Secretary of State for Work and Pensions v HY & Anor (RP)

Where domestic law provides a lawful scheme for recognising an acquired gender, a claimant seeking a retirement pension at the pensionable age applicable to that gender must prove recognition for the relevant period. Richards does not require a post-operative transgender person to be treated as having the acquired gender without a gender recognition certificate where a recognition scheme was available before pensionable age.

The prospective operation of a certificate under the Gender Recognition Act 2004 did not, on the facts, infringe article 4(1) of Council Directive 79/7/EEC. A claimant could not obtain an enhanced pension for deferment during a period in which the conditions of entitlement, including pensionable age, were not met.

The Secretary of State appealed two First-tier Tribunal decisions concerning retirement-pension claims by male-to-female transgender claimants. Each had undergone gender reassignment surgery and lived as a woman for many years. Neither obtained a gender recognition certificate before the period for which she sought pension entitlement.

In the first case, the tribunal awarded a pension for the period before the certificate was issued. In the second, it refused pension before age 65 but awarded an enhancement for supposed deferment from age 60. The common issue was whether European Union equal-treatment law required either claimant to be treated as a woman for pension purposes before issue of a certificate under the Gender Recognition Act 2004.

1. The Secretary of State’s appeals were allowed. Both First-tier Tribunal decisions were set aside and the Secretary of State’s original decisions were reinstated.

2. Richards v Secretary of State for Work and Pensions (C-423/04) [2006] ICR 1181 concerned the absence of any domestic scheme for recognition of acquired gender. It did not determine the permissible conditions of a later statutory scheme. The claimants could have obtained gender recognition certificates before reaching the pensionable age for women. Their cases were therefore materially different from Richards and Timbrell v Secretary of State for Work and Pensions [2010] EWCA Civ 701.

3. Article 4(1) of Council Directive 79/7/EEC required no retrospective recognition merely because a claimant would have met the statutory conditions had an earlier application been made. Once a recognition scheme exists, it is permissible to require proof that the claimant was recognised in the acquired gender during the relevant period. The prospective character of certificates under the Gender Recognition Act 2004 promoted certainty, consistency and simplicity. In these cases it was objectively justifiable and did not amount to sex discrimination.

4. The second claimant had not reached pensionable age before age 65 and could not be treated as having deferred an entitlement which she did not then possess. The conditions of entitlement other than making a claim must be satisfied during the alleged period of deferment. Her pension was therefore payable only from 20 May 2013, without an increase for earlier deferment.

• Upper Tribunal (Administrative Appeals Chamber): allowed the Secretary of State’s appeals, set aside both First-tier Tribunal decisions, and substituted decisions reinstating the original determinations.

• First-tier Tribunal (Social Entitlement Chamber): on 12 May 2015 awarded HY a retirement pension from 6 July 2014; on 22 December 2015 held that LW was not entitled before age 65 but was entitled to an enhanced pension based on deferment from age 60.