Pensioners who challenged winter fuel payment decision in court lose case
A pensioner couple have lost their legal challenge over government decisions to cut the winter fuel payment (WFP) and its Scottish equivalent.
Peter and Florence Fanning, from Coatbridge, North Lanarkshire, raised the petition in the Court of Session in Edinburgh following the announcement last July from Chancellor Rachel Reeves of plans to cut the allowance.
The couple lost their entitlement to the financial assistance and became worried about their ability to afford their heating bills. They brought the legal action with the help of ex-SNP MP Joanna Cherry KC, who represented them as senior counsel.
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, Ms Reeves announced the WFP 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 £160 million.
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'.
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 a U-turn earlier this week, the UK Government announced the vast majority of pensioners in England and Wales will again receive the winter fuel payment this winter, and the Scottish Government said it is 'working through the options' in the wake of that decision.
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 said: '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.'
She added that 'in the absence of any evidence of past widespread discrimination against elderly persons by the government having been put before the court by the petitioners, the categorisation could not be applied to elderly people as a cohort'.
The petition was refused on all grounds.
Lady Hood wrote: 'In respect of each of the respondents, the rules as to eligibility for payments of WFP and PAWHP were set out in terms of the legislation implementing the respective respondents' policy decisions.
'In these circumstances, and standing the decision reached above on the public sector equality duty and the issue of consultation, the schemes are in accordance with law.
'They are in pursuit of a legitimate aim.'
Lady Hood's judgment concluded: 'I shall therefore repel the petitioners' first to eighth pleas‑in‑law, and refuse the petition.'
The Govan Law Centre, which acted for the couple, said the pensioners should be 'commended for their courage in pursuing this litigation'.
A spokesperson added: 'While our clients have lost their case, we have no doubt that this 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 restore the pension age winter heating payment in full for people such as our clients.
'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. The fact they have already reconsidered vindicates our clients' decision to bring litigation.'
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