Pensioners in legal action against governments over winter fuel payment cut

Peter and Florence Fanning, of Coatbridge, North Lanarkshire, have raised proceedings against the Scottish and UK ministers.

The case was filed this week (PA) (PA Archive)

Two pensioners are seeking to take the Scottish and UK governments to court over the cut to the winter fuel payment.

Peter and Florence Fanning, of Coatbridge, North Lanarkshire, have raised proceedings with the help of the Govan Law Centre against the Scottish Government and the UK Work and Pensions Secretary over the policy.

Following Labour’s election win, Chancellor Rachel Reeves announced the winter fuel payment – which had previously been universal – will only be available to those on pension credit or other means-tested benefits this year due to financial woes.

The decision led to the Scottish Government – which was due to take control over a similar payment through the devolved Social Security Scotland but has since announced a delay – to follow suit.

My work as a trade unionist and shop steward has taught me that some battles are worth fighting regardless of the outcome - I believe this is one such battle

Peter Fanning

The judicial review – which has been raised at the Court of Session – now requires a judge’s approval to move to a hearing on the merits, with the Govan Law Centre seeking to expedite both the case and its application for legal aid to ensure a decision can be handed down before the winter.

The case asks the court to rule on whether the decision was unlawful, which would then allow the petitioners to ask the court to, in effect, set aside the policy and restore the winter fuel payment to all.

Speaking at a press conference in Edinburgh on Thursday, Mr Fanning, 73, said: “We intend to sue both the London and Scottish governments, since both are guilty through action and inaction, of damaging the welfare of pensioners.

“We are hoping to be successful, given the manifest injustice involved, however, my work as a trade unionist and shop steward has taught me that some battles are worth fighting regardless of the outcome – I believe this is one such battle.”

The case’s argument rests on the accusation both governments failed to adequately consult with those of pension age on the change and did not release an equality impact assessment on the changes.

A freedom of information request revealed an abridged version of such an assessment had been carried out by the Department for Work and Pensions (DWP), with the UK Government arguing a full study was not required.

Former first minister and current Alba Party leader Alex Salmond was instrumental in putting the Fannings in touch with the Govan Law Centre ahead of the action being raised.

Speaking at the press conference on Thursday, Mr Salmond said every person in Scotland “should be grateful” to the Fannings for raising the action, which he said should have been taken forward by the Scottish Government in the first instance.

Pointing to analysis by the Labour Party in 2017 – which suggested 4,000 people could die if the winter fuel payment was cut – Mr Salmond claimed it would be “reprehensible” for the UK Government not to undertake an equality impact assessment because such a figure would be made public.

He added: “The Scottish Government, instead of meekly accepting this, should have challenged it.

“They should have stood up for pensioners and stood up for the people as opposed to meekly towing the line that was coming from Westminster.”

The former first minister added that while it would be “the most enormous humiliation” for the governments to lose the case: “I wonder is that as bad as the humiliation if the health service in Scotland and England can cope with the health impacts of what they’re doing?”

Rachel Moon, the instructing solicitor and a partner at Govan Law Centre, said: “Quite simply, (government) should have considered this rigorously.

“This policy and the decisions taken affect those with protected characteristics, including age and disability, and it affects 10 million people.”

Speaking to journalists in Holyrood on Thursday, First Minister John Swinney said: “Obviously I understand the depths of concerns from members of the public about the abrupt decision to remove £160 million from our budget and to take away the universal winter fuel heating payments.

“The hard reality that I have to face is that has been removed abruptly from our budget and we have to take action to live within the financial resources available to me.

“Because on the question of the law, I am bound by law to balance the budget and to live within the means available to the Government.”

Asked if the Scottish Government had failed in its legal duty, Mr Swinney said: “I think the Government has taken the action that has been necessary and appropriate, given our legal obligations, to live within our resources, but obviously these are issues that are now the subject of consideration by the courts and we will, of course, engage in that process.”

A spokeswoman for the UK Government said: “We are committed to supporting pensioners, with millions set to see their full new state pension rise by £1,700 this Parliament through our commitment to the triple lock.

“Given the dire state of the public finances we have inherited, it’s right we target support to those who need it most.

“Over a million pensioners will still receive the winter fuel payment, while many others will also benefit from the £150 warm home discount to help with their energy bills over winter.”