Couple lose legal challenge over cuts to winter fuel payment
The challenge was brought by Florence and Peter Fanning, from Coatbridge, who were being represented by former SNP MP Joanna Cherry and the Govan Law Centre.
They took their case to the Court of Session in Edinburgh in March, alleging that both governments failed to adequately consult with those of pension age and did not release an equality impact assessment on the changes.
In April 2024, the provision of a winter fuel-related payment was devolved to Scottish ministers who proposed a new benefit – the pension age winter heating payment (PAWHP) – causing an adjustment to the block grant funding provided to the Scottish Government by the UK Government.
Scottish ministers proposed the payment would be universal, and not means-tested.
After Labour swept to power at Westminster in July 2024, Chancellor Rachel Reeves announced the winter fuel payment would no longer be available to those not in receipt of pension credit or other means-tested benefits, resulting in a reduction to the block grant estimated to be around £160m.
The court heard Scottish ministers considered they had no option but to replicate the decision of the UK Government with regards to the PAWHP.
The Fannings, who received the WFP in 2023 but were not eligible for PAWHP in 2024, challenged both decisions, claiming neither government had considered the Equality Act 2010 and had both 'failed to consult' with pensioners.
They sought to quash the decisions of both governments, and sought a finding they both acted in a way which was 'irrational and unreasonable'.
On Friday, it was confirmed the pair had lost their legal battle following the decision of the Outer House of the Court of Session.
A spokesperson for Govan Law Centre said: 'While our clients have lost their case at first instance, we have no doubt that this litigation has been influential in securing the partial U-turn made by the Scottish Government last November and the major policy U-turn confirmed by the UK Government earlier this week.
'We hope the Scottish Government will now follow suit and restore the Scottish pension age winter heating payment in full for people such as our clients.
'It is important to appreciate that this challenge was always one of process; the speed of the decision and the fact that it was made allegedly without any equality impact assessment (see repeated public utterances by various UK Government ministers).
'Even had the petitioners won, the most the Court could have done would have been to order each Government to go back to the drawing board to reconsider the cuts made to the winter fuel payment, following the correct processes in law.
'The fact that they have already reconsidered, vindicates our clients' decision to bring this litigation.
'We are particularly pleased that the court found for the petitioners on the issue of standing against the UK Government and dismissed the argument that to enable the challenge to proceed against them was to ignore the existence of the devolution settlement.'
The court heard Scottish ministers considered they had no option but to replicate the decision of the UK Government with regards to PAWHP.
The Fannings, who received the WFP in 2023 but were not eligible for PAWHP in 2024, claimed neither government had considered the Equality Act 2010 and had both 'failed to consult' with pensioners.
They sought to quash the decisions of both governments, and sought a finding they both acted in a way which was 'irrational and unreasonable'.
The Fannings also sought a finding that both decisions were unlawful under the Human Rights Act 1998.
However, Judge Lady Hood rejected all six requests.
In her decision, published on Friday, Lady Hood found neither government had failed to exercise their duties under the Equality Act 2010, and neither government was under a duty to consult.
She also held the decisions were neither 'irrational nor unreasonable' and did not breach the Human Rights Act 1998, and she ruled they were 'in pursuit of a legitimate aim'.
In a written judgment, Lady Hood said: 'In this case, the decision which each respondent faced as to whether the payment of WFP, or PAWHP, should be made on a universal or means-tested basis fell within the field of socioeconomic policy.
'It was a policy decision involving questions of the allocation of resources, and practical and political assessments that this court would not be well-placed to judge.
'That the policy decisions could result in hardship for those falling on one side of a brightline rule is not enough to render it irrational in the legal sense.'
Lady Hood added: 'The petitioners asserted that elderly people suffering from disabilities rendering them vulnerable to cold temperatures constituted a group in our society which has suffered considerable discrimination in the past… However mere assertion is not enough to bring a group within that definition, and the petitioners did not sufficiently demonstrate to the court that this cohort of the population did do so.'
The petition was refused on all grounds.
Lady Hood's judgment concluded: 'I shall therefore repel the petitioners' first to eighth pleas‑in‑law, and refuse the petition.'
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