Benefits and pensions
Gender Recognition Bill [Lords]
10:30 am
Mr Tim Boswell (Daventry, Conservative)
This may be somewhat easier territory for the Committee. We have had a fairly full rehearsal of the possible implications on the benefits of third parties from changes in gender. I do not intend to repeat that, but I want to explain to the Under-Secretary of State for Work and Pensions, who I suspect will respond to this point, the intentions of the two amendments.
Amendment No. 27 would tack on a provision, which is meant to be a general rider to part 3 rather than part 2 of schedule 5, that any party, not necessarily a party to a marriage involving a transgendered person, should be able to take any problems with occupational pensions or benefits to a court if an individual has been granted a gender recognition certificate. I have not thought the amendment through fully and that is the reason for its general nature.
The amendment would apply to persons not necessarily involved in a marriage, but it would not reopen issues already discussed about persons who might lose their rights from a third party, typically the trustees of an occupational pensions scheme, because of the annulment of a marriage. We are talking about a situation in which the occupational pensions pot is fixed—typically that would be in payment, but it would provide for notional future payments—and an individual, whether a spouse or a dependant, feels that they may lose out under the provisions of the Bill.
I have no difficulty with clause 18, which covers the ability to go to court in relation to a will for an order where expectations have been defeated, and to say to the court, ''This is not fair to me and it wasn't envisaged at the time the will was produced.'' I have tried to adapt that thinking to a situation in which issues arising from an occupational pensions scheme might also affect a third party. The intention is not to put an additional obligation on the trustees of the pension fund, but to provide that if such a sum is available, it might be re-ordered between the parties to take account of the circumstances.
Amendment No. 20 refers to state benefits and includes some of the underlying thinking of the modest but entirely acceptable amendment No. 53 tabled by the hon. Members for Birmingham, Selly Oak (Lynne Jones) and for Oxford, West and Abingdon, which will be discussed separately. Under the general approach of the Bill, which is that if persons change gender, their rights and obligations under the benefits system change commensurably, there may be difficulties at particular points in the process. I have singled out two such difficulties and will deal first with the simpler issue of administrative costs.
If a long-awaited gender recognition certificate were granted to an individual, who was a woman in law, three weeks before her 65th birthday, she would have received a pension as a woman, would be disqualified when she became a man, and would lose her benefit. The period of time might be longer, but switching from one system of payment to another would be expensive. The Minister will probably remind the Committee that there are provisions under the Social Security Act 1998 for not bearing down on people or recovering sums that are disproportionate to the amount lost by the benefits system for paying benefits for another three weeks rather than changing the system because the individual had become a man and would be entitled to a pension in their own right. I would be grateful if the Minister could clarify that situation.
The second difficulty relates to the repayment of accrued benefit. It is evident from the Committee's sittings that most transgendered people are well aware of their situation and will have made inquiries before taking what is a radical step in their lives. However, there could be a situation of inadvertence in which the drafting of the Act might not be familiar to them, and they might not have realised that they stood to lose a significant amount of benefit. For example, they might not have notified the national insurance system and they might continue to receive the benefit, but when this measure becomes law, somebody might say, ''Well, we've now found out that you've become a man.'' One can imagine that one part of the benefit system might not catch up with the gender recognition side of it. It might not be clear on the form that one needs to declare it as a material change of circumstance. Somebody might be overpaid and that could give rise to considerable difficulties. I hope that the Minister will address that in the spirit in which it is offered.
There is another relevant point, regarding hardship. In another place, Ministers made it clear that the provisions on state benefits in schedule 5 were substantially about the difference between ''the pension'' for persons over 60, and that they reflect the historic anomaly in the system, which will be ironed out. The pension system will eventually be proximate for men and women over 60, but as we are not yet at that position, men over 60 are not entitled to their pensions. However, as Ministers said in another place, they are they are entitled to a minimum income
guarantee, so that there should be no hardship. Under the proposals, when someone changes gender, their obligations and rights in relation to the benefit system will change to those of their new gender. Within the clarity and coherence of those proposals, there could be hard cases, and our intention, with this amendment, is to enable Ministers to use an administrative solution to meet them in the least complicated way possible.
It would be helpful if Ministers could tell us that there will be no such problem because it will be picked up by the minimum income guarantee, or that it will be possible, on the administrative side, not to plough on if there is only a week or two to pay, or if there are some overpayments or arrears that there should not be. Will the Minister also respond to the point on occupational pensions?