An elderly Scottish couple are attempting to sue the Scottish and UK governments over the cut to the winter fuel payment for “damaging the welfare of pensioners”.
Following Labour’s election win, Rachel Reeves, the chancellor, announced that the winter fuel payment — which had previously been universal — would only be available to those on pension credit or other means-tested benefits this year due to financial woes.
Peter Fanning, 73, and his wife Florence, 72, who receive the state pension but are ineligible for pension credit, 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.
The couple, of Coatbridge, North Lanarkshire, claim that both administrations failed to carry out a proper equalities impact assessment as required by law before taking their decision. They say without such an assessment the risk, and extent of, the adverse impact on those who will lose the payment is unknown.
They also say that the UK government failed to consult properly with people of pensionable age.
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Mr Fanning, a former trade unionist, said he was suing the UK government and Scottish governments because “some battles are worth fighting regardless of the outcome”.
He said he had been “encouraged to pay into a pension fund to make my life better when I retire”, but was now being “punished” for doing that.
Speaking at a press conference in Edinburgh on Thursday, Mr Fanning said: “Florence and I feel strongly about the issue. We are of modest means and we will greatly miss the allowance. We are also aware that many others are worse off than ourselves. We are angry that pensioners should be the first recourse of cutbacks and outraged that the health of many people will be jeopardised by the withdrawal of this money and a further 10 per cent rise in energy bills this winter.”
He added: “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.”
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The case’s argument rests on the accusation that 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 that a full study was not required.
Alex Salmond, the former first minister and now leader of the Alba Party, was instrumental in putting the Fannings in touch with the Govan Law Centre ahead of the action being raised.
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 — 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.
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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.”
Rachel Moon, the instructing solicitor and a partner at Govan Law Centre, said: “Quite simply, [the government] should have considered this rigorously.
“This policy and the decisions taken affect those with protected characteristics, including age and disability, and it affects ten million people.”
John Swinney, the first minister, said on Thursday: “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.
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“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.”
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.”
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Q&A
What are the Fannings challenging?
The Coatbridge petitioners are mounting a legal challenge to the decisions by the UK government and the Scottish government to cut the entitlement of pensioners to the winter fuel payment.
What legal process are they seeking?
They are seeking a judicial review of the decision, a process whereby a judge can be asked to review a decision, policy or action of a public body or government.
Why is this case being pursued in the Court of Session in Edinburgh?
This is being held at the Court of Session as the petitioners live in Scotland.
What is required for the case to proceed to a substantive hearing?
The case requires permission from a Lord Ordinary to proceed to a substantive hearing on the merits of the case.
Who are the respondents in this case?
The two respondents in this case are the UK government, responsible for the decision to cut the entitlement to the winter fuel payment for more than ten million UK senior citizens who receive the state pension, and the Scottish government, which decided to pass that cut on to those of pensionable age in Scotland.
What is the case also dependent on?
The case going ahead is also dependent on a successful application for legal aid.
Who represents the petitioners, and what will they seek to expedite?
The Govan Law Centre, the lawyers representing the petitioners, will seek to expedite proceedings, namely the need for the petition to be heard before this winter.
What remedies are being sought by the petitioners?
If the court finds that the respondents either failed to discharge their statutory duties under the 2010 Equality Act and undertake an equality impact assessment (EQIA) in accordance with their 2010 Act duties, or failed to follow procedural fairness by a lack of any consultation, then this renders their decisions as unlawful. In that scenario, the petitioners would be entitled to invite the court to reduce the 2024 Regulations and the Scottish government’s decision to pass that cut on to those of pensionable age in Scotland. This would restore the petitioners’ entitlement to the winter fuel payment, and all those in receipt of the state pension in the UK.