A court has been informed that a pair of pensioners contesting the UK Government’s choice to decrease the winter fuel payment would not have qualified for it since they reside in Scotland. Florence and Peter Fanning, from Coatbridge, North Lanarkshire, are being represented by Joanna Cherry KC, a former SNP MP, and Govan Law Centre at the Court of Session in Edinburgh.
They are attempting to reverse Chancellor Rachel Reeves’ decision, made on July 29, 2024, to remove the universality of the payment. However, the court was informed that as of April 2024, the allowance was no longer provided to Scottish pensioners and was substituted with a devolved benefit.
According to Attorney General Andrew Webster KC, who represents the UK Government, the Chancellor’s decision would not have impacted the Fannings due to devolution. James Mure KC is representing the Scottish Government in the case.
In a prior hearing, Ms Cherry endeavoured to present it as a human rights case under Article 8 and Article 2 of the European Convention on Human Rights, in addition to an irrationality challenge, but both governments dismissed this. Ms Cherry notified the court on Friday that the Fannings have a combined monthly household income of £2,065, stating that no « statutory » consultation concerning the Equality Act 2010 had taken place.
Ms Cherry remarked: « The petitioners raised the petition within the policy decision to revoke the winter fuel payments, made on a Great Britain-wide basis, when the Chancellor announced the policy was to be cut. Both respondents have failed to comply with a statutory duty with the Equality Act before making a decision to cut the winter fuel payment.
« The first respondent’s decision to cut the winter fuel payment was based on a Great Britain-wide statistical basis. The first respondent made the decision to cut the winter fuel payment, which resulted in the decision to cut winter fuel payments in Scotland. »
Mr Webster argued that the case revolves around a « decision taken in England and Wales regarding benefits, that the petitioners have no entitlement to, » and he suggested that the pensioners should cover the legal costs. He elaborated: « The challenge presented is whether the state complied with the Equality Act. Material was presented by the Secretary of State on this issue.
« We have identified three further documents which post-date the policy but which were presented to the minister before. What the respondents say is that at the time, the petitioners didn’t have any entitlement – back in April it was devolved responsibility passed to the Scottish Parliament and Scottish ministers. Whether they get anything from the Scottish Government in payments relating to heating in winter is for the Scottish Government. »
Mr Webster argued there is « no proper basis » to proceed with the petition for winter fuel payments, stating: « It’s for each devolved administration to develop its own policies. The petitioners pursued a petition saying they were entitled to winter fuel payments, which they ceased to be entitled to in April. »
Mr Mure highlighted that the state has limited resources and is not legally obligated to maintain winter fuel payments at a specific level for any group. He mentioned that proposed changes regarding « irrationality » and the European Convention of Human Rights Articles 2 and 8 would significantly « alter » the case.
Mr Mure further explained: « When it comes to social welfare payments, there is a very large margin for the state. The two new grounds would realistically alter the petition from the procedural aspect. »
Ms Cherry defended the petitioners, emphasising their financial vulnerability as pensioners with modest incomes and arguing that they should not suffer due to delayed senior counsel input caused by legal aid. She detailed Mr Fanning’s income from his state and work pensions, while his wife only receives the state pension, totalling £2,365 per month.
Ms Cherry contended: « The petitioners have been put in this position by the actions of a government. »
Judge Lady Hood concluded that the petitioners should bear the costs of amendment, stating: « I’m persuaded that the petitioners should be found liable for the costs of amendment. I would find the petitioners liable for expenses but that liability is as an assisted person. »
The subsequent hearing is scheduled to take place at the Court of Session in March.
