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Neutral Citation Number:
Reported Number:	R(P)2/09
File Number:	CP 1425 2007
Appellant:
Respondent:
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	13/03/2008
Date Added:	28/04/2008
Main Category:	European Union law
Main Subcategory:	discrimination by gender
Secondary Category:	Retirement pensions
Secondary Subcategory:	deferred retirement
Notes:	Discrimination on ground of sex – pension rights of male-to-female transsexuals under Council Directive 79/7 – claimant in receipt of pension as man at date of claim – entitlement on basis of “deferment” The claimant was a male-to-female transsexual who lived as a man until shortly before attaining the female pension age of 60 in July 1994. She claimed and was awarded retirement pension in 1999 from the male pension age of 65. The Gender Recognition Act 2004 came into effect in April 2005 and the claimant obtained a full gender recognition certificate in May 2005. Her retirement pension was recalculated from June 2005 with the effect that her earnings-related additional pension as a woman was slightly reduced. In May 2006 the claimant applied for her pension to be awarded to her as a woman back to her 60th birthday, asserting entitlement to equal treatment under Article 4(1) of Council Directive 79/7 with a person of the same age born a female, based on the ruling by the European Court of Justice in Case C-423/04 Richards v Secretary of State [2006] ECR I-3585 (now reported as R(P) 1/07) issued on 27 April 2006. A decision-maker refused the application on the basis that that she had not claimed at the age of 60 and the 12-month time limit for claims applied. The claimant appealed and a tribunal upheld that decision, also holding that she could have no claim under the Directive. The claimant appealed to the Commissioners. Held, allowing the appeal in part, that: 1. the claimant was entitled to assert a claim under the direct effect of Article 4(1) on the basis of equal treatment with any other person of her acquired gender, and the tribunal had erred in law in holding the Gender Recognition Act removed any scope for such a claim (R(P) 1/09 paragraphs 19, 29 to 31 and the cases there cited) (paragraphs 31 and 32); 2. any such claim or application for earlier or extra benefit by virtue of the Directive was however subject to the same general procedural requirements, time limits and restrictions as any corresponding applications under domestic law (R(P) 1/09 paragraphs 21, 33 to 35 and the cases there cited) (paragraphs 34 and 35); 3. applying those requirements, the claimant’s application of May 2006 could only be considered as one for the alteration of the retirement pension she had already duly claimed and been awarded in 1999, not as a fresh or separate claim. The only relevant power to alter that award was to supersede it under section 10 of the Social Security Act 1998 with effect from the date of her application. There was no ground to revise it back to its original date, as any error in failing to accord equal treatment as required by the Directive was only shown to be so by Richards, and so was outside the definition of “official error” permitting such revision in regulation 1(3) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (paragraphs 38 to 44); 4. the decision to reduce the claimant’s pension in June 2005 was open to question and required to be reconsidered, for possible separate revision of the claimant’s award back to that date if it had failed to give effect to paragraph 7(4) of Schedule 5 to the Gender Recognition Act as regards her earnings-related benefit (paragraphs 45 and 46); 5. in either case the claimant was entitled to have included in her pension, from the effective date of the superseding or revised decision, a percentage increase for deferment of her pension under section 55 of the Contributions and Benefits Act, measured from the date when she could first have claimed it under the Directive until its actual starting date in 1999: in this respect the special provisions in Schedule 5 to the Gender Recognition Act fell short of what was required for equal treatment (paragraphs 47 to 48); 6. for that purpose the date when the claimant had first become entitled to the benefit of equal treatment in her acquired gender was to be determined by applying the same tests as in the Gender Recognition Act, even as regards periods before it came into force (R(P) 1/09 paragraphs 38 to 41; CP/3485/2003 approved and followed) (paragraph 49).
Decision(s) to Download:	R(P) 2-09 bv.doc