Commentary on Sections Section 13: Social security benefits and pensions
44.This brings Schedule 5 into effect.
45.Paragraphs 3 to 6 of Schedule 5 are designed to ensure that transsexual people are treated according to their acquired gender in so far as certain survivor’s benefits are concerned. The benefits in question are Widowed Mother’s Allowance, Widow’s Pension, Widowed Parent’s Allowance, Incapacity Benefit and Category A retirement pension.
46.Under Paragraph 3 where, immediately before a full certificate is issued, a female-to-male transsexual person with dependant children is, or but for the absence of a claim would be, entitled to Widowed Mother’s Allowance under section 37 of the 1992 Act (as defined in paragraph 2(1) ofSchedule 5), that person will not be entitled to that Allowance after the certificate is issued. The reason for this is that Widowed Mother’s Allowance is gender specific and it must therefore be brought to an end on legal recognition as a man. Widowed Parent’s Allowance will be available instead to such a person in accordance with the normal rules. Under sub-paragraph (2) ofparagraph 3 it will not be necessary to make a claim for Widowed Parent’s Allowance where the person is entitled to Widowed Mother’s Allowance immediately before the full certificate is issued.
47.Paragraph 4 ensures that where, immediately before a full certificate is issued, a female-to-male transsexual person is entitled to a Widow’s Pension under section 38 of the 1992 Act, that person will not be entitled to that Pension after the certificate is issued. Widow’s Pension is gender specific and must therefore also be brought to an end on legal recognition as a man.
48.Under paragraph 5 where, immediately before a full certificate is issued, a male-to-female transsexual person is, or but for the absence of a claim would be, entitled to Widowed Parent’s Allowance under section 39A of the 1992 Act, that person will continue to be eligible for that Allowance after the certificate is issued. Widowed Parent’s Allowance is gender neutral.
49.Paragraph 6 ensures that where, immediately before a full certificate is issued, a person is entitled to Incapacity Benefit, or a Category A retirement pension, under section 40 or 41 of the 1992 Act (which provisions are gender specific), that person will not be so entitled after the certificate is issued.
50.Paragraphs 7 to 12 deal with Retirement Pensions. At present, there are differences in the treatment of men and women for the purposes of Retirement Pensions. The main difference is that men reach pensionable age at 65, while women reach pensionable age at 60. These inequalities will begin to disappear from April 2010, but the equalisation process will not be complete until 2020.
51.Paragraph 7 relates to Category A pensions. Category A pensions are derived from the pensioner’s own National Insurance contributions. Sub-paragraph (1) sets out the general provision that any question as to current or future entitlement to a Category A pension after the full gender recognition certificate is issued shall be determined on the basis of the transsexual person’s new gender. That entitlement is to be calculated on the basis that the transsexual person’s gender had always been the acquired gender. This ensures that, for instance, a man who becomes a woman will be assessed using the working life appropriate to a woman.
52.Sub-paragraph (2) makes clear that where a woman who is in receipt of a Category A pension changes gender before the age of 65 (i.e. the age when men can get a Retirement Pension) then entitlement to that pension will cease (a new claim for a Category A pension can be made as a man at age 65).
53.Sub-paragraph (3) provides that where a man changes gender and at the time he is under 65, but has attained the age at which a woman reaches pensionable age, for the purpose of determining entitlement to a Category A pension, that person will be treated as attaining the pensionable age for a woman when the full gender recognition certificate is issued.
54.Sub-paragraph (4) makes an exception to sub-paragraph (1). It provides that in determining entitlement in accordance with sub-paragraph (1), any
55.Paragraph 8 deals with Category B pensions (and increases to Category A pensions resulting from entitlement to Category B pensions). Category B pensions are based on the contributions of a spouse or former spouse. At present married women, widows and widowers can derive entitlement to Category B pensions. From 2010 Category B pensions will become available to married men and in addition current differences in the rules for widows and widowers will be addressed. Currently sections 48A and 51A of the 1992 Act apply only to married women, section 48B applies only to widows and section 51 only to widowers. Sections 48BB and 52 apply equally to men and women.
56.Sub-paragraph (1) sets out the general provision that any question as to current or future entitlement to a Category B pension or an increase to a Category A pension shall be determined on the basis of the transsexual person’s acquired gender after the full gender recognition certificate is issued.
57.Sub-paragraph (2), in conjunction with sub-paragraph (1) provides that where a woman is entitled to a Category B pension or an increase in her Category A pension then, if she changes gender, she may lose it. This would happen where it would not be available to a man in the same circumstances. Examples of this occurring include where immediately before the full gender recognition certificate is issued:
58.Sub-paragraph (3) provides that where a man changes gender and at the time he is under 65, but has attained the age at which a woman reaches pensionable age, for the purpose of determining entitlement to a Category B pension, that person will be treated as attaining the pensionable age for a woman when the full gender recognition certificate is issued.
59.Sub-paragraph (4) provides that a man who changes gender cannot get a Category B pension on the grounds of having been widowed if he would not have been entitled to one as a widower under section 51 of the 1992 Act.
60.Paragraph 9 deals with shared additional pensions, which can derive from a pension sharing order granted when a marriage is dissolved.
61.Sub-paragraph (1) provides that any question relating to entitlement to, or the rate of, a shared additional pension shall be determined on the basis of the transsexual person attaining pensionable age on the same date as someone of the acquired gender and at the same age.
62.Sub-paragraph (2) makes clear that where a woman who is in receipt of a shared additional pension changes gender before the age of 65 then entitlement to that pension will cease (a new claim can be made as a man at age 65).
63.Sub-paragraph (3) provides that where a man changes gender and at the time he is under 65, but has attained the age at which a woman reaches pensionable age, for the purpose of determining entitlement to a shared additional pension, that person will be treated as attaining the pensionable age for a woman when the full gender recognition certificate is issued.
64.Paragraph 10 deals with deferment of Category A and B pensions and of shared additional pensions. Where a person defers claiming such a pension immediately on reaching pensionable age, he shall get an increase in the pension when it is claimed. This paragraph provides that for any period of deferral before a full gender recognition certificate is issued, the deferral for that period will only be effective if it could also have been made in the acquired gender.
65.Paragraph 11 relates to Category C pensions. These are payable to people who were over pensionable age on 5th July 1948 or their wives or widows (if they are over pensionable age). There are still some pensioners getting Category C pensions and for consistency paragraph 11 provides that if a Category C pension is in payment to a married woman or widow then this should be divested on a gender change (as the pension is not available in the same circumstances to men).
66.Paragraphs 12 and 13 deal with graduated retirement benefit. Employees could accrue entitlement to this benefit based on earnings between April 1961 and April 1975. There are different rules for men and women at present. These provisions enable amendments to be made to regulations to take account of a person changing gender.
67.Paragraph 14 sets out how entitlement to a Guaranteed Minimum Pension (“GMP”) under the Pension Schemes Act 1993 will be affected when a full gender recognition certificate is issued to a person. The Pension Schemes Act 1993 provides that pensionable age in respect of men is 65 and in respect of women is 60. This difference in pensionable age also affects the accrual rate of GMPs.
68.Sub-paragraph (1) states that for this paragraph “the 1993 Act” means the Pension Schemes Act 1993.
69.Sub-paragraph (2) provides that the amount of a person’s accrued GMP entitlement will continue to be determined by reference to the person’s birth gender. This is necessary because a person’s entitlement to a GMP, like scheme benefits, has already accrued in the past and it is a general principle of the Act that the issue of a full gender recognition certificate should not affect events that occurred before its issue. The exception to this is that any increases in the GMP derived from revaluation under section 16 of the 1993 Act will be calculated by reference to a person’s GMP pensionable age after the issuing of the full gender recognition certificate.
70.Sub-paragraph (3) provides that a woman’s entitlement to a GMP will cease if she changes gender and she is under 65. The person’s GMP pensionable age will become 65 and so entitlement to a GMP will commence again when they become 65. The anti-franking requirements set out in Chapter 3 of Part 4 of the Pension Schemes Act will also apply when the person becomes 65. Anti-franking applies where a person, with a contract of employment ending before 1st June 1985, left a pension scheme before pensionable age. It ensures that any indexation or revaluation of GMP does not erode scheme benefits. Instead, any increase is added to the total scheme benefits. Sub-paragraph (4) provides that where a person’s GMP ceases under paragraph (3) then any pension already paid is not to be affected. Where a woman had been entitled to a GMP but deferred payment of it then any increases to the GMP because of the deferral will be added to their GMP when they become 65.
71.Sub-paragraph (5) provides that where a man who is aged at least 60 but has not reached 65 changes gender then he will be treated as attaining GMP pensionable age when the full gender recognition certificate is issued.
72.Sub-paragraph (6) provides that where a person changes gender after the age of 65 then their pensionable age for GMP purposes is not affected. As a result such a person’s GMP will not be affected by their change of gender.
73.Sub-paragraph (7) makes provision for a person’s entitlement to a widow’s or widower’s GMP to continue following a change of gender. A widow’s or widower’s GMP will still only be payable to that person where the conditions regarding entitlement are satisfied.
74.Sub-paragraph (8) provides that where a person’s GMP has been secured by an insurance policy or annuity in accordance with section 19 of the Pension Schemes Act 1993, then the issuing of a full gender recognition certificate will not affect the terms of that insurance policy or annuity contract.
75.Paragraph 15 makes parallel provision in relation to the Pension Schemes (Northern Ireland) Act 1993 .
76.Paragraph 16 deals with Equivalent Pension Benefits. These accrued between 1961 and 1975, in place of Graduated Retirement Benefit, for those individuals who had private pensions. The legislation operates differently in respect of men and women. This provision enables modifications to be made to take account of a person’s change of gender. Paragraph 17 makes a parallel provision in respect of Equivalent Pension Benefits of Northern Ireland.