Legal challenge mounted over winter fuel payment cut

It confirmed it is representing a couple from Coatbridge - Peter and Florence Fanning - who are in receipt of the state pension, but ineligible for the winter fuel payment (WFP) due means testing regulations.

Former first minister Alex Salmond has given his backing after proceedings for a judicial review were raised in the Court of Session.

Changes to eligibility were announced by the UK Government in August amid “difficult” financial decisions, and the Scottish Government confirmed it would means test the payment as a result earlier this month.

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What is the Winter Fuel Payment and why is it under threat? 

A sum of either £200 or £300 to help them with their heating bills over the winter, with the amount received dependent on their age and circumstances.

Only those in receipt of pension credit or other eligible benefits will be eligible, as a result of new plans.

The Department for Work and Pensions (DWP) suggests that around 10 million people in England and Wales will no longer receive the annual benefit, while around 900,000 Scots will lose out.

In a statement on behalf of its clients, the Govan Law Centre said the DWP Secretary of State Liz Kendall “failed” in carrying an equality impact assessment in accordance with her duties in the 2010 Equality Act.

The statement also said Ms Kendall separately failed to consult with those of pensionable age.

Speaking at a press conference in Edinburgh, Mr Fanning, 73, said: “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.”

Peter and Florence Fanning, from Coatbridge, who are looking to take the UK and Scottish Governments to court over winter fuel payment cuts. (Image: Craig Paton/PA) The statement said: “There is no proper assessment of the risk and extent of the adverse impact of the decision on those who will lose the WFP and what it means for their health and wellbeing this winter”.

There was also no assessment of how such a risk could be “eliminated or mitigated”, the statement said.

On potential remedial action, the leading law firm has said if the court finds the cut “unlawful”, the petitioners could invite the court to reduce the regulations – restoring the benefit for all those in receipt of the state pension.

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Poll: Pensioners to cut heating after winter payment change

Age Scotland: 'Brutal' winter ahead for Scots pensioners 

The Herald reported earlier this month that Mike Dailly, principal solicitor at the Govan Law Centre in Glasgow warned legal action could be mounted because of the failure to conduct a “proper process of evaluation”, adding a “equality impact assessment” has not taken place.

Former first minister Alex Salmond then told The Herald the Scottish Government should mount the challenge after the UK Government admitted the evaluation work did not take place.

Speaking during the press conference, Mr Salmond said every person in Scotland “should be grateful” to the Fanning's for raising the action, which he said should have been taken forward by the Scottish Government in the first instance.

He said it would be "reprehensible" if the UK Government did not conduct an equality impact assessment after 2017 analysis from Labour suggested around 4,000 people could die if the fuel payment was cut.

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, (government) should have considered this rigorously.

“This policy and the decisions taken affect those with protected characteristics, including age and disability, and it affects 10 million people.”

A Downing Street deputy spokeswoman said the 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.”

A UK Government spokeswoman 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.”

Speaking to journalists in Holyrood on Thursday, First Minister John Swinney said: “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.

“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.”

Asked if the Scottish Government had failed in its legal duty, Mr Swinney said: “I think the Government has taken the action that has been necessary and appropriate, given our legal obligations, to live within our resources, but obviously these are issues that are now the subject of consideration by the courts and we will, of course, engage in that process.”