John Swinney has been urged to take the UK Government to court over the decision to means test winter fuel payments.

A leading lawyer believes a successful legal challenge could be mounted against the controversial policy change. 

Mike Dailly, principal solicitor and solicitor advocate at the Govan Law Centre, in Glasgow told The Herald the Scottish Government could lodge a judicial review amid concerns that a "proper process of evaluation and equality impact assessment has not taken place."

Elderly and disabled people have specific rights under UK equalities legislation and Mr Dailly fears that an assessment of how the policy change affects them, may not have been adequately undertaken before the decision was announced.

"There is at the very least a prima facie case for the Scottish Government to mount a legal challenge against the UK Government," Mr Dailly said.

"The speed of the announcement, a mere three weeks after coming into office, as well as the fact, that the Chancellor said that this was an emergency measure necessitated by the fiscal position which she inherited from the previous government, would both lead you to conclude that the proper process of evaluation and equality impact assessment has not taken place. 

"The lack of a thorough and detailed equality impact assessment would be a clear breach of the Equality Act 2010 and would call into question the legal validity of this announcement".

He added: "It is a matter of real concern that this decision has been announced with no prior warning. There was a reasonable expectation on the part of pensioners themselves, as well as the Scottish Government that this benefit would be paid this coming winter.

Senior lawyer Mike Dailly (Image: Martin Shields)

"In addition, it is unthinkable that any thorough equality impact assessment would not show firstly, that older people are at greater risk of health complications and death as a result of this decision and secondly that older disabled people and older people with underlying health conditions will see their health made worse, as a consequence of this benefit being withdrawn.

"It is therefore vital that we know, if the UK Government and its relevant departments have carried out an equality impact assessment and to publish in full the findings from any such assessment."

Chancellor Rachel Reeves announced on July 29 that winter fuel heating payments would be means tested.

Scottish Social Justice Secretary Shirley-Anne Somerville then confirmed in August that the new devolved pension age winter heating payment — set to replace winter fuel payments in Scotland — would also be restricted to those receiving pension credit, ending universal entitlement for 900,000 Scots pensioners.

Scottish ministers argued they had been left with no choice but to follow the UK Government's decision on means testing as the funding coming to the Scottish Government for the payments had now been cut by up to £160m.

An analysis by older people's charity Age Scotland last month estimated 270,000 Scots pensioners already living in energy poverty would be plunged into further misery by having their benefit scrapped.

Former First Minister Alex Salmond, who now leads the Alba Party, has called on Mr Swinney to mount a judicial review in the Court of Session.

His call has been supported by Age Scotland who are urging the First Minister to give the legal battle "serious consideration."

Mr Salmond told The Herald that the decision to means-test the winter fuel payment and the successor benefit "was a cruel blow to almost a million pensioners" in Scotland and could see some lose their lives.

Alba Party leader and former First Minister Alex Salmond (Image: Colin Mearns)

"This will not only see hundreds of thousands of pensioners who are already living in fuel poverty, deprived of a vital financial lifeline of up to £300 a year, it creates the very real prospect of more Scots pensioners dying this winter through excess winter deaths," he said.

"I am challenging the UK Government to confirm if they have carried out the equality impact assessment which the Equality Act 2010 requires them to do and I am pressing the Scottish Government to set out the steps which they have taken to have the UK Government reverse this decision.

"Following the legal advice received from Mike Dailly, one of Scotland’s most respected lawyers and a fearless campaigner for justice on behalf of people living in our most deprived communities, I am today calling on the Scottish Government to use its offices to seek a judicial review at the Court of Session against the UK Government’s decision to effectively end winter fuel payments for 900,000 Scots pensioners.

Alex Salmond wants the Scottish Government to lodge a judicial review at the Court of Session in Edinburgh, pictured above, to challenge the decision by the UK Government to means test winter fuel payments for pensioners. (Image: PA)

"This advice confirms that as well as there being an overwhelming moral case against this decision, given the potential threat to life, which it represents through an increase in excess winter deaths this winter, there is a ‘prima facie’ legal case which must now be tested."

Adam Stachura, Age Scotland’s policy director said: “The removal of this payment, which is an essential part of the state pension package, will have a devastating effect on the lives of hundreds of thousands of Scottish pensioners this winter.

"Not only is the line for means testing far too low that only 12% of pensioners will keep it, but as the decision was taken at breakneck speed it is almost impossible for older people to prepare for our cold Scottish winter without this crucial payment. 

“In almost every sense, it is poor policy making by the UK Government, and I’m sure most of the Labour Party agrees. We must not just throw our hands up and accept this is a done deal, though, but time is running out.

"The Scottish Government should leave no stone unturned in exploring how this decision could be reversed, and if legal experts feel there is a case for judicial review the First Minister should give this serious consideration.”

Mr Salmond's intervention follows a number of court actions brought by the Scottish Government.

The cases include a referral in 2022 to the Supreme Court as to whether a referendum on Scottish independence was within the legislative competence of the Scottish Parliament. The Supreme Court ruled it was not and was a matter reserved to the UK Parliament.

In 2023, the Scottish Government took the UK Government to court - lodging a judicial review at the Court of Session over the latter using a section 35 Order of the Scotland Act to block the Gender Recognition Reform Bill from becoming law. The Scottish Government lost the case.

But Mr Salmond argued the Scottish Government could be successful with a legal challenge to the UK Government on the means testing of winter fuel payments.

"Instead of pursuing a series of failed and discredited legal misadventures in the Scottish Courts, the Scottish Government should instead use the clear opportunity presented to at least try and stop this measure in its tracks by launching a legal challenge at the Court of Session," he said.

"In addition, I am seeking to work cross-party with politicians in both Holyrood and Westminster to place this decision at the very top of the political agenda and to amplify the public outcry and political pressure which is building against this decision.”

Age UK estimated in 2015 that the introduction of winter fuel payments prevented 12,000 excess winter deaths in the UK annually. 

Scottish Social Justice Secretary Shirley-Anne Somerville said: “The Scottish Government has been left with no choice but to follow the UK Government and restrict eligibility for pension age winter heating payment to older people who receive relevant eligible benefits such as pension credit.

"This is not a decision we wanted to take but was necessary, when faced with such a deep cut to our funding and in the most challenging financial circumstances since devolution.

“We are taking action to support older people and tackle poverty. This includes investment in our council tax reduction scheme and free bus travel for all older people over the age of 60 in Scotland.

"In addition, we are providing over £2 million from our equality and human rights fund, supporting older people’s organisations to deliver work focused on tackling inequality and enable older people to live independent and fulfilling lives.”

The UK Government pushed back against the claim that no impact assessment had been carried out.

A spokesperson said: “We are absolutely committed to supporting pensioners and giving them the dignity and security they deserve in retirement.

"That’s why through our commitment to protect the triple lock, over 12 million pensioners will see their State Pensions increase by almost a thousand pounds over the next five years.

“But given the dire state of the public finances we have inherited, it’s right that we target support to those who need it most while we take the difficult decisions needed to fix the foundations of our economy.

"Over a million pensioners will continue to receive the Winter Fuel Payment and eligible pensioners will also be able to benefit from the £150 Warm Home Discount scheme from October to help with their energy bills over winter.

“We are urging pensioners to come forward and check their eligibility for Pension Credit to ensure as many people in need as possible have access to this support.”

SNP MPs will vote against the mean testing of winter fuel payments when they are introduced by statutory instrument in the Commons next Tuesday.

A UK Government source said the new pension age winter heating payment is a devolved benefit and it was the Scottish Government's decision to follow the UK Government in deciding to means test it.