a consequence contrary to European Community Law (EC law) to apply retrospectively a condition that an existing marriage should end before a transsexual person can be said to have access to the equal treatment right in Directive 79/7.17. …..Paragraph 42 of CP/2862/07 was obiter and consequently is not binding on the Commissioner in this case." He then made recommendations for the disposal of the appeal (pages 186 – 187).[19]As I did not consider that the case might necessarily be so easily disposed of, I directed an oral hearing and indicated six issues for consideration: "a) whether conditions must be read into the recognition of the claimant's gender for the period preceding 5 April 2005 when the GRA came into force; b) if so, whether those conditions are limited to claims for retirement pension benefits; or alternatively c) whether the United Kingdom government is prevented from imposing conditions, having failed to implement fully Directive 79/7 for this period. In particular, because it would be disproportionate to impose a condition that the claimant divorce her spouse where there was no special procedure for annulling a marriage, no possibility of a civil partnership and where, in any case, the claimant would have had no knowledge of the need to meet such conditions as a requirement of having her new gender recognised; d) if it is argued that the United Kingdom government is prevented from imposing conditions, how can this be reconciled with the fact that in English law marriage can only exist between a man and a woman? e) furthermore, what would be the effect on the period after 4 April 2005 when the GRA came into force? Would there be any reason why the Act should not apply to the claimant from that date? If it would apply, does this in itself have implications for whether conditions should be applied retrospectively to the period prior to 4 April 2005? f) finally, would the pension rights of the claimant's spouse be affected if the claimant were to be treated as having become a woman by the time of her pension claim on 21 August 2002? It appears that the claimant's spouse attained 60 on 19 December 2002".[20]The oral hearing took place on 17 December in London, the claimant being present and represented pro bono by Mr Andrew Scudder of Freshfields Bruckhaus Deringer, and the Secretary of State by Mr Ben Lask of Counsel, instructed by Miss Elizabeth Yeomans of DWP Legal Services. I am grateful to them and to the claimant, for their assistance. The argument[21]In both the skeleton arguments and oral submissions there was extensive common ground. The date of claim.[22]First, it was submitted by both parties that the claimant made a claim for her pension in August 2002. It was submitted that the tribunal erred in law in considering its jurisdiction was limited to March 2006. The claim made in March 2006 expressly asked for the claimant's pension to commence from 17 July 2001 (page 4). The claimant's letter received on 21 August 2002, of which the tribunal was aware, and in respect of which it understood (correctly) no decision had been made was therefore within its jurisdiction. It was submitted by the Secretary of State that there was no decision prior to 11 April 2006 and there were no provisions by which the claim now accepted as made in August 2002 could be deemed to have been refused. It would follow that the decision of 11 April 2006 must be recognised as the decision on which the right to appeal arose. Consequently, the claimant's appeal covered the entire period from the claim made on 21 August 2002. In the Secretary of State's submission, this must mean the relevant period began on 27 May 2002. Under regulation 19 of the Social Security (Claims & Payments) Regulations 1987 as in force at the relevant time, the period of entitlement could be backdated by three months from the date of claim, 21 August 2002, to the first day of entitlement in the next benefit week after the claim was made, 27 May 2002 (Regulation 16). Mr Scudden was prepared to accept that date, whilst still favouring the claimant's 60 th birthday as the preferred starting date for her pension.[23]Further, in their submission, S.27 of the Social Security Act 1998 does not come into play because the decision of 11 April 2006 in respect of the claimant was given before the "relevant determination" in Richards was made (27 November 2006, the Commissioner's decision in CP/428/2004). The power, or otherwise, to impose conditions in respect of the pre-GRA period and whether any such powers were limited to claims for state pension benefits.[24]The parties diverged however, on whether or not it was permissible to impose conditions for recognition of a gender change prior before 4 April 2005. It was submitted by Mr Lask for the Secretary of State, (who by agreement opened the argument before me), that it was both permissible and necessary to impose conditions for the recognition of a gender reassignment prior to 4 April 2005. In Richards , the ECJ had specifically held in paragraph 21 that it was for member states to impose conditions, and in that case the period under consideration was one where that claimant was simply unable to have a claim for her pension recognised at all because there was no mechanism to do so, (see paragraph 28 of Richards ). It was not a case of scrutinising the conditions imposed by the United Kingdom, but simply that none existed. The Court had held that there was no need for temporal limitation, so that in principle the claimant's claim could extend to a period prior to its own judgment and prior to the date that the GRA came into force. Having recognised the member state's entitlement to impose conditions and ruled out temporal limitation, the Court must be taken to have accepted the United Kingdom's entitlement to impose conditions to apply to the period prior to the GRA.[25]In Goodwin , paragraph 103, the ECtHR accepted that there was a right to impose conditions. In paragraph 38 of CP/2682/2007, when commenting on Richards , the Tribunal of Commissioners had held that it was possible to look at the nature of a condition imposed and to scrutinise whether particular conditions fell foul of EC law, but there was no blanket restriction on imposing conditions. Further, a person would not achieve recognition of a change of gender without complying with criteria; it was neither practical nor appropriate simply to accept mere assertions. If there were no conditions, this would give rise to potentially unjustifiable unfairness between claims in respect of the pre- and post- GRA periods, with persons subject to conditions in the latter period being unfairly treated.[26]Although it had been submitted in the skeleton argument on behalf of the claimant that it was impermissible to impose conditions for the pre-GRA period, this submission appeared to be directed to the particular condition that the claimant should have ended her marriage. The Secretary of State's submission was that this situation did not arise, because the Secretary of State was not proposing to impose such a condition in this case. In Richard s no conditions had been imposed. It was accepted by all parties that Ms Richards had met all relevant diagnostic conditions. It was not the conditions which were in dispute, rather that there were no conditions to be applied.[27]In Mr Lask's submission it was for the Secretary of State to determine and apply such conditions. Sensitive and difficult issues of policy required the Secretary of State to consider a series of interlocking factors such as the claimant's rights and circumstances and those of others in a similar position. Also, it was for him to consider how to administer the application of such conditions, eg evidential conditions, and also the consequences of such recognition for other legislative purposes, such as the impact on the spouse's pension and the lawfulness of the marriage. It would be wrong for the Upper Tribunal to pre-empt the Secretary of State on these matters. He submitted; that having determined the conditions, it would then be for the Secretary of State to apply them in individual cases. Where the Secretary of State applied such conditions then the claimant would have a full right of appeal, including on the facts. He submitted that it would not be necessary for me to make my own "outcome decision", but the appropriate course in this appeal would be for me to remit the case to the Secretary of State so that he might determine the appropriate conditions and apply them to this claimant.[28]Mr Lask also confirmed that, as indicated in his skeleton argument, the Secretary of State is presently considering what conditions may be appropriate for persons in the claimant's position. Whilst no final decision had yet been taken, he could clarify that the Secretary of State's current thinking was to apply as closely as possible to the pre-GRA period the conditions set out in the GRA section 2(1). He had not yet determined the type of evidence which would be acceptable where a claim affecting the pre-GRA period is made and whether it would be entirely as set out in section 3 of the GRA or would be less demanding.[29]However, the Secretary of State was not intending to impose conditions that a person must have ended an existing marriage during that period. To my suggestion that arguments such as were raised in Parry would need to be addressed, Mr Lask responded that it was not appropriate to raise these points in respect of the pre-GRA period. He accepted that there may well be issues raised by persons who were subject to the post-GRA requirements, but insofar as any question of discrimination might arise, in his submission any difference in treatment found to exist would be justified.[30]As to whether any conditions were limited to claims for state retirement pension, Mr Lask submitted that the Secretary of State of the Department for Work and Pensions could only speak for the benefits of which he has responsibility and he would accept that recognition of an individual in the reassigned gender would apply for all social security benefits in principle, because of EC law. He accepted that the claimant and any other individual in her position would be of her reassigned gender for these purposes, but not for other purposes. The decision was unlikely to have far reaching effects because now that the GRA is in force, the inconsistencies should gradually fade away, but a different status of persons in the claimant's position should be recognised for social security benefits, to enable compliance with EC law.[31]Replying on behalf of the claimant, Mr Scudden submitted that as a point of principle, legal certainty should mean that it is not possible for any conditions to be imposed regarding the pre-GRA period because the United Kingdom government had not chosen to impose any conditions. His primary concern with the implementation of conditions in the pre-GRA period was the requirement for the claimant to bring her marriage to an end. In CP/428/2004 the Commissioner had recognised Ms Richards as entitled to benefit under the Directive for social security purposes, without having obligations retrospectively imposed upon her, on the same terms as a woman whose gender was not the result of gender reassignment. Further, the retrospective application of conditions would be contrary to Articles 8, 12 and 14 of the ECHR and to the fundamental principles of equality and legal certainty under EC law.[32]Furthermore, in assessing whether there was a measure of legitimate expectation, and applying the principle of legal certainty, the ECJ had placed great reliance on the criterion of forseeability. If it is reasonably forseeable that a forthcoming measure is likely to have retrospective application, those affected may not be able to claim breach of a legitimate expectation. To be reasonably forseeable, advance warning must be given that is express, sufficiently specific and given in good time. In the claimant's submission, at 21 August 2002, the accepted date of her claim, those criteria were not met. From the date of the judgment in Goodwin, approximately a month earlier in July 2002, the claimant had a legitimate expectation that her enjoyment of any rights within the scope of EC law would be on the same terms as a woman whose gender was not the result of gender reassignment. It would be contrary to the principles of legal certainty and equality to apply retrospectively to her case conditions for the enjoyment of her pension rights which were not even in contemplation at the time she became entitled and made her application for a pension.[33]Until the GRA came into force on 4 April 2005, there was no specific mechanism in place in the United Kingdom to recognise the new gender of transsexuals who had undergone gender reassignment. It was accepted that the government should enjoy a margin of discretion in deciding the obligations it could impose for the recognition of a person's new gender (so long as those conditions were, themselves, compliant with the non-discrimination requirement in the Directive), but in choosing not to pass any legislation for the period in question, by implication the government also chose not to impose such conditions on the recognition of a person's reassigned gender in that period. Ensuing uncertainty had resulted in a series of appeals by affected individuals to various United Kingdom and European tribunals and courts and some clarity had slowly evolved on a case by case basis to the position now recognised by the Secretary of State in his further submission to the Commissioner, as set out in paragraphs 17 and 18 above. It would be contrary to Article 8 of the ECHR and, as a consequence, to EC law, to apply retrospectively a condition that an existing marriage should end before a transsexual person could be said to have access to the equal rights treatment in Directive 79/7.[34]In Mr Scudden's submission the ECtHR jurisprudence had been imported into EC law in relation to the rights of transsexuals. National courts and tribunals are thus obliged to interpret national law matters within the scope of EC law to the fullest extent possible in a manner compatible with EC law. Thus the failure by a member state to accord recognition to the transsexual in connection with a matter within the scope of EC law, the state pension, would give rise to a breach of that individual's fundamental rights under EC law by virtue of Articles 8, 12 and 14 of the Convention. Where a national court or tribunal finds a national measure within the scope of EC law has failed to meet the required standards under EC law and cannot be interpreted in a manner compatible with EC law, then the national court or tribunal should set aside the national legislation, he submitted. In support, the Commissioner's decision in CIB/2248/2006 was cited where the Commissioner held:
"42…Having failed to interpret the domestic legislation in a way that complies with the EC law, I am under a duty to supply it to the extent necessary to enforce the claimant's EC rights."
[35]Mr Scudden further submitted that the retrospective application to the claimant of a requirement to obtain a divorce, when no mechanism was in place to enable her to do so, and to obtain a civil partnership, in such a way as to deny recognition of her reassigned gender, thereby preventing her from securing her retirement pension on the same terms as a woman whose gender was not the result of gender reassignment, breached not only her rights under Articles 8, 12 and 14 of the Convention, but also her fundamental rights as a matter of EC law. The retroactive application of a condition for the enjoyment of a right within the scope of EC law cannot be considered as necessary or permissible if that condition infringes fundamental rights under EC law and the principle of proportionality. It would clearly be disproportionate, in his submission, to impose a condition that the claimant should divorce her spouse where there was no special procedure for annulling her marriage prior to the GRA, no possibility of a civil partnership at that stage and where, in any case, the claimant would have had no knowledge of the need to meet such conditions as a requirement of having her new gender recognised.[36]It followed, in Mr Scudden's submission, that the question of limitation of any such conditions to claims for retirement pension benefits did not arise. Overall, these submissions dealt with the first three points I raised in my Directions. Could the position be reconciled with the fact that in English law marriage can only exist between a man and a woman?[37]On the fourth point raised in my Directions, as to how the position could be reconciled with the fact that under English law marriage can only exist between a man and a woman, it was acknowledged by both parties that in Goodwin and Parry the ECtHR recognised that contracting states retain a margin of discretion. The claimant also recognised that the Upper Tribunal might be concerned that in accepting her claim in this appeal, by recognising her change of gender without the requirement for a divorce, it might, in effect, also be affording some measure of recognition for a same sex marriage.[38]However, it was submitted by both parties that recognition of the claimant's change of gender, without a gender recognition certificate and therefore without the requirement that she be divorced, does not involve a universal recognition of her status as a woman, but could be confined to specific purposes. For example, the claimant is already recognised as a woman by the passport office, for driving licence purposes, receives hospital treatment as a woman, is recognised by her professional body as a woman and yet for the purpose of marriage is still considered, by law, to be a man. The grounds of her claim would not in fact involve recognition of her as a woman at all. It would simply recognise that she is entitled to enjoy rights within the scope of EC law in a manner identical to a woman whose gender is not the result of gender reassignment. Notwithstanding the comment obiter in paragraph 42 of CP/2862/2007 that the Directive "does not in our view require the creation of the fresh inconsistencies and legal uncertainties that could result from the same individual having to be treated simultaneously for pension purposes as a single woman and also as still legally married as a man to another", it was submitted for the claimant that that is exactly what EC law and the Directive require the Upper Tribunal to do in its interpretation of the relevant provisions of United Kingdom law. This should be achieved by the recognition of the claimant's entitlement to state pension without requiring a divorce, so that her marriage would not be a void same sex marriage, in the same way that recognition of that entitlement were she to get divorced would not allow her to marry a man until she obtained her gender recognition certificate. Thus, it was submitted, section 11(c) of the Matrimonial Causes Act 1973 does not in fact prevent the application of EC law, the Convention and the Human Rights Act 1998, to ensure that she be afforded her pension entitlement on the same basis as a woman whose gender was not the result of gender reassignment, for the purpose of pension entitlement only, without any consequences in respect of her marriage. Any problem envisaged simply did not arise.[39]It was accepted by the Secretary of State that in CP/3485/2003 Mr Commissioner Turnbull had applied by analogy the conditions required under the GRA to a transsexual who completed her gender change prior to the implementation of the GRA, and that that decision was therefore inconsistent with his submission (although this decision was expressly approved and followed in CP/1425/2007, paragraph 49). The effect on the period after 4 April 2005 when the GRA came into force[40]It was Mr Scudden's written submission that under section 17(1) of the Social Security Act 1998 a decision in respect of a pension, once taken, is final, and this would provide a complete answer to any suggestion that the position might be different once the GRA came into force. There was again some divergence here between the Secretary of State and the claimant. Section 17 provides "(1) Subject to the provisions of this Chapter, any decision made in accordance with the foregoing provisions of this Chapter shall be final; and subject to the provisions of any regulations under section 11 above, any decision made in accordance with those regulations shall be final. (2) If and to the extent that regulations so provide, any finding of fact or other determination embodied in or necessary to such a decision, or on which such a decision is based, shall be conclusive for the purposes of— (a) further such decisions; (b)……; and (c) ……" In the Secretary of State's submission, section 17(1) could not be a complete answer to the point, because section 17 is expressed in terms of "this Chapter" which includes sections 9 and 10 of the Act, by which the Secretary of State may revise or supersede a decision. However, the situation would not arise in his view, as the Secretary of State's proposals would not involve any change in the treatment of the claimant's position after the GRA came into force. The effect on the pension rights of the claimant's spouse[41]Mr Lask confirmed his written submission that by virtue of section 48A of the Social Security Contributions and Benefits Act 1992, the claimant's spouse would, in principle, have become entitled to a category B pension once both the following factors were satisfied:(a) the claimant's spouse attained 60 (in this case 19 December 2002); and(b) the claimant attained pensionable age and became entitled to a category A pension (subject to the claimant having satisfied the contributions conditions in Schedule 3, Part 1, paragraph 5 of the Social Security Contributions and Benefits Act 1992). Therefore, if the claimant were to be regarded as having attained pensionable age on her 60 th birthday as a woman, and as having become entitled to her pension on a date between 27 May 2002 and 17 July 2006 (ie between the commencement of her period of potential entitlement and her 65 th birthday) her spouse could become entitled to a category B pension after her own 60 th birthday on a date during that period, and thus earlier than if the claimant were regarded as having attained pensionable age only on her 65 th birthday.[42]Mr Lask did accept that, in correcting potential discrimination, there would be bound to be anomalies in other areas, but in his submission these were justified by the need to put the claimant in the position in which she should be. This was another area therefore where the Secretary of State did not agree with the submission for the claimant - that the claimant's spouse would lose her category B pension rights. Mr Lask submitted that as on the basis of his submission set out in paragraph 37 above the claimant's marriage would remain valid, her spouse would also be married when she and the claimant attained their respective pensionable ages, and her spouse should accordingly be entitled to her pension on attaining 60.[43]In his skeleton argument, Mr Scudden accepted that the logic of the claimant's arguments meant that, if she were to be recognised as a woman for the purposes of pension entitlement only, she would remain legally married to her spouse as a man. However, he also accepted that it would be incongruous and unjust for the claimant to receive a single woman's pension from the date of her claim whilst at the same time her spouse was receiving a married woman's pension, based on the claimant's own contributions. Therefore to be consistent, it would be necessary to make a corresponding adjustment to the payments received by the claimant's spouse after 27 May 2002, and then to remove from her pension such element of entitlement to benefit as was based on her marriage to the claimant. This does not coincide with the Secretary of State's rather more generous view, nor deal with the practical problems identified by the Secretary of State in respect of national insurance contributions; in the oral hearing, this aspect was not pressed by Mr Scudden. Suggested remedies[44]The Secretary of State submitted that the appeal should be remitted to him to remake the decision. There was some difference between the claimant and the Secretary of State on other remedies. For instance, the submission on behalf of the claimant included a request for items of relief which are not available in this jurisdiction, nor would I be entitled to set aside the decision of 18 January 2008, which was not before me. On balance Mr Scudden expressed a preference that I should make my own decision, which, in the event, I have felt able to do. Conclusions[45]The claimant's letter of August 2002 has now been accepted by the Secretary of State as a claim for her pension, but no decision had been made on it at the time of either the decision appealed against or the tribunal hearing. In my judgment the claim form submitted in March 2006 completed the pension claim made by letter in 2002, and given that the claimant expressly stated she was applying for her pension from 17 July 2001 (page 4) the period properly before the tribunal, and thus before me, was that full period from July 2001 to July 2006. The tribunal was aware that the claim had been made in 2002, but did not consider the period expressly under consideration in the claim form. This may have been in part because the decision appealed against referred only to the date from which the decision maker had decided a category A pension was payable to the claimant. I have no jurisdiction to consider the decision of 18 January 2008. The Secretary of State did not indicate in the hearing how he proposed to deal with that decision, but it was perhaps implicit that he might now treat it as having been made without jurisdiction.[46]As the Tribunal of Commissioners said in CP/2862/2007:
"29. The direct effect of Article 4(1) of the Directive is not in doubt. To the extent that its requirements are not reflected in the national law, any individual within its personal scope (which includes this claimant) may rely on it in a claim against the Secretary of State so as to establish entitlement to equal benefit with the appropriate comparator, overriding any conditions in the national legislation which otherwise restrict the claimant to less: paragraph 19 above."
[47]Following the decisions in CP/1425/2007 and CP2862/2007, subject to confirmation that she fulfilled the necessary criteria to be treated as a woman and the other conditions for benefit, the claimant would accordingly have been entitled to her state pension from 27 May 2002 as submitted by the Secretary of State, the decision in C-410/92 Johnson v CAO (No2), ... R(S) 1/95)) precluding her from receiving it from any earlier date. However, whether or not she satisfied the other criteria to be treated as a woman, (as to which she has submitted evidence, which has not, as I understand it been considered by the Secretary of State) at that date she was, and remains, married.[48]At the time of her claim for a pension in August 2002 she could not have known how the government would respond to the Goodwin judgment. Even had she known, there was no mechanism in force at that stage for her, having concluded her marriage by divorce, (which was open to her only in limited circumstances such as five years' separation if her wife did not wish to divorce her), to enter into a civil partnership which was not introduced until the Civil Partnership Act 2004 came into force on 5 December 2005.[49]Nonetheless, the whole tenor of Goodwin was that it was expected that a transsexual would be entitled, and wish, to enter into a new relationship with a person of the opposite gender to the transsexual's new gender. In Goodwin the Court stated:
"103. It may be noted from the materials submitted by Liberty that though there is widespread acceptance of the marriage of transsexuals, fewer countries permit the marriage of transsexuals in their assigned gender than recognise the change of gender itself. The Court is not persuaded however that this supports an argument for leaving the matter entirely to the Contracting States as being within their margin of appreciation. This would be tantamount to finding that the range of options open to a Contracting State included an effective bar on any exercise of the right to marry. The margin of appreciation cannot extend so far. While it is for the Contracting State to determine inter alia the conditions under which a person claiming legal recognition as a transsexual establishes that gender re-assignment has been properly effected or under which past marriages cease to be valid and the formalities applicable to future marriages (including, for example, the information to be furnished to intended spouses), the Court finds no justification for barring the transsexual from enjoying the right to marry under any circumstances"
. Whilst not explicit, there was nothing in that decision to encourage the claimant to believe that it would be open to any transsexual to maintain an existing marriage in his/her birth gender, but still to be treated as having fully completed a change of gender.[50]On 13 December 2002 the government announced that it would bring forward the legislation which became the GRA, but details were not given at that stage. Bellinger (where the House of Lords held that section 11(c) of the Matrimonial Causes Act 1973 was not incompatible with Articles 8 and 12 of the Convention and that male and female as referred to in section 11(c) were to be given their ordinary meaning and referred to a person's biological gender at birth) was decided early in 2003. A draft Gender Recognition Bill was published on 11 July 2003, which did set out the detailed terms of the proposed legislation. As I understand it, the claimant has taken no steps towards the dissolution of her marriage, which is of course her right, and for reasons which are to be respected. However, the consequence of not doing so, once the GRA came into force on 4 April 2005, is that she has not been been in a position to apply for a full gender recognition certificate with the legal consequences which flow from it. Even had she done so, of course, there could have been no retrospective recognition of her change of gender to entitle her to receive her pension from 27 May 2002 under the provisions of the GRA.[51]The Secretary of State considers that it is for him to impose conditions, which he has indicated he proposes to deal with by bringing forward further legislation to assist those persons, a decreasing number, who find themselves in difficulties about their entitlement to benefits as result of a gender reassignment. Although of course there would be nothing inappropriate in the Secretary of State imposing whatever conditions he wished in legislation, however, in relation to this appeal, he did not take into account that in paragraph 49 of CP/1425/2007 the Tribunal of Commissioners said: "For this purpose we confirm that for the reasons given in case CP 2862/07 any question whether a person has become entitled to the benefit of equal treatment under the Directive in their acquired gender is to be determined by applying the same tests as in the Gender Recognition Act, even as regards periods before it came into force. We approve and follow the decision of the Commissioner in case CP 3485/03 to the same effect".(my emphasis) Whilst wishing to emphasise the Secretary of State's right to impose conditions, Mr Lask acknowledged that his proposal not to impose a condition that the claimant should have ended her existing marriage to be entitled to a pension does not follow CP/3485/2003. Further, it does not follow CP/2862/2007 and CP/1425/2007. Nor can the tribunal or the Upper Tribunal take account of policy proposals the Secretary of State may be considering. Both the First-tier Tribunal and the Upper Tribunal, as they now are, must consider the law as it is.[52]In CP/2862/2007 itself the Tribunal of Commissioners held:
"37. ……The meanings of "man" and "woman" in the legislation are well established and we do not consider it possible to distort them in either primary or subordinate provisions so as to treat a person as having changed his or her gender in United Kingdom law otherwise than by the mechanism provided by its own primary legislation in the Gender Recognition Act: cf. Bellinger already cited. It was not argued that the mechanism or conditions introduced by that Act were themselves in any way contrary to the Convention, and in Grant v UK (2007) 44 EHRR 1 paragraph 41 the ECHR accepted they comply with it. 38. As to the Directive it is true that both the judgment of the ECJ and the opinion of the Advocate-General in Richards proceeded on the basis that the claimant in that case, who was described as a "post-operative transsexual", was thereby entitled to the benefit of the Directive as a woman even in the absence of any mechanism in the national law to recognise that she had made the change; and in paragraph 57 the Advocate-General commented that the question of when a transsexual became entitled to equal treatment under the Directive did not have to be resolved in the present case " which concerns a post-operative transsexual person whose entitlement is therefore clear " with no record of that having been disputed. The judgment of the Court (which is of course concerned with giving a preliminary ruling on the point of principle, not deciding the facts of an individual case) is however emphatic that it is for the national law to determine the conditions under which legal recognition is given to a change of gender of a person: paragraph 21 already cited, reiterated in the terms of the ruling itself quoted in paragraph 22 above. As there also noted the terms of the question referred to the ECJ for its ruling invited, if not required, the assumption that if held entitled to maintain a claim for equal treatment under the Directive, the claimant was bound to qualify for pension from the age of 60: hence the lack of further discussion or decision on the point."
I see no reason to depart from those decisions by a Tribunal of Commissioners, with which I agree (as might of course be expected, my having been a member of that tribunal) and also following the guidelines of R(I) 12/75, which have recently been confirmed in paragraphs 36 and 37 of M [2009]UKUT.4 (AAC) as to the authority of a decision by a Three-judge Panel. As held in paragraph 49 of CP/1425/2007, the conditions set out in the GRA apply equally to the period before it came into force.[53]Much was made by Mr Scudden on behalf of the claimant of the need for certainty, so that the claimant might be aware of what would be required to enable her to satisfy the conditions for an award of pension at the age of 60, in her reassigned gender, and that it is not proper to impose conditions at this stage for the period prior to 4 April 2005. The emphasis on the need for certainty is however a two-edged sword. The claimant seeks to establish her right to be treated as a woman, but not in all respects. She wishes to have the right to elect not to end her marriage, but wishes to receive the benefit of a pension at the age of 60, as a woman. Here, again, the judgment in Goodwin is instructive: 91. The Court does not underestimate the difficulties which….any major change in the system will inevitably have, not only in the field of birth registration, but also in the areas of….. social security and insurance. However, ….these problems are far from insuperable……As Lord Justice Thorpe observed in the Bellinger case, any "spectral difficulties", particularly in the field of family law, are both manageable and acceptable if confined to the case of fully achieved and post-operative transsexuals. Nor is the Court convinced by arguments that allowing the applicant to fall under the rules applicable to women, which would also change the date of eligibility for her state pension, would cause any injustice to others in the national insurance and state pension systems as alleged by the Government. No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost." (my emphasis) The claimant remained in her marriage as a man, as is submitted by both parties before me. This must be in open conflict with her submission that she should be treated as a fully achieved transsexual, understandable though her wish is for that to be the case.[54]It has also been submitted on behalf of the claimant that she has been recognised in other areas, such as by the passport office and her professional body as having acquired a new gender. Those recognitions do not of themselves have any further impact on any other member or body or of society as a whole, nor is her gender relevant. It is otherwise in connection with a marriage which does inevitably have an effect on other parties and society, and in the award of benefits which are based upon a claimant's gender. There can be no certainty if a transsexual person were to be free to select some of the criteria laid down by the GRA and reject others, perceived as less helpful to a particular situation. In Chief Constable of West Yorkshire Police v A (No 2) (HL(E)) [2004] UKHL 21 [2005] 1AC 51 , Baroness Hale said at paragraph 51 "Also true, the fact that marriage law traditionally distinguished between husband and wife cannot be a conclusive argument against the marriage of two people who for all purposes are of opposite sexes. But marriage is still a status good against the world in which clarity and consistency are vital ." (my emphasis).[55]In Parry , an application was made to the ECtHR by two parties in precisely the same position as the claimant and her wife but after the implementation of the GRA. There the applicants also complained of breaches of Articles 8, 12, Article 1 of Protocol 1, Article 14 and additionally under Article 9 (freedom of thought, conscience and religion). The court held that, in the light of the GRA and the Civil Partnership Act, the effects of the system were not shown to be disproportionate in that a fair balance had been struck in the circumstances as far as Article 8 was concerned. So far as Article 12 was concerned, the court concluded that the matter fell within the appreciation of a contracting state as to how to regulate the effects of a change of gender in the context of marriage but again the response was proportional. The court observed:
"The applicants have referred forcefully to the historical and social value of the institution of marriage which give it such emotional importance to them; it is however that value as currently recognised in national law which excludes them."
[56]Whilst I recognise that no breach of Article 9 has been submitted in this appeal, I note that the court in Parry did not consider Article 9 to be engaged as a result of the manner in which the state chose to grant its own formal legal recognition to relationships. In regard to Article 1 of Protocol 1, the Court concluded that:
"….insofar as there would be financial repercussions following from any nullity or partnership procedures, any interference with the right to peaceful enjoyment of possessions would be lawful in disclosing a fair balance between the conflicting interests of the individual and society as a whole. The Court doubts that the applicants can, for the purposes of Article 14 of the Convention, claim that they are in a comparable position to others who are unaffected by the new legislation but to the extent that any possible issue of difference of treatment arises, this is justified on the same grounds as identified above in the context of Articles 8 and 12 of the Convention. Lastly as regards Article 13 of the Convention, it has found no arguable claim arising of a breach of one of the other rights of the Convention and consequently Article 13 is not engaged ( Boyle and Rice v United Kingdom , Judgment of 27 April 1988, Series A No. 131, Para 52)"
The position for the post-GRA period, taken separately, is clear on the consequences of the continuing relationship between the claimant and her wife.[57]Even were it not clear on this aspect, both parties have somewhat brushed aside the consequences of the claimant being treated as entitled to her pension at 60 despite her continuing marriage, in relation to the possibility of discrimination, not so much against other transsexuals, although that could be possible, as against other persons. Both parties have accepted that there would be anomalies but have taken the view that these would be proportionate to the need to put the claimant in the position in which, it is submitted, she should be.[58]This position ignores, in respect of both the pre- and post-GRA periods, that on the Secretary of State's submission, a woman married to a man who remains in his birth gender will not be entitled to a category B pension on reaching 60 until her husband reaches 65, whereas the claimant's wife on reaching 60 would be entitled to a category B pension, because the claimant has already reached 60. This is not merely an anomaly, there would be a potential discrimination against a large number of women married to men who retain their birth gender.[59]There could also be potential discrimination in the post-GRA period against those transsexuals who have had to comply with the requirements of the GRA. It was accepted in Parry that the GRA legislation was just and proportionate. It would be no answer that a pension once awarded cannot be withdrawn, as submitted by the Secretary of State. Any award is still subject to the right of the Secretary of State to supersede or revise under sections 9 and 10 of the Social Security Act 1998, and for example, a claimant can be disqualified from receiving any benefit for any period in custody. In principle, there is no reason why an award could not be brought to an end on a supersession when the GRA came into force: the Act, with specific conditions, would be a change of circumstances (cf CIB/2248/2006 where the operation of Schedule 5 of the GRA brought to an end the award of state pension to a woman on her recognition as a man under the GRA).[60]The limited recognition proposed, to treat the claimant as a woman for social security purposes only, is the wrong way round. Where gender is relevant, social security benefits result from a person being either a man or a woman. It is inevitable that treatment of the claimant as a woman for pension purposes only would have further far reaching effects. The submissions of the parties as set out in paragraph 38 above work against them. As was said in CP/2862/2007:` "40. The process of changing from one gender to the other is not of course instant: as Baroness Hale said in A v Chief Constable of West Yorkshire [2004] UKHL 21 it is a transition. Questions of demarcation and definition on what stage it has reached in an individual case are bound to be sensitive and difficult, but nothing we were shown has persuaded us that the conditions now laid down in the Gender Recognition Act for when the process is to be recognised in law as complete are themselves inconsistent with either the Human Rights Convention (this was not argued, and Grant v UK cited above and Parry v UK, Application 429175/05, ECHR 28 November 2006 are authority that they are not) or the requirements of the Directive."[61]I am aware that it has been suggested that Ms Richards was still married to her wife when she was awarded her state pension. I have been able to check the file before the Commissioner in that case. Although it appears Ms Richards indicated in her original claim form that she remained married, that aspect was not pursued in any way. In its statement of reasons, the tribunal expressly commented on the problems which would arise in the pensions area if a transsexual woman were still married to her wife. The ECJ's ruling determined only matters of principle. It appears that the Commissioner was not apprised of Ms Richards' marital status. That decision is therefore distinguishable from this appeal, where the continuation of the claimant's marriage has been a major aspect for consideration.[62]It is of course open to the Secretary of State to consider any ex gratia payment he believes suitable in the circumstances.[63]The claimant, and others in the same position for she is not alone, cannot submit there has been a breach of 79/7 because she has not established that she should be treated as a woman for the purposes of that Directive.[64]It follows that, although there was an error of law by the tribunal, this does not assist the claimant ultimately and, disappointing though this must inevitably be to the claimant, my decision must be to the like effect as set out above. (Signed on the original) E A Jupp Judge of the UpperTribunal 12 March 2009

Cited in 1 later judgment