Carpenter v Secretary of State for Justice

A request by a gender recognition panel for further evidence or information is a procedural step towards determining an application, not a rejection of it. A statutory appeal under section 8 of the Gender Recognition Act 2004 therefore arises only where the panel has actually rejected the application. Reasons given on the contemporary decision document remain the reasons for the decision, even if they are later explained or elaborated by a panel member. Any appeal time limit runs from receipt of the decision and its recorded reasons. The court declined to resolve whether the Family Procedure Rules 2010 or the Civil Procedure Rules governed the appeal, because either route made the attempted appeal substantially out of time.

Ms Helen Carpenter applied for a gender recognition certificate after being asked to obtain one before her state pension could be recognised in her acquired gender. On 25 August and 29 September 2011, the gender recognition panel directed her to provide further details of gender reassignment surgery. She supplied a surgeon’s report, and the panel granted the certificate on 21 November 2011.

She issued a statutory appeal under section 8 of the Gender Recognition Act 2004, arguing that the two directions decisions amounted to rejections. The Secretary of State contended that there had been no rejection and, alternatively, that the appeal was out of time. The central issues were whether the directions constituted a rejection and, if so, when the time limit began.

1. No statutory appeal. The panel’s directions requiring further information about surgery were analogous to directions made in judicial or quasi-judicial proceedings. They were steps towards determining the application and did not reject it. The panel ultimately granted the application on 21 November 2011. The statutory condition in section 8(1) of the Gender Recognition Act 2004 was therefore not satisfied.
2. Panel’s procedural powers. The statutory scheme contemplated that panels could determine applications privately, require further evidence under section 3(6)(c), and give reasons for doing so under section 3(8). The directions of 25 August and 29 September 2011 fell within that procedural scheme. Possible technicality, inadequacy or opacity in the panel’s reasoning did not convert the directions into a rejection.
3. Alternative limitation ground. If the directions had amounted to rejections, the appeal was still substantially out of time. Whether the applicable period was 21 days under rule 30.4(2)(b) of the Family Procedure Rules 2010, or 28 days under paragraph 17.3 of the Practice Direction to Part 52 of the Civil Procedure Rules, the period began when the decisions and their recorded reasons were received.
4. The later letter from the president of the panel, dated 24 April 2012, was not a later statement of reasons within paragraph 17.4(i) of the Practice Direction to Part 52. The contemporary documents contained the reasons, even if those reasons were later elaborated. The court expressly declined to decide which procedural rules applied, observing that any such conclusion would be obiter.
5. The attempted statutory appeals were finally concluded and, in any event, would have been dismissed as out of time.

First-instance decision determining attempted statutory appeals under section 8 of the Gender Recognition Act 2004. The court held that no valid statutory appeal had been brought and that, alternatively, the appeals were out of time.