Alex Salmond has stepped up his call for John Swinney to take the UK Government to court after it admitted it had not carried out a piece of work examining the detailed impact of pensioners on means testing winter fuel payments before the policy was announced by the Chancellor.

The former First Minister intervened after the Prime Minister said no such work had been undertaken.

Confusion surrounds what preparation work was carried out or not after comments by Sir Keir Starmer and Downing Street late on Thursday appeared to contradict the position taken by the Department for Work and Pensions (DWP) on Monday when it insisted an impact assessment had been done.

Downing Street's deputy spokeswoman said on Thursday the only assessment made before the policy announcement was a standard legal one of potential equalities impacts.

But asked to confirm that there had been no wider assessment to try to establish how many affected pensioners may face health vulnerabilities, and could thus be at risk, she said: “That’s right.”

The Herald asked whether an equality impact assessment was done after Scottish lawyer Mike Dailly doubted whether the research report had been thoroughly conducted given the Chancellor announced the policy at the end of July just weeks after coming into office after the general election on July 4.

The DWP believes that almost 10 million people in England and Wales will no longer receive the annual benefit - worth up to £300 - while in Scotland around 900,000 will lose out - as a result of means testing allowing only pensioners in receipt of pension credit or other eligible benefits to continue to receive the allowance.

The Scottish Government has said it was left with 'no choice' but to means test its devolved winter payment allowance after the UK Government's announcement left it with a funding cut of £160m.

"This is a significant political development with profound legal implications," Mr Salmond said responding to the PM's and spokeswoman's comments.

“This confirmation that the UK Government did not carry out an equality impact assessment as the law requires them to do means that it is almost certain that the UK Government has acted unlawfully in cutting the eligibility and scope of the winter fuel payment.

“This confirmation that the UK Government did not carry out the equality impact assessment under the Equality Act 2010 opens up a clear route for the Scottish Government, to defend Scots pensioners, by challenging the UK Government in the Scottish Courts. It is one that they must now take."

He added: "With 900,000 Scots pensioners set to lose up to £300 per year and hundreds of older Scots at risk of premature death this winter it is now vital that John Swinney instructs the Scottish Government to go to the Court of Session to seek a judicial review against the UK Government. Anything less will be a betrayal of Scots pensioners and a total abdication by the Scottish Government of its responsibilities.”

Mr Dailly, principal solicitor and solicitor advocate at the Govan Law Centre, in Glasgow last week 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, was not 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 last week.

"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."

Downing Street said on Thursday night that ministers did not carry out a specific impact assessment on the withdrawal of the winter fuel payment from the bulk of pensioners, such as the potential effect on illness and death rates among older people.

After days of No 10 refusing to comment, Keir Starmer’s deputy spokeswoman said the only assessment made before the policy announcement was a standard legal one of potential equalities impacts.

Asked to confirm that there had been no wider assessment to try to establish how many affected pensioners may face health vulnerabilities, and could thus be at risk, she said: “That’s right.”

Speaking later to reporters en route to Washington on Thursday, Mr Starmer confirmed this. 
Asked if an impact assessment had been done, he replied: “There isn’t a report on my desk.” The effects of the policy would, he added, be “mitigated” by other policies such as encouraging more eligible pensioners to claim the payment.

On Monday the DWP told The Herald an impact assessment had been carried out before the policy was announced

In background notes to a response from The Herald on Monday, the DWP stated: "It is incorrect to say no impact assessment was carried out for this policy." 

Labour research from 2017 claimed Tory plans to scrap the winter fuel payment for better-off pensioners could lead to almost 4,000 additional deaths over winter.

Scottish Social Justice Secretary Shirley-Anne Somerville said last week responding to Mr Salmond's earlier appeal.

 “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," she said.

"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.”