Secretary of State for Work and Pensions v HY and LW (RP)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Rowland |
| Neutral Citation | [2017] UKUT 303 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | European Union law,Retirement pensions,European Union law - discrimination by gender,Retirement pensions - other,Rowland,M |
| Date | 20 July 2017 |
| Published date | 03 August 2017 |
Secretary of State for Work and Pensions v HY (RP) [2017] UKUT 303 (AAC)
CP/2456/2015 and CP/799/2016 1
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER Case No. CP/2456/2015
CP/799/2016
Before Upper Tribunal Judge Rowland
The Secretary of State was represented by Mr Ben Lask of counsel, instructed by
the Government Legal Department
The claimants were represented by Mr Brendan McGurk of counsel and Dr
Christopher Strothers, solicitor, of Arnold & Porter Kaye Scholer LLP
Order: Nothing shall be published that is likely to lead members of the
public to identify the claimants in these cases.
Decision: The Secretary of State’s appeals are allowed.
In the case on file CP/2456/2015, the decision of the First-tier
Tribunal dated 12 May 2015 is set aside and there is substituted a
decision that the claimant is not entitled to a retirement pension
from 6 July 2014 to 6 February 2015.
In the case on file CP/799/2016, the decision of the First-tier
Tribunal dated 22 December 2015 is set aside and there is
substituted a decision that the claimant is entitled to a Category A
retirement pension and graduated retirement benefit amounting in
total to £93.11 per week from 20 May 2013 but is not entitled to a
retirement pension or graduated retirement benefit before that.
REASONS FOR DECISION
1. These appeals are brought by the Secretary of State against decisions of the
First-tier Tribunal whereby, in each case, it allowed an appeal by the claimant from a
decision of the Secretary of State relating to an award of retirement pension. The
facts and issues in each case are slightly different, but at the heart of both cases is
the question whether, in respect of a period before a gender recognition certificate
under the Gender Recognition Act 2004 (“the 2004 Act”) has been issued, a male-to-
female transgender person who has undergone gender reassignment surgery is
entitled under European Union law to a retirement person on the basis that she is a
woman.
Secretary of State for Work and Pensions v HY (RP) [2017] UKUT 303 (AAC)
CP/2456/2015 and CP/799/2016 2
The facts and procedural history of the first case
2. The first claimant, having been registered as male at birth, underwent gender
reassignment surgery in 1986. On 10 June 2014, she claimed a retirement pension
from 6 July 2014 when, by virtue of Schedule 4 to the Pensions Act 1995 as
amended, a women of her age attained pensionable age. The claim was refused by
the Secretary of State on 17 June 2014 on the ground that the claimant had not
obtained a gender recognition certificate and so her claim fell to be decided on the
basis that she was still a man, with the result that the claim was premature as it had
been made more than four months before she would reach pensionable age for a
man. She applied for revision of the decision on the ground that since 1982 she had
been recorded as a woman by HMRC in connection with the collection of tax and
National Insurance contributions and that she was recorded as a woman in her
passport. The inference to be drawn is that she had been living as a woman since
the 1980s but that, if she had been aware at all of the possibility of obtaining a
gender recognition certificate when the 2004 Act came into force, she did not
understand it to be necessary for her to do so. The application for revision was
rejected on 18 November 2014 and the claimant appealed to the First-tier Tribunal.
She had by then applied for a gender recognition certificate, which was issued on 6
February 2015, and she made a new claim for a retirement pension, which was
awarded from 7 February 2015. I do not have details of the award, but presumably it
was an award of Category A retirement pension and possibly a small amount of
graduated retirement benefit.
3. The claimant’s appeal was therefore concerned only with entitlement from 6
July 2014 to 6 February 2015. For reasons that I will summarise below, the First-tier
Tribunal allowed her appeal and held that she was entitled to a retirement pension
from 6 July 2014. It subsequently gave the Secretary of State permission to appeal,
which he duly did. On 7 December 2015, I stayed the proceedings to await the
decision of the Supreme Court on an appeal against the Court of Appeal’s decision
in MB (see below). However, following the Supreme Court’s decision to refer
questions to the Court of Justice of the European Union, I considered further
submissions from the parties and, on 3 November 2016, I refused to make a
reference to the Court in the present case but I lifted the stay, broadly on the
grounds that it had become apparent that MB was distinguishable from the present
case and was not sufficiently likely to be determinative of this case to justify a stay
and that there was a sufficient body of case law and legislation to make a reference
to the Court of Justice unnecessary.
The facts and procedural history of the second case
4. The second claimant, having been registered as male at birth, started living
as a woman in about 1983 and underwent gender reassignment surgery in 1988. A
gender recognition certificate was issued to her on 3 February 2014, by which time
she was already aged 65. On 8 May 2014, she claimed a retirement pension from
17 May 2008, her 60th birthday and therefore the date on which a woman of her age
attained pensionable age. I do not know why she applied for a gender recognition
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