A judicial review against the Winter Fuel Payment cut was mounted at the Court of Session in Scotland by Govan Law Centre (GLC) on behalf of a pensioner couple living in Scotland last year
A major legal fight which is challenging the Winter Fuel Payment cuts for millions of pensioners is being heard in court this week.
A judicial review was mounted at the Court of Session in Scotland by Govan Law Centre (GLC) on behalf of a pensioner couple living in Scotland last year. A judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.
The couple – called Peter and Florence Fanning from Coatbridge in North Lanarkshire – lost their entitlement to last year’s Winter Fuel Payment after the changes announced in July. In an update, the case is being again in the Court of Session in Edinburgh on Thursday, March 13 and Friday, March 14, after being first heard in January. The goal of the claim is to overturn Chancellor Rachel Reeves’s controversial decision to revoke the universality of Winter Fuel Payments for older people.
Last year, the Chancellor announced that only pensioners claiming Pension Credit or another means-tested benefit would receive the £300 support payment over winter. Originally, it was all Brits over the state pension age of 66. The move saw over nine million pensioners in the UK lose the extra cash – including Peter and Florence.
The couple have a household income of £2,365 a month and argue that the Department for Work and Pensions (DWP) cuts represent a wider failure to address the needs of older people, who rely on these payments to maintain warmth and adequate living conditions during winter.
73-year-old Peter told STV News last year that he was anaemic and had heart problems, which were severely impacted by the cold. He explained: “My blood doesn’t circulate right, and I don’t make red blood cells, so I do get cold very easily, and in the winter, it’s more so. So if I don’t heat my house I have to put on my bed socks, put the hot water bottle in and go to my bed. I don’t think that’s a good quality of life for anybody.”
Speaking at a press conference at the launch of the challenge in September, Peter 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.”
Former SNP MP Joanna Cherry KC, is representing the couple, and the legal firm’s central argument in the case is that the government “failed” to comply with its legal duty when making changes to Winter Fuel Payment eligibility under the Equality Act 2010. This law requires public bodies – including lawmakers – to consider how their decisions and actions will affect people with different “protected characteristics” – this includes age and disability.
Specifically, GLC says that the government did not carry out a detailed equality impact assessment for the decision and that it “failed” in its legal duty to consult people affected by the changes beforehand. However, in response to a Freedom of Information (FOI) request, the government confirmed that the DWP did conduct a “High-Level Equality Analysis” before the move, with the government arguing that a full study was not required.
However, the law firm representing the Scottish couple says that the analysis is “inadequate” as there was no “proper assessment” of the risks of cutting the payments or the impact those losing them would face, including what it means for their health and well-being this winter.
The former MP told the court on Thursday her clients are “elderly pensioners” and that both have disabilities. She said: “Like most pensioners, they live on a fixed income, and they struggle to afford to heat their homes in the winter.They are exactly the sort of people who the winter fuel payment was designed to help.” Alongside this, Cherry told the court that due to last year’s change, her clients had “lost their entitlement to the benefit which would have been paid in Scotland this year”.
She said the decision may be “unlawful for reasons of irrationality and unreasonableness” because the UK Government knew it would cause “significant excess winter deaths” and jeopardise the health of “vulnerable pensioners.” She added that the decision was also made with the knowledge that it would result in 100,000 pensioners falling into relative poverty and 50,000 into absolute poverty.
Cherry added that the UK Government’s decision therefore had a “direct effect” on the Scottish Government, stating that “but for” this decision, the Scottish Government would have continued to offer a universal benefit this year. However, she went on, this did not “absolve” the Scottish Government of its obligations, explaining: “Financial constraints are no excuse for failing to properly comply with the public sector equality duty.”
The upcoming court decision promises to be pivotal in determining the future of the move. If the case is successful and the court finds that the government didn’t fulfil its duties under the Equality Act or didn’t follow procedures, then the move could be considered unlawful.
This could see the court potentially order the government to do a full impact assessment which would shift the eligibility criteria before they were changed. It could then reinstate the Winter Fuel Payment to millions of pensioners across the UK. However, this is not a guarantee, and the case has only just begun, although GLC says it’s seeking to fast-track proceedings.
Separately, the Unite union has also launched a legal challenge against the Government to try to reverse the cuts. In January, the Union revealed that pensioners missed meals, had to shelter in libraries and were more depressed due to the government’s cuts. Research conducted by Unite- found that over two-thirds of its retired members have had to turn their heating down this winter, a third were taking fewer baths or showers and 16% had to cut back on hot meals due to the increased costs of trying to stay warm.
Unite also called on the government to release the statistics for excessive deaths due to cold. Unite general secretary Sharon Graham said: “Our survey shows that pensioners are suffering real-life effects of this needless cut to winter fuel allowance. They are shivering at home, having to go without bathing or without meals. Retirees should be able to live with dignity after a lifetime of work. Instead of picking the pocket of pensioners, the government should be looking at a wealth tax that targets the very richest in society.”