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Access this URL (http://www.xproexperts.co.uk/newsletters/sept10/Timbrell_Case.pdf)Judgment Approved by the court for handing down[Link to copy hosted by X-Pro]
Download this file (Timbrell_Case.pdf)Judgment Approved by the court for handing down[Archive copy hosted by UK Trans Info]

Brief Summary

Court of Appeal judgment from Lord Justice Aikens dealing with a trans woman wanting to claim state pension at age 60. This case deals only with situations that arose before the Gender Recognition Act came into force.

This case led to a procedure being put in place for trans women born between 24 December 1919 and 3 April 1945 to put in a claim for backdated state pension if they can show they had orchidectomy, penectomy, vaginoplasty, clitoroplasty and/or labioplasty before 4th April 2005. The state pension will be backdated to when they turned 60 or when they had one of the above operations, whichever date is later. For more information on this, see State Pension: equal treatment rights for social security purposes for periods before the Gender Recognition Act 2004 came into force.

Extract from Judgment

  1. Ms Christine Timbrell was born a male on 17 July 1941. From her teenage years she felt that she should have been a girl. In her twenties she met Joy and they were married and had two children. Ms Timbrell became an accountant. In the late 1990s Ms Timbrell took advice from a consultant psychiatrist and she was treated for gender dysphoria. Then in October 2000, with the full knowledge and consent of Joy , Ms Timbrell underwent gender reassignment surgery. Joy and Ms Timbrell decided to continue to live together as a married couple. They remain so. 
  2. On 17 July 2001 Ms Timbrell reached her 60th birthday. Just over a year later, on 6 August 2002, Ms Timbrell applied to the Inland Revenue National Insurance Contributions Office to receive her state pension, which she asked to be back-dated to her 60th birthday. The application was not dealt with promptly, but appears to have been shuffled between Her Majesty’s Revenue and Customs (“HMRC”) and the Department for Work and Pensions (“DWP”).
  3. On 1 July 2004, the Gender Recognition Act 2004 (“GRA”) was passed. It came into force as from 4 April 2005. I have set out relevant sections in Appendix C to this judgment and I shall have to consider some of its provisions in more detail below. But for the present the important thing to note is that the GRA creates a Gender Recognition Panel and that body has the power to grant to an applicant a “Gender Recognition Certificate”, recording that the applicant has changed gender and intends to continue to live until death in the acquired gender.
  4. Gender Recognition Certificates can either be interim or full. Certain conditions must be fulfilled before the Panel will grant either form of certificate. A married person who has changed gender and has otherwise fulfilled the statutory requirements will only be able to obtain a full Gender Recognition Certificate from the Gender Recognition Panel if the applicant has been granted a divorce. The GRA provides that a decree of nullity can be granted on the ground that an interim Gender Recognition Certificate has been issued to a party to the existing marriage. Once a divorce has been obtained on that ground, the Gender Recognition Panel must grant the applicant a full Gender Recognition Certificate and then the person’s gender becomes for all purposes the acquired gender. Schedule 5 of the GRA stipulates that any question of whether a person is entitled to a retirement pension for any period
    after the Gender Recognition Certificate has been issued shall be decided as if the person’s gender had always been the acquired gender.
  5. On 27 April 2006, the First Chamber of the European Court of Justice (“ECJ”) gave its judgment on an application for a preliminary ruling in the case of Richards v Secretary of State for Work and Pensions. Ms Richards, previously a married male, had undergone gender re-assignment surgery. She remained married thereafter. Ms Richards applied to the DWP for a pension from the age of 60. That was refused by the Secretary of State for the Department of Work and Pensions (“SSWP”), so Ms Richards appealed to a Social Security Commissioner. In October 2004 the Commissioner applied to the ECJ for a preliminary ruling on whether the SSWP’s refusal was lawful under the terms of Council Directive 79/7/ EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (“Directive 79/7/EC”). 
  6. The ECJ held that upon the correct interpretation of Articles 4 and 7 of Directive 79/7/EC the refusal of a retirement pension to a male to female transsexual until the age of 65 was prohibited if that person 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.  Effectively, therefore, the ECJ held that Ms Richards was entitled to receive a state pension from the age of 60.
  7. In March 2006 Ms Timbrell, knowing of the proceedings in the ECJ in the Richards case, made a further claim to the SSWP to have her state pension from her 60th birthday. On 11 April 2006 the SSWP decided that Ms Timbrell was entitled to a state pension, but only from her 65th birthday.
  8. Ms Timbrell appealed that decision to the Appeal Tribunal. It gave a decision on 20 November 2006. The Appeal Tribunal treated Ms Timbrell’s claim as having been made only in March 2006. It held that because she had not obtained a full Gender Recognition Certificate under the GRA, she was not entitled to legal recognition of her new gender and so not entitled to claim her state pension as a woman, ie. from the age of 60. The tribunal noted that the position might be different in respect of the period between Ms Timbrell’s 2002 claim and 3 April 2005, ie. the day before the GRA came into force. But it concluded that this period was not the subject of the proceedings before the Tribunal and so did not rule on it. 
  9. Ms Timbrell appealed to what had by now become the Administrative Appeal Chamber of the Upper Tribunal (“the Upper Tribunal”). Prior to the hearing before the Upper Tribunal, the SSWP decided that Ms Timbrell had made a valid claim for a state pension on 21 August 2002 which had not yet been adjudicated upon. Then on 18 January 2008 the SSWP decided that Ms Timbrell’s claim of 21 August 2002 should be refused.
  10. However, the Secretary of State supported the appeal of Ms Timbrell to the Upper Tribunal, apparently accepting that (a) Ms Timbrell had made a valid claim in August 2002; (b) the Appeal Tribunal’s decision that the requirements of the GRA had to be fulfilled before Ms Timbrell could claim a pension was wrong; and (c) Ms Timbrell’s existing marriage should have no bearing on her right to a state retirement pension. The SSWP asked that the matter be remitted back to him.
  11. The Upper Tribunal decided otherwise. In her decision of 12 March 2009, Upper Tribunal Judge Jupp held that Ms Timbrell was not entitled to a state retirement pension before her 65th birthday because “she does not satisfy the criteria to be treated as a woman in all respects which, (subject to satisfaction of other legislative conditions) could entitle her to receive a Category A state pension at the age of 60 under Directive 79/7/EEC”.
  12. Ms Timbrell appeals to this court with the leave of the Upper Tribunal, which considered that the case raised an important point of principle, with which view I agree. The SSWP did not adopt the same stance before this court as had been taken before the Upper Tribunal and so opposed Ms Timbrell’s appeal. On 4 March 2010 we heard most helpful argument from Ms Marie Demetriou on behalf of Ms Timbrell and from Mr Jeremy Johnson on behalf of the Secretary of State. Judgment was reserved.

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