CSP_503_2007 [2008] UKSSCSC CSP_503_2007 (13 March 2008)

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[2008] UKSSCSC CSP_503_2007 (13 March 2008)

    ToC: DJM, PLH, EAJ Commissioner's File: CSP 503/07 (heard with CP 2862/07 & CP 1425/07)
    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: Galashiels
    Tribunal Case Ref: 094/07/00005
    Tribunal date: 10 May 2007
    Reasons issued: 26 June 2007
    [ORAL HEARING]
    Introduction
  1. This appeal by the Secretary of State succeeds in part. The decision of the Galashiels appeal tribunal of 10 May 2007 was erroneous in point of law and we set it aside. We exercise the power in section 14(8)(a) Social Security Act 1998 ("the 1998 Act") to substitute the decision we are satisfied the tribunal ought to have given, there being no dispute as to the material facts. This will result in an increase in the claimant's pension, contrary to the submissions of the Secretary of State, though conversely not all she was awarded by the tribunal.

  2. This appeal arises out of a written application the claimant made to the Secretary of State by letter dated 3 July 2006 asking for her category A retirement pension, then already in payment to her for just over a year since it had been duly claimed and awarded from her 65th birthday, to include additional backdated payments for the preceding five years back to when she was 60. The questions are whether any additional or modified award of category A retirement pension ought to have been made to her in consequence of that letter, and if so from what date and at what rate.

  3. Our substituted decision in place of that of the tribunal is that the decision of the Secretary of State given in response to that letter on 11 August 2006 was wrong and instead the claimant's then current award of her category A retirement pension made on 13 April 2005 is superseded because it was erroneous in law for the reasons given below. The corrective award is to have effect from 4 July 2006 under section 10 of the 1998 Act and regulation 6(2)(b) Social Security (Decisions and Appeals) Regulations SI 1999 No 991 and from that date must include the appropriate increases under section 55 Social Security Contributions and Benefits Act 1992 for deferment of a woman's retirement pension from the claimant's 60th birthday until its actual starting date of 20 June 2005. The case is referred back to the Secretary of State to calculate the corrected amount of the pension award, notify it to the claimant and arrange for the payment of any arrears due.

  4. We held an oral hearing of the appeal, together with two others raising related issues. Mr S Chelvan of Counsel, instructed by Herbert Smith, appeared for the claimant, and Mr J Heath of the Solicitor's Office, Department for Work and Pensions for the Secretary of State. Our accompanying decision of the same date in case CP 2862/07 deals more fully with certain common points, and to avoid repetition is to be read in conjunction with this one.

    5. Factual history
  5. The claimant in this case is a male to female transsexual, born male on 16 June 1940. For some 20 years of her adult life she lived as a man, marrying and remaining married as a man until the age of 40. According to her evidence to the tribunal which was not disputed, the claimant had been living and working as a woman since February 1979, and had gender reassignment surgery in March 1983 (appeal bundle page 16). On 30 June 1980 the marriage was brought to an end by divorce (186). A little over a year after the Gender Recognition Act 2004 came into force on 4 April 2005, she made a succesful application for her change of gender to be formally recognised, and a full gender recognition certificate was issued to her on 1 August 2006 (73).

    6. Claim history
  6. On 23 February 2000, that is a few months before her 60th birthday, the claimant had an interview with a local official of the national insurance contributions office (at that date part of the Inland Revenue) about her National Insurance Contributions record. Among other things the effect of her gender reassignment was discussed, and she signed a short statement (on paper still headed "Department of Social Security": 101-2) in which she acknowledged that

    7. "The situation regarding my national insurance contribution position has been explained to me and I understand that if I continue to work I will be liable for contribution up to the age of 65. ..."
  7. On 9 March 2000 the NI Contributions Office, Inland Revenue, "Special Section" wrote to the claimant (150-1) saying

    8. "You recently discussed your National Insurance Contributions record and retirement pension date with your local NI Contributions Office and a couple of issues remained outstanding. ...
    With regard to your liability to pay National Insurance contribution beyond age 60. Despite the fact that the Scottish Assembly has adopted the rulings of the European Court of Human Rights, the Assembly itself does not have the necessary legislative powers to influence the rules relating to the administration of Social Security.
    British Social Security administration currently relies upon the gender at birth and as evidenced by the birth certificate, for the establishment of its records. Our records therefore show retirement pension will be paid to you from 16/6/05.
    I hope this clarifies the questions at your recent interview."
  8. On 21 May 2003, the claimant wrote again to that office. The letter itself is not in the appeal bundle but according to her submission to the tribunal at page 17:

    9. "In May 2003 on hearing that a female to male [sic] transsexual, a New Zealand national was being given her State Pension by this country, I applied for my state pension and a refund of my National Insurance contributions from June 2000."

    On 29 May 2003 the same officer as had written the letter of 9 March 2000 replied (32):

    "Social Security administration relies upon a person's gender at birth and as evidenced by the birth certificate, for the establishment of its record. ... In essence, this means your retirement pension cannot be paid until 16/6/05. Our records show this was explained to you ... in February 2000. ...
    I have taken advice from DWP and they confirm there are no discretionary powers available to them, which would allow a retirement pension payment to be made to you, prior to your 65th birthday. ...
    I know you will be disappointed with this reply, but until EU legislation is ratified by Central Government, DWP cannot amend the payment date of your retirement pension."
  9. On 17 July 2004 the claimant wrote back to the Inland Revenue (34) referring to the passing of the Gender Recognition Act and asking:

    10. "... as I am more than 25 years down the road living as [the female name she had adopted] and most of those post operative, can I have my pension now? Will I get a refund of those extra 5 years contributions I had to pay? Will my pension be backdated to when I was 60 years of age...?"

    On 26 July 2004 the same office replied (35-6) saying that the Gender Recognition Act would allow a person's gender to be legally changed from April 2005 when it came into force, but only by obtaining a certificate in accordance with its requirements. The legal change in gender under the Act would not be retrospective, so that the claimant would remain unable to claim her retirement pension until a certificate was issued or her 65th birthday, whichever was earlier. She would not be able to receive a refund of contributions or have her pension backdated to age 60.

  10. None of the letters noted above was actually pursued by the claimant as the making of a claim for immediate payment of a retirement pension. They were not in the form required for such a claim and were not submitted to the appropriate office for the making of claims under the regulations. None has ever been accepted by the Secretary of State as having amounted to a claim. In her own letter of 3 July 2006 (1) the claimant said she had not made a claim for state pension in 2000, though she had written in 2003 requesting her pension then.

  11. On 2 March 2005, having been sent the necessary forms in advance of attaining the male pension age of 65, the claimant duly applied for her category A retirement pension from the "due date" appropriate to a man (37, 113). By a decision made and notified to her on 13 April 2005 (113) an award of category A retirement pension was made to the claimant on that claim, starting from the earliest possible date for a man which would have been 20 June 2005, the start of the first benefit week after the claimant's 65th birthday. The claimant did not seek to challenge or appeal against the decision of 13 April 2005 which determined the amount and starting date of her pension entitlement in that way. Payment of her pension in accordance with it has continued at all material times since 20 June 2005.

  12. A few days after the European Court of Justice ("ECJ") had held in case C-423/04 Richards v Secretary of State ("Richards", now reported as R(P) 1/07) that a male-to-female transsexual should be entitled to claim retirement pension on an equal basis with other women, the claimant wrote to the contributions office on 8 May 2006 (43) saying "I am now asking again for my Pension to be backdated to what should have been my entitlement in 2000 and for the return of my contributions for those 5 years up until 2005". After a reply on 15 May 2006 (44) saying merely that the judgment was being "studied carefully" by the DWP, the claimant followed up with her letter of 3 July 2006 at page 1, saying

    13. "I am a post operative transsexual woman and have been living permanently as a woman since February 1979. I reached the age of 60 on the 16th June 2000 but at that time did not make a claim for state pension because I was advised by my local DSS that as a transsexual woman and at that time, still legally regarded as a man, my application would be unsuccessful.
    I did write to your department nearly 3 years ago requesting my pension then,
    I now wish to apply for my pension to be backdated to the 16/6/2000 when I reached the age of 60-, in the light of the recent decision of the European Court of Justice in the case of Sarah Margaret Richards v Secretary of State for Work and Pensions (Case C-423/04) ECJ 27-04-06.
    Can I please have an update on my application so that I can urgently review my next step with my application".
  13. That letter was forwarded to the Secretary of State on 4 July 2006 and accepted as an application or claim made on that date for an additional or supplemental award of pension (113). On 11 August 2006 a departmental decisionmaker on behalf of the Secretary of State recorded a decision rejecting it in the following terms (2):

    14. "Decision – Type – reconsideration. Effect on benefit – not changed. [The claimant] is not entitled to State Pension from 16th June 2000 to 15th June 2005 (both dates included). This is because there is a time limit for claiming all benefits including State Pension. The time limit for claiming State Pension is 12 months, from the date of 16th June 2000 (ending on 16th June 2001). Therefore as more than 12 months have elapsed since [the claimant]'s 60th birthday the claim is out of time and disallowed."

    The terms of that decision were notified to the claimant in the decision letter dated 14 August 2006 (3-4). A further letter of explanation on 18 August 2006 (5-6) also referred to the substantive arguments on human rights and European law underlying the claimant's application but stated the department's understanding that it remained the case that a male to female transsexual could not have become entitled to state retirement pension under the male pensionable age of 65 before the Gender Recognition Act came into force on 4 April 2005.

  14. On 16 February 2007 that rejection was overturned by the tribunal on appeal. Replacing it with a decision (71) that instead purported to award the claimant retirement pension retrospectively to her 60th birthday, the tribunal explained its ground for doing so (succinctly, since as the chairman said there was bound to be an appeal: 74) as follows:

    15. "It is accepted and not disputed that [the claimant] was approached by an officer of the Inland Revenue prior to her 60th birthday and was advised that although she had been accepted and worked as a female for many years before retiring, she was still considered to be male and therefore could not be paid a pension until her 65th birthday. I find that [she] did not make her claim at the relevant time because of the advice she was given by the Inland Revenue and that advice discriminated against her on the grounds of her sex and was a breach of Article 14 of ... Schedule 1 to the Human Rights Act.
    It follows that the decision under appeal is also a breach of the same provision. I find that [the claimant] is entitled to retirement pension from the date of her 60th birthday."
  15. On 15 August 2007 the chairman granted the Secretary of State leave to appeal against the tribunal decision on a question of law and that is the appeal before us.

    16. The legal context
  16. As was correctly conceded on behalf of the claimant, there is no provision of the Human Rights Act 1998 that can justify its use in the way apparently envisaged by the tribunal to create the benefit entitlement it purported to award, if that did not otherwise exist in United Kingdom and directly applicable European Union law.

  17. The general provisions of law that do apply in this area are summarised in paragraphs 14-22 of our decision in case CP 2862/07, which are to be read as incorporated here, subject to the additional point that for retirement pension claims made before 6 July 2005 the time limit referred to in paragraph 17 was 3 months instead of 12.

  18. In the present case, unlike that one, the claimant had already duly claimed and been awarded her category A retirement pension for life before the application that gave rise to these proceedings, so it is also necessary to consider the law about binding decisions on benefit entitlement and the extent to which these may be reopened.

  19. Under section 8 of the 1998 Act it is for the Secretary of State to decide any claim for a relevant benefit, which includes a claim for a retirement pension. In the same chapter of the 1998 Act, section 17 ("Finality of decisions") provides so far as material that:

    20. "17. - (1) Subject to the provisions of this Chapter, any decision made in accordance with the foregoing provisions of this Chapter shall be final; ..."
  20. Apart from an appeal to a tribunal under section 12, the 1998 Act provides for only two relevant ways in which an award decision on a claim for retirement pension, determining the amount of pension to which the claimant is entitled and the date from which that entitlement started, may be altered by a later decision, as an exception to the statutory rule of legal certainty (or res judicata) that otherwise applies under section 17.

  21. Under section 9 ("Revision of decisions") any such decision may be revised by the Secretary of State in prescribed cases or circumstances; and unless regulations otherwise provide the revision takes effect from the effective date of the original decision.

  22. Under section 10 ("Decisions superseding earlier decisions") any such decision may be superseded by a further decision of the Secretary of State in prescribed cases or circumstances; and unless regulations otherwise provide, the superseding decision takes effect only from the date it is made, or where applicable the date of the application for it.

  23. The circumstances in which these powers may be exercised are prescribed in the Social Security and Child Support (Decisions and Appeals) Regulations SI 1999 No 991 ("the Decisions and Appeals regulations") by which so far as material :

    24. (1) by regulation 3(5)(a) a decision may be revised under section 9 if it "arose from an official error", and in that case there is no modification of the rule in the section itself that the revision has effect back to the same date as the original decision. However the scope of this power is confined by the definition in regulation 1(3) of what counts as an "official error" for this purpose, as:
    " 'official error' means an error made by ... an officer of the Department for Work and Pensions ... acting as such which no person outside the Department ... caused or to which no person outside the Department ... materially contributed; ...
    but excludes any error of law which is shown to have been an error of law by virtue of a subsequent decision of a Commissioner or the court;"
    (2) by regulation 6(2)(a) and (b) a decision may be superseded by another decision of the Secretary of State under section 10 if (a) there has been a relevant change of circumstances since the original decision took effect; or (b) the original decision was erroneous in point of law. By regulation 7 a superseding decision for change of circumstances under (a) may take effect from the date of the change, or the date it is notified if the notification is late, but never earlier; for a superseding decision on the ground of error of law under (b) there is no relevant provision for the corrective award to be given effect from any earlier date than provided for in section 10, namely that of the superseding decision itself or the application for it.
  24. The facts of this case also make it necessary to consider one of the special provisions in Schedule 5 to the Gender Recognition Act dealing with the effect of a recognised gender change on state social security benefits, including retirement pensions. By paragraph 10 ("Deferment of pensions"):

    25. "10. (1) The person's entitlement to -
    (a) a Category A retirement pension, ...
    is not to be taken to have been deferred for any period ending before the certificate is issued unless the condition in sub-paragraph (2) is satisfied.
    (2) The condition is that the entitlement both -
    (a) was actually deferred during the period, and
    (b) would have been capable of being so deferred had the person's gender been the acquired gender."
    Arguments on the appeal
  25. On behalf of the Secretary of State it was contended that the tribunal had misdirected itself in the most basic way about the operation of the Human Rights Act, and there was no legislative basis for the award it purportedly made. The decision should be set aside and the decision under appeal of 11 August 2006 refusing extra benefit restored, since the claimant's application of 4 July 2006 showed no basis for any additional award under domestic and European Union law, correctly interpreted.

  26. On that, similar arguments were relied on to those noted in case CP 2862/07 paragraphs 26-7 as regards the application of the Gender Recognition Act to determine questions of gender for benefit purposes at all times after it came into force. The claimant had duly claimed her pension from the age of 65 in 2005 and not before: there was no scope for this fact to be altered or some separate entitlement to be created by the doctrine of estoppel or anything analogous. Though it was agreed after some reflection that there might be continuing scope for asserting entitlement on the basis of equal treatment under the Directive as regards periods before 4 April 2005 because the Gender Recognition Act had not been made fully retrospective, it was submitted that this could be of no assistance to the claimant on her application of 4 July 2006. This was because the period for which backdated benefit was being sought was long in the past, outside that for which any fresh claim could have been made; and the application was also outside any relevant power to alter retrospectively the previous binding decision of 13 April 2005 which had already determined the starting date and amount of the claimant's category A retirement pension. In particular the power in section 9 of the 1998 Act was not available to revise her pension entitlement back to (still less before) the start of that award in 2005, because there had been no "official error" within the definition: the decisions of the ECJ and the Commissioner in Richards, showing the previous generally held understanding of the scope of the Directive to have been too narrow, only came later.

  27. The Secretary of State further submitted that as in case CP 2862/07 the claimant's reliance on Emmott was misplaced, and the correct principle was that set out in the later authorities which distinguished it. It was not inconsistent with the Directive for an application for benefit based on the principle of direct effect to be subject to the same procedural requirements and time limits as other applications made under the domestic law. There was therefore no scope for a retrospective award for any period.

  28. It was confirmed that the claimant's pension award had at no time included any increase for deferment, and the Secretary of State submitted that since the application of 4 July 2006 had not contained any claim for increased pension on that ground, neither he nor the tribunal should be held wrong in law for not having considered or dealt with it as an issue, and it did not arise in this appeal. The question of deferment increases at least for the future might however need to be revisited separately if, contrary to the main submissions, the claimant was held to have been entitled to claim her pension from some point earlier than her 65th birthday. If the application asking only for backdating was correctly to be viewed as one for the claimant's entire pension award to be corrected to conform with her rights under the Directive, it was accepted that the relevant power was that in section 10 of the 1998 Act to supersede it on the ground of error of law, in which case any corrective award would have effect under section 10(5) from the date of the application; and it was not disputed that the tribunal on the appeal, and thus we, could exercise all relevant powers of the Secretary of State: cf. R(IB) 2/04 paragraph 25. It was confirmed that section 27 of the 1998 Act (the "test case" rule, referred to 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, and was not relied on to limit any award to which the claimant might be entitled.

  29. On behalf of the claimant it was conceded that the appeal tribunal decision could not stand in law, because the findings and reasoning on the Human Rights Act were deficient. Nevertheless it was submitted that the actual result was correct and the claimant was entitled to be awarded her pension from the age of 60, albeit for different reasons. In support of that, similar contentions were advanced to those noted in paragraph 23 of our decision in case CP 2862/07 on the direct effect of Article 4(1) of EU Council Directive 79/7/EEC ("the Directive"), as interpreted by the ECJ in Richards, as entitling her to the same pension benefit from the age of 60 as if female from birth.

  30. It was further contended that the decision of the Secretary of State on the claimant's application of 3 July 2006 ought to have been to award her that pension benefit retrospectively to June 2000, as the tribunal did. This was because the policy and conduct of the Department evidenced in her contacts and correspondence with the Inland Revenue in 2000, 2003 and 2004 had been to pre-empt the making of claims for pension by transsexuals at the proper time. It was clarified in argument that those earlier attempts at claiming were not being relied on for this purpose as formal claims giving rise to entitlement in their own right, but they did mean that by analogy with estoppel the absence of an earlier claim could not now be used as a reason for denying the entitlement such a claim should have produced under the Directive. Further or alternatively, to do anything other than make such an award in response to her letter of 4 July 2006 asserting her entitlement under the Directive was inconsistent with its direct effect.

  31. On the latter point, similar arguments to those noted in case CP 2862/07 on the decision of the ECJ in Emmott were relied on for disregarding any national procedural provisions or time limits that would otherwise prevent or restrict the retrospective award sought; and in this context it was said that the official responses in 2000-2004 amounted to "unconscionable conduct" such as to invalidate any later reliance on the pension not having been claimed at the age of 60. Finally it was submitted that the award of pension that should have been made in response to the claimant's application of 4 July 2006, whether retrospective or only prospective from that date, ought in any event to have incorporated the correct automatic increase for "deferment" from the age of 60 to the actual starting date of the pension, under the provision noted in case CP 2862/07 paragraph 18; it being common ground that no such increase had ever been included.

    32. Conclusions
  32. We accept the submissions of both sides that the tribunal's decision purporting to award benefit directly under the Human Rights Act was completely and obviously misdirected in law, and on that ground it must be set aside. The relevant questions of principle are those argued in all three cases before us, on the effect of the Directive and whether the claimant's letter invoking her right to equal treatment under it in the light of the Richards decision gave rise to any extra benefit entitlement not already awarded.

  33. Our general conclusions on the direct effect of the Directive and the way this interacts with the national law in the Social Security Acts and the Gender Recognition Act appear from paragraphs 29-43 of our decision in case CP 2862/07, and are to be read as incorporated here.

  34. It follows from those general conclusions, in particular from that in paragraph 31 that the possibility of an increased or additional entitlement under the Directive has to be taken into account under the European Communities Act 1972 after the Gender Recognition Act came in force as well as before, that we are not able to accept the Secretary of State's main submission that the Gender Recognition Act removes any scope for reliance on the Directive and Richards could therefore not assist the claimant.

  35. We further reject the Secretary of State's submission that the scope of the appeal ought to have been confined to the single issue of backdating the claimant's pension, ignoring the question of whether it was correctly calculated. The claimant's letter of 3 July 2006 specifically invoked her right to equal treatment under the Directive and that was in our view sufficient to put in issue all relevant aspects of whether its requirements had been given effect in her existing award: to take a narrower view would not observe the principle of effectiveness in relation to her Community law rights.

  36. There is no separate claim machinery under the Directive, and any "claim" (in the broad sense, of an assertion of the right and an application for payment) to increased or additional benefit by virtue of its direct effect (a) must be made within the framework of the national rules for claiming social security benefits and applying for existing awards of such benefits to be altered; and (b) is subject to the same general time limits and restrictions on such claims and applications as any other.

  37. The principle of Steenhorst-Neerings and Johnson (No. 2), referred to in paragraph 34 of our decision in CP 2862/07, applies in our judgment with equal force to the national procedural provisions here in point as summarised above. Specifically, we hold that the rule of finality in section 17 of the 1998 Act is consistent with the Directive, as the principle of legal certainty is one fundamental to the Community legal order; and although the time limits and restrictions on the reopening of existing awards are different from those expressly approved in relation to original claims in Johnson (No. 2), we find no material difference in the principle and hold that the Directive does not preclude them.

  38. We reject the arguments for the claimant that in view of her earlier attempts at claiming from the age of 60 an entitlement to pension from that date should be created for her outside the normal rules. Insofar as any reliance on the doctrine of estoppel was pursued it was hopeless, it being well established that the doctrine 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. We specifically reject the surprising suggestion of a near-conspiracy to prevent transsexuals pursuing claims, and the criticisms of the conduct of the Secretary of State as "unconscionable" so as to require any national procedural limits or rules to be disregarded on the authority of Emmott as explained in Walker-Fox, referred to in CP 2862/07 paragraphs 34-35. Even attributing the letters and responses noted above to the Secretary of State rather than the Inland Revenue which wrote them, they did no more than explain (in accurate and reasonable terms) the position as it then stood in United Kingdom law, and came nowhere near bringing this case within the exceptional category of "unconscionable conduct", for the same reasons as we give in CP 2862/07 paragraph 35.

  39. There was in our judgment no valid way in which the claimant's application of 4 July 2006 could have been treated as a separate additional claim in its own right, under the Directive or otherwise, for the category A retirement pension she had already duly claimed and been awarded for life in 2005; and if, as was stated in the Secretary of State's submissions and assumed throughout argument, the claimant's letter was treated solely in that way despite the terms of the actual decision quoted at paragraph 13 above, that was in our view a further error. There is no scope in the national procedure for the making of a fresh or separate claim for a category A retirement pension already duly claimed, awarded and currently in payment, and there are good reasons why that should be so. Unlike some other benefits which may be claimed and awarded more than once for different or repeated periods while specified qualifying conditions are met, such a pension is a single benefit which must (with immaterial exceptions) be claimed and awarded once and for all, for life, from a single specified starting date which itself governs the rate at which the pension continues to be payable throughout its duration. Any later application for such a pension to be paid instead from a different starting date therefore necessarily involves reopening the whole basis of the existing award, rather than adjudicating on the application as if it were a fresh claim on its own.

  40. It follows that the only relevant way in which the application of 4 July 2006 fell to be considered, and should have been considered, was as one for the claimant's existing award of category A retirement pension to be corrected so as to give effect to her equal treatment rights under the Directive, subject to the same limits and restrictions as any other application to alter the date or amount of an existing pension award which has otherwise become final.

  41. The powers of alteration (and the only relevant powers) that required considering were those noted above, of revising the existing award under section 9 of the 1998 Act or superseding it with another decision under section 10; and the reason the exercise of those powers required to be considered in relation to the existing award made on 13 April 2005 was that it had since been shown to be erroneous in law.

  42. That was shown by the decision in Richards that a transsexual was entitled to equal treatment with other women in relation to retirement pensions; and for the reasons explained in CP 2862/07 this had the consequence that a person in the position of the claimant had, under the principle of direct effect and even before the Gender Recognition Act, an increased underlying entitlement in respect of the period since she first qualified for such equal treatment under the Directive, which that award had not recognised.

  43. As was correctly submitted by Mr Heath on behalf of the Secretary of State the failure of the award decision to give effect to the entitlement thus shown by Richards to have existed invokes the powers of correction for error of law, rather than those for change of circumstances, because of the principle that judicial interpretation of existing legislation is declaratory. It reveals the meaning that always ought to have been applied, and as noted elsewhere there was no temporal limit on the effect of the decision in Richards, so that principle applies here without qualification.

  44. We accept the Secretary of State's further submission that the error thus identified falls outside the definition of "official error" quoted in paragraph 23 above, because it was only shown to have been an error of law by the interpretation declared by the ECJ in Richards. Whether the decision that "showed" it to be so for this purpose was the ruling of the ECJ itself, or the subsequent one of the Commissioner implementing it, is immaterial in this case: the consequence either way must be that there was no power to revise the awarding decision so as to correct it back to its original date.

  45. Accordingly the only relevant corrective power to be exercised in response to the claimant's application of 4 July 2006 was that under section 10 and regulation 6(2)(b) cited above, to supersede the current pension award with effect from the date of the application itself on 4 July 2006.

  46. As already noted we do not accept the Secretary of State's argument that the correctness of the rate of pension under that award, and in particular whether it should incude the increases for "deferment" automatically applicable to any pension whose actual starting date is later than the earliest it could have been validly claimed, were outside the scope of the application and thus of this appeal. Contrary to what was suggested such increases are not a separate benefit requiring to be separately claimed before they have to be considered, but an integral part of the calculation of the correct rate of the pension, and that became a necessary issue on the application of 4 July 2006 so as to ensure the claimant's rights under the Directive were given proper effect.

  47. As indicated in paragraph 43 of our decision in CP 2862/07, the principle of equal treatment of a male-to-female transsexual under the Directive requires that she be accorded the same percentage increases in pension for deferment as a non-transsexual woman, for a period of deferment beginning with when the claimant first qualified for such equal treatment as a woman (or attained the age of 60 if later) and ending with the actual starting date of her pension. It follows that a person in the present claimant's position is entitled by the Directive to have her pension made up to the level required for equal treatment, calculated in the way just indicated, to the extent that the national law falls short of providing it; and self-evidently, the provision in paragraph 10 of Schedule 5 to the Gender Recognition Act noted above falls short of doing so in this case.

  50. For this purpose we confirm that for the reasons given in case CP 2862/07 any question whether a person has become entitled to the benefit of equal treatment under the Directive in their acquired gender is to be determined by applying the same tests as in the Gender Recognition Act, even as regards periods before it came into force. We approve and follow the decision of the Commissioner in case CP 3485/03 to the same effect.

  51. We are satisfied from the undisputed facts and evidence noted above that the claimant in this case had clearly met all the relevant conditions for having her change of gender recognised, but for the lack of a legal mechanism to recognise it, well before she attained the age of 60. On that basis the corrective award of her pension from 4 July 2006 must include the appropriate percentage increase for a full five years' deferment of pension by a woman from her 60th birthday until the actual starting date of 20 June 2005; (subject, if her pension includes any additional earnings-related element derived from contributions or earnings after the age of 60, to the qualification explained in paragraph 51(5) of our accompanying decision in case CP 1425/07, to avoid double counting).

  52. For those reasons we allow the appeal, set aside the decision of the tribunal and substitute our own decision in the terms set out above.

    53. (Signed)
    D J May QC
    P L Howell QC
    E A Jupp
    Commissioners
    13 March 2008

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