ToC: DJM, PLH, EAJ                                                  Commissioner’s File:  CP 2862/07 (heard with CP 1425/07 & CSP 503/07)
	
	SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

Claim for:  	Retirement Pension
Appeal Tribunal: 	Watford 
Tribunal Case Ref:  	052/06/00796
Tribunal date: 	4 May 2007
Reasons issued:	30 May 2007

[ORAL HEARING]

Introduction
     1.     	Despite the ably presented arguments on behalf of the claimant we have concluded that there was no material error of law in the decision of the Watford appeal tribunal on 4 May 2007, and this appeal must therefore be dismissed. 
     2.     	This appeal arises out of a claim for a category A retirement pension accepted by the Secretary of State as made on 3 May 2006.  The questions are whether there was any entitlement to pension on that claim, and if so from what date and at what rate. 
     3.     	We held an oral hearing of the appeal, together with two others raising related issues.  Mr C Stothers of Milbank, Tweed, Hadley and McCloy LLP appeared for the claimant and Mr J Heath of the Solicitor’s Office, Department for Work and Pensions for the Secretary of State.  We record our thanks for the work put in on both sides. 
Factual history
     4.     	The claimant is a male to female transsexual, born male on 22 June 1942.  For most of her adult life she lived as a man, marrying and remaining married as a man until well after attaining the female pension age of 60 on 22 June 2002.  According to her  evidence to the tribunal (appeal bundle page 103), it was in June 2004 that the claimant started to live full-time in a female role.  On 16 November of that year the marriage was brought to an end by divorce, and on 1 December 2004 the claimant declared by deed poll that she was abandoning her previous forenames and changing to female ones (53).  
     5.     	Also on 1 December 2004, a consultant psychiatrist certified that the claimant was currently receiving treatment for transsexualism, was living exclusively in a female role and intended to do so permanently (54).  Just over a year after this, on 10 December 2005, the claimant had gender reassignment surgery (57).  
     6.     	In June 2006 the claimant sought to obtain a gender recognition certificate under the Gender Recognition Act 2004 (that Act having then been in force some 14 months, from 4 April 2005) on the ground of having by then lived as a woman for two years so her acquisition of female gender could be recognised as permanent.  This application was unsuccessful, as the Gender Recognition Panel was not satisfied the evidence in fact demonstrated her to have been living full time in the acquired gender before 1 December 2004 (68, 71).  A renewed application on 1 December 2006 succeeded, and a full gender recognition certificate was issued to the claimant on 21 December 2006 (68-69, 120).
Claim history
     7.     	On 10 January 2005 the claimant wrote to the National Insurance Contributions Office (at that date part of the Inland Revenue) enclosing copies of the name change deed and psychiatrist’s letter of 1 December 2004, saying that those documents “should be self explanatory” and asking the question “Do the changes affect when I can start to draw the State Pension?” (52-54).  
     8.     	On 14 and 25 January 2005 that office replied by two letters confirming that the altered details would be noted and result in the issue of a new national insurance number card.  It said that “At the present time” this would have no effect on the claimant’s entitlement to social security benefits, liability for national insurance contributions, or state pension age which was 22 June 2007, but explained how to obtain details about an application under the Gender Recognition Act, to produce such an effect (55-56).
     9.     	The claimant’s letter of 10 January 2005 was not expressed or pursued by the claimant as the making of a claim for immediate payment of a retirement pension.  It was not in the form required for such a claim and was not submitted to the appropriate office required for the making of claims under the regulations. It was dealt with by the Contributions Office simply as the notification and enquiry it appeared from its terms to be, and has never been accepted by the Secretary of State as having amounted to a claim. 
     10.     	By letter dated 28 April 2006, received in the appropriate office on 3 May 2006, the claimant wrote, this time to the Pension Service, asking in clear terms for the payment of her state pension “with immediate effect and backdated to 10 January 2005, when I originally wrote notifying you of the change of circumstances”, saying she had had her reassignment surgery on 10 December 2005.  The letter claimed entitlement to equal treatment with a person of the same age born a female, based on the ruling by the European Court of Justice (“ECJ”) in case C-423/04 Richards v Secretary of State (“Richards”, now reported as R(P) 1/07) issued on the previous day, 27 April 2006 (57).
     11.     	Though not in the prescribed from for claiming retirement pension that letter has (entirely properly) been accepted by the Secretary of State as the making of such a claim effective from the date of its receipt on 3 May 2006 (62).  The claim so made, and pursued in later correspondence, was however turned down by his decision of 11 August 2006 (16) on the ground that whether the claimant could be entitled to retirement pension as a woman over 60 but under the male pension age of 65 depended on the Gender Recognition Act; and as no gender recognition certificate had yet been issued, the claim of 3 May 2006 made when the claimant was only 63 gave rise to no entitlement. 
     12.     	On 4 May 2007 that refusal was upheld by the tribunal, on substantially the same ground (111-114).  On 3 July 2007 the chairman granted the claimant leave to appeal against the tribunal decision on a question of law and that is the appeal before us.   
     13.     	On 16 January 2007, while pursuing her appeal against the 2006 refusal but having now obtained her gender recognition certificate, the claimant made a further claim for retirement pension.  That claim was accepted and the pension was awarded to her as a single woman from 25 December 2006 (the start of the first benefit week after issue of the certificate) when she was aged 64½.  Her entitlement to the pension from that date is accordingly not disputed.  
The legal context: UK domestic law
     14.     	Under section 44 Social Security Contributions and Benefits Act 1992 (“the Contributions and Benefits Act”) it is a basic condition of entitlement to a category A retirement pension that (in addition to satisfying the required contribution conditions, on which no issue arises here) the claimant has attained the pensionable age, which for a man is 65 and for a woman born before 6 April 1950 is 60.  
     15.     	“Man” and “woman” for this purpose have been held to bear their ordinary meanings in United Kingdom law, so that a person’s pensionable age depends on his or her sex at birth, subject only to any change now recognised under the Gender Recognition Act: R(P) 1/80, R(P) 2/80; cf. Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467. 
     16.     	For the acquisition of a different gender to be so recognised in law the relevant conditions in section 2(1) of the Gender Recognition Act are that the person (a) has or has had the disorder medically referred to as gender dysphoria, gender identity disorder or transssexualism, (b) has lived in the acquired gender throughout the two years before applying, (c) intends to continue so to live until death, and (d) produces prescribed evidence of the diagnosis and treatment.  If these conditions are shown to be met a certificate must be granted, though a full certificate is only obtainable if the claimant is unmarried or once any subsisting marriage is dissolved.  On the issue of such a certificate the person’s gender becomes for all purposes the acquired gender, though not so as to affect things done or events occurring before the certificate is issued: see sections 4, 5, 9. There are special provisions in Schedule 5 to the Act dealing with the effect of the gender change on state social security benefits, including retirement pensions.  
     17.     	Under section 1 Social Security Administration Act 1992 (“the Administration Act”) it is a further basic and general precondition of any entitlement to benefit that a claim for it must have been made in the prescribed manner and within the prescribed time.  For category A retirement pension the time so prescribed is within 12 months of any day for which payment of the pension is being sought (regulation 19(1) and Schedule 4 Social Security (Claims and Payments) Regulations SI 1987 No 1968).  What amounts to a claim for this purpose is governed by the same regulations.  By regulations 4(1) and 6(1), claims for retirement pension must be made in writing on a form approved for the purpose or in such other manner, being in writing, as the Secretary of State may accept as sufficient in the circumstances of any particular case; and the date on which such a claim is made shall be the date on which it is received in an appropriate office (of the Department for Work and Pensions).  Claims otherwise than in writing (under regulation 4(11)-(14), by telephone call to a number specified for the purpose by the Secretary of State) have only been able to be made from 2 May 2005 onwards.  
     18.     	There is however no obligation to claim retirement pension from the earliest (or any other) date; and although the entitlement to pension for weeks not claimed in time is lost for good, the 12-month limit on retrospective entitlement is balanced by the provision of permanent increases in the weekly amount of any pension that, for whatever reason, starts later than the earliest date from which it could have been claimed. This (known historically as “deferment” though it is an automatic entitlement and does not have to be specially claimed or opted for) adds an extra one-fifth of one per cent (for periods before 6 April 2005, one-seventh of one per cent) to the pension for each complete week of the period of deferment: section 55 of the Contributions and Benefits Act. 
Directly applicable European Union law
     19.     	Category A retirement pensions are within the material scope of EC Council Directive 79/7/EEC of 19 December 1978 on equal treatment for men and women in matters of social security (“the Directive”), fully applicable in the United Kingdom since 22 December 1984 and prohibiting all discrimination on grounds of sex.  An individual within the personal scope of Article 4(1) of the Directive (this includes an insured person such as the claimant) may rely on its direct effect before the national courts of the United Kingdom to pursue a claim to benefit on the basis of equal treatment, so as to override any condition of the national legislation which infringes that principle and obtain the same benefit as the national law provides for the appropriate comparator: judgments of the ECJ of 24 March 1987 in case 286/85 McDermott [1987] ECR 1453, and 24 June 1987 in case 384/85 Borrie-Clarke v CAO [1987] ECR 2877.  
     20.     	Until the Directive has been properly transposed into national law a member state cannot rely on an individual’s failure to pursue proceedings to assert his or her community law rights, even after these have been declared by a ruling of the ECJ, as a reason for refusal to pay benefits in compliance with the principle of equal treatment, if the effect of the national procedure is to render virtually impossible the exercise of rights conferred by Community law: judgments of the ECJ of 25 July 1991 in case C-208/90 Emmott v Minister for Social Welfare, [1991] ECR 4269 paragraphs 16, 23; and 27 October 1993 in case C-338/91 Steenhorst‑Neerings [1993] ECR 5475 paragraph 15.  
     21.     	However a provision of the national law such as that under section 1 of the  Administration Act and the regulations noted in paragraph 17 above, placing a time limit on the retroactive effect of claims for benefit so as to limit the past period in respect of which arrears of benefit may be payable, is not precluded by Community law from applying to a claim based on the direct effect of the Directive.  This is so even where the period concerned is one in which the member state remains in breach of its obligation to bring its own legislation into compliance with the principle of equal treatment, provided that the limit is one of general application so that the claim based on Community law is not subject to any less favourable conditions than those applying to similar domestic claims: judgment of the ECJ of 6 December 1994 in case C-410/92 Johnson v CAO (No. 2), R(S) 1/95, [1994] ECR I-5483, applying Steenhorst‑Neerings and distinguishing the decision in Emmott; R(IS) 3/06 Secretary of State v Walker-Fox [2005] EWCA Civ 1411, in which it was held that the application of Emmott should be confined to very exceptional circumstances of unconscionable conduct by the state in obstructing an individual’s judicial remedy.  
     22.     	In its judgment of 27 April 2006 in Richards the ECJ ruled that Article 4(1) of the Directive is to be interpreted as precluding legislation which denies a person who, in accordance with the conditions laid down in national law, has undergone male-to-female gender reassignment entitlement to a retirement pension on the ground that she has not yet reached 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.  That ruling (on which no temporal limit was placed) was given in response to a specific question in the Commissioner’s reference (R(P) 1/07 paragraph 19) which had asked:
“(1) Does Directive 79/7 prohibit the refusal of a retirement pension to a male-to-female transsexual until she reaches the age of 65 and who would have been entitled to such a pension at the age of 60 [sic] had she been held to be a woman as a matter of national law?”
Following that ruling, on 27 November 2006 the same Commissioner issued a short decision on file CP 428/04 in terms consented to by the parties, awarding the claimant retirement pension from her 60th birthday and stating simply that this was in the light of the ECJ judgment and for the reasons given by the Court. 
Arguments on the appeal
     23.     	On behalf of the claimant it was contended that the direct effect of Article 4(1) of the Directive, as interpreted by the ECJ in Richards, entitled the claimant from when she first began to live as a female to the same pension benefit as if female from birth; and this was what she ought to have been awarded by the Secretary of State’s decision of 11 August 2006 even though under the Gender Recognition Act her change of gender was not recognised as complete in United Kingdom law until later.  Further or alternatively “woman” for pensionable age under the Social Security Acts should have been interpreted at the date of that decision as including her by virtue of section 3 Human Rights Act 1998 to avoid infringing her human rights as a post-operative male-to-female transsexual as declared in Goodwin v United Kingdom (2002) 35 EHRR 447, resulting in a similar award. 
     24.     	Moreover, that award should be given effect retrospectively to June 2004 when on her own evidence the claimant had first begun to live as a woman: either because her claim for benefit on the basis of equal treatment should be treated as effectively initiated by the earlier letter of 10 January 2005, or (relying on the decision in Emmott cited above) because to apply the normal 12-month limit on prior entitlement to the claim accepted as made on 3 May 2006 was inconsistent with the direct effect of the Directive.  Alternatively if the limit did have to be applied, she should at least have been awarded her pension starting from 12 months before 3 May 2006.  In neither case did the continuation of the marriage until November 2004, or the fact that the claimant was not post-operative until 10 December 2005, prevent entitlement to pension as a single woman arising for periods before those dates. A further argument initially advanced for retrospective entitlement based on an alleged estoppel was not pursued before us.
     25.     	Finally it was submitted that whatever the start date of the claimant’s pension award, it should carry the correct automatic increase for “deferment” under section 55 noted above for any period by then already elapsed since the earliest date she could have claimed her entitlement under the Directive as a woman.   On this and other points, we were asked to exercise the power in section 14(8)(a) Social Security Act 1998 to make any necessary factual findings on the existing evidence and determine the appropriate award ourselves, rather than directing a rehearing by the tribunal.
     26.     	On behalf of the Secretary of State it was argued that no claim to retirement pension had been made before 3 May 2006, by which time the Gender Recognition Act  was in force. The claimant’s rights to have her acquired gender recognised under that Act from the earliest date she was able to comply with its conditions, and to have her pension entitlement determined accordingly, fully complied both with her human rights under the Convention and with her right to equal treatment under the Directive.  The ECJ had expressly held in paragraph 21 of its judgment in Richards that it was a matter for the national law to identify the precise point at which an individual should be legally recognised as having acquired different gender, and as a matter of legal certainty it was necessary to identify a single such point.  This was what the mechanism in the Gender Recognition Act did.  As regards periods of entitlement after that mechanism became available on 4 April 2005, there was therefore no longer any need or scope for recourse to a direct effect claim.   
     27.     	The Secretary of State further submitted that the claimant’s reliance on Emmott was misplaced, and any question about backdated entitlement was governed by the later authorities cited above which distinguished it.  Any claim based on entitlement under the Directive was thus subject to the same 12-month limit as any other, as regards periods before the date of claim; but in any case such a claim was of no avail to the claimant on the actual facts, since she had not been able to show she met the evidential and other conditions for her change of gender to be recognised before December 2006 when her certificate was granted on the renewed application.  The Secretary of State’s award of her pension from 25 December 2006, on the further claim she made immediately after obtaining her certificate, had thus been made from the earliest possible date.  
     28.     	It was confirmed that on that basis the award had been made without including any increase for deferment and the Secretary of State considered this to be correct.  It was accepted however that if contrary to the main argument the claimant could have validly claimed her pension as a woman from some earlier date, the question of deferment increases would need to be revisited.  It was further confirmed that section 27 Social Security Act 1998 (the “test case” rule, referred to by the tribunal and at an earlier stage in argument as potentially limiting the retroactive effect of Richards in social security cases) was of no relevance on the facts of this case in limiting any award to which the claimant might be entitled.  There was no objection to our detemining this ourselves.
Conclusions
     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, overrriding any conditions in the national legislation which otherwise restrict the claimant to less: paragraph 19 above.  
     30.     	As interpreted by the ECJ in Richards, the requirement of Article 4 that “there shall be no discrimination whatsoever on ground of sex” includes the requirement that there shall be no discrimination against transsexuals as compared with other persons of their acquired gender: in other words that a person such as the claimant who has become a woman is, from then on, not to be treated any worse than other women on account of having once been a man.  
     31.     	There was no temporal limitation on the effect of the judgment in Richards, and what is said above applies as regards pension entitlement both before and after the coming into force of the Gender Recognition Act (which was introduced as a measure to comply with the Human Rights Convention, rather than to transpose anything in the Directive). It is thus still necessary in a case such as this first to identify what the Directive requires, and then see whether the national legislation, including the Gender Recognition Act, provides it.  A claim asserting entitlement on the basis of the Directive must therefore be accepted as a possibility by virtue of the European Communities Act 1972, even though the Gender Recognition Act has come into force and whether based on events and circumstances before it did so on 4 April 2005 or after.  
     32.     	The claimant’s letter of 10 January 2005 was not such a claim, or a claim for anything at all, and no reasonable person could have regarded it as such.  A mere inquiry such as that made by the letter is not a claim: cf. CG 3844/06 paragraph 15.  The chairman was plainly right on this point and the contentions to the contrary are simply unarguable.  The only relevant claim requiring to be considered in the appeal to the tribunal was therefore the one accepted as made on 3 May 2006.  As already noted, an earlier argument seeking to assert entitlement on the basis of an alleged estoppel despite the absence of a valid claim before that date was not pursued (and could not possibly have succeeded anyway, it being well established that the doctrine of estoppel cannot be used in this statutory jurisdiction to create an “entitlement” outside the terms of the legislation itself: R(P) 1/80; R(SB) 4/91 Davies v Secretary of State, CA).
     33.     	The period of potential entitlement that had to be considered by the tribunal on the claim of 3 May 2006 was that from 9 May 2005 to 11 August 2006: that is from the start of the first benefit week within the 12 months preceding the claim (section 1 of the Administration Act and the regulations cited in paragraph 17 above) to the date of the Secretary of State’s determination refusing it (section 12(8)(b) Social Security Act 1998).  In our judgment the 12-month limit on arrears of possible entitlement is not inconsistent with the claimant’s right to assert a claim to equal treatment based on the Directive, and is permitted under the Directive in relation to such claims.
     34.     	 We reject the contrary argument for the claimant based on what was said by the ECJ in paragraph 23 of case C-208/90 Emmott cited above, and agree with the Secretary of State that the reliance on it in this case is misplaced, for two main reasons.  In the first place, in this context the 12-month limit is one on arrears of entitlement only; it is a limit of universal application, does not stop a person claiming or becoming entitled to pension altogether, and does not apply in any less favourable way to direct effect claims.  It is therefore directly within the principle stated by the ECJ in cases C-338/91 Steenhorst‑Neerings and C-410/92 Johnson (No. 2) cited above, that any entitlement based on a claim made under the Directive may in the interests of legal certainty be made subject to the same general time limit as any other (the latter case specifically confirming for this purpose the validity of section 1 of the Administration Act).  
     35.     	Secondly there is no question here of the kind of “unconscionable” conduct on the part of the State required, on the authority of Secretary of State v Walker-Fox cited above which is binding on us, to bring the case within the exceptional circumstances where the decision in Emmott can apply.  What was said by the ECJ in that case is clearly distinguishable because of its exceptional facts and the nature of the assurances by which the complainant was induced to delay issuing legal proceedings, making it obviously impermissible for that delay to be pleaded as a block to her claim afterwards.  Here by contrast there was nothing done or said to induce the claimant to believe that if she refrained from initiating the process to pursue a claim, it would nevertheless be dealt with.  The official responses merely stated, entirely accurately, the position as it then stood in United Kingdom law, with the helpful addition of information about how the claimant might apply to improve it for herself under the Gender Recognition Act.  We find nothing unconscionable or open to rational criticism in that.   
     36.     	Whether the claim of 3 May 2006 gives rise to any pension entitlement for the claimant at any point in the period 9 May 2005 to 11 August 2006 depends on when for this purpose she first met the conditions for entitlement to immediate pension as a single woman who had attained pensionable age.  Under the Gender Recognition Act and the Contributions and Benefits Act that was not until 21 December 2006, but as noted in paragraph 23 above the claimant contended that was not conclusive and that overrriding provisions under the European Communities Act 1972 or the Human Rights Act 1998 required her to have been counted as a woman from an earlier date.  
     37.     	The argument on section 3 of the Human Rights Act 1998 was not developed but we do not consider it assists the claimant.  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. 
     39.     	Unlike the context of Richards, in which there appears to have been no dispute that the claimant had, before making her claim for pension as a woman, met the relevant diagnostic conditions and completed her gender transition in all respects other than being able to have it recognised in United Kingdom law for lack of a mechanism, the present claimant has had such a mechanism available to her since 4 April 2005, but was not then immediately able to use it because a completed gender transition was not yet able to be demonstrated in her case on the facts.   In our judgment, a person in that position does not become entitled to claim the benefit of equal treatment under the Directive as a woman until it is. 
     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.  
     41.     	We say that with particular reference to the requirement for a person to have lived in the acquired gender throughout the previous two years, and the decision not to make the carrying out of surgery to change physical appearance or characteristics a necessary (or for that matter a sufficient) condition on its own for recognising a person’s gender change in law.  Both were of course the result of very careful consideration when the legislation was enacted and so far as it is necessary for us to pronounce, we find them fair and proportionate in the way they draw the difficult and sensitive line needed for the sake of legal certainty and the protection of the rights and freedoms of others, for the reasons set out by the Joint Parliamentary Committee on Human Rights in its 19th Report of 17 November 2003, especially paragraphs 25-29, 74-78.  The two-year requirement reflects what is normally the precondition for any surgical treatment in the Nationa Health Service (paragraph 74(b) ibid) and also the required criterion in the current World Health Organisation classification of mental and behavioural disorders (ICD-10) for a diagnosis of the relevant condition F64.0 Transsexualism, that “The transsexual identity has been present persistently for at least 2 years”.  We were not persuaded that anything in the Directive or the ECJ judgment in Richards requires either that requirement itself, or the judgment of the expert body specifically set up to consider such questions on when it has actually been shown to be met on the facts of an individual case, to be overridden for the present purpose under the doctrine of direct effect.  
     42.     	By the same token, though it is not directly material on the facts before us, we were not persuaded that the Directive (any more than the Human Rights Convention: cf. Parry, cited above) is infringed by the requirement in section 4 of the Gender Recognition Act for a subsisting marriage in one gender to be properly brought to an end before a change to the other can be legally recognised as complete.  Legal marriage has consequences in the pension field for more parties than one, and 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.  We were told that the claimant in Richards may in fact not have completed her divorce until after the date from which she was held entitled to pension, and it was urged that this should be treated as a precedent for holding section 4 inconsistent with the Directive, but we decline to do so.  Whether or not this was brought clearly to the attention of either the ECJ or the Commissioner we were not persuaded that the terms of the ECJ ruling or the consent order subsequently made provide us with any assistance or binding authority on the point, which was put in issue before us in a way it seems not to have been in that case.
     43.     	The consequence in the present case is that the claimant would have been unable to rely on a claim to equal treatment under the Directive before December 2006 because that was when she first became able to demonstrate to the satisfaction of the Gender Recognition Panel that she had been living in her acquired gender throughout the previous two years, the date of her surgery being immaterial for this purpose.  The three weeks it took to issue her certificate being well within any permissible margin for the national system to determine recognition of her change of gender, it further follows that she is not able to establish a pension entitlement under the direct effect of the Directive for any period before the national law awarded it to her anyway, from 21 December 2006; nor is the amount of that award required by the Directive to include any increase for deferment, since it was starting at the earliest date from which she could have claimed it.  It was not argued on her behalf that as a woman she was entitled to deferment increases measured from the age 60 despite not having become (on any view) entitled to claim pension under the Directive as a woman until later, nor do we think it could be so argued. The true comparison for equal treatment in our view is with a non-transsexual woman of similar age, but only as respects the percentage increase in pension she would obtain for a period of deferment beginning with the time the claimant first became so entitled under the Directive, and ending with the actual starting date of the claimant’s pension. 
     44.     	 Accordingly the decision of the chairman that there was no entitlement to pension established on the claim of 3 May 2006 must in our judgment be confirmed as the correct one, though for reasons that differ from those he expressed.  We were not, in  those circumstances, persuaded that any misdirection his reasoning embodied renders the decision itself materially erroneous in law so as require it to be set aside.  
     45.     	For the reasons given above we dismiss this appeal. 

(Signed)

D J May QC

P L Howell QC

E A Jupp

Commissioners

 13 March 2008