[2008] UKSSCSC CP_98_2007 (15 May 2008)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	My decision is that the appeal tribunal (the tribunal) erred in law in its decision given on 200 under registration No:  I allow the claimant’s appeal.  Under section 14(8)(b) of the Social Security Act 1998, I set aside the tribunal’s decision and, as invited by the parties, I make the decision which the tribunal should have made, namely:

“The Secretary of State’s decision of 24 June 2005 superseding the claimant’s pension award is set aside, so that her award from 29 March 1998 is reinstated.  The Secretary of State is to calculate the arrears due, with either party being at liberty to apply to me or another Commissioner if I am not available, within one month of this decision being issued if agreement is not reached on the figures”. 

2.	Both parties have expressed the view that the decision appealed against was erroneous in point of law, which allows me to deal with the error more briefly.  

3.	Following the issue of a Gender Recognition Certificate to the claimant, on 24 June 2005 the Secretary of State superseded and reduced the additional pension element of the claimant’s pension award made to her with effect from her 65th birthday on 29 March 1998, when she was regarded as a man, on the grounds that her earnings after the age of 60 were not to be used when calculating her additional state pension, resulting in its being reduced.  The claimant’s appeal to the tribunal was dismissed, and with leave of the district chairman, the claimant appealed. 

4.	Paragraph 45 of the decision of a Tribunal of Commissioners in CP/1425/2007 draws attention to the provisions of paragraph 7(4) of Schedule 5 to the Gender Recognition Act 2004.  Paragraph 7 provides:

“(1) Any question –
  
  (a) whether the person is entitled to a Category A retirement pension (under section 44 of the [Social Security Contributions and Benefits Act 1992] for any period after the certificate is issued and

  (b)(if so) the rate at which the person is so entitled for the period,
is to be decided as if the person’s gender has always been the acquired gender.

…………

(4)But paragraph (1) does not apply if and to the extent that the decision of any question to which it refers is affected by - 

(a)the payment or crediting of contributions, or the crediting or earnings, in respect of a period ending before the [gender recognition] certificate is issued,

(b)………..”

5.	It is accepted by the Secretary of State that in the light of paragraph 7(4) of Schedule 5 it was erroneous to reduce the claimant’s addition pension element in her pension award.  I accept this is the position.  The tribunal, though it is not to be criticised for this, was therefore in error in its decision rejecting the claimant’s appeal.

6.	For the reasons stated, the claimant’s appeal succeeds; my decision is set out in paragraph 1.

(Signed)                  E A Jupp
	            Commissioner
                                         
                          15 May 2008