Govan Law Centre has raised proceedings for judicial review in Scotland’s Supreme Court, the Court of Session in Edinburgh, on behalf of Peter and Florence Fanning, who are in receipt of the state pension and a modest occupational pension.
Although the case is being raised in Scotland, its outcome could also apply in England, Wales and Northern Ireland.
The move comes after the Scottish Government announced that it would be means-testing Winter Fuel Payments, replicating a similar decision by the UK Government.
The couple from North Lanarkshire will be ineligible for the Winter Fuel Payments following the policy decision.
The legal claim alleges the Government didn’t follow the correct procedure when making the changes. The case’s argument rests on the accusation that both Governments failed to adequately consult with those of pension age on the change and did not release an equality impact assessment on the changes.
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Under the Equality Act 2010, public bodies have a duty to consider how their decisions and actions will affect people with different ‘protected characteristics’, which include age and disability.
Govan Law will also argue, separately, that the Scottish Government failed to consult with people of state pension age about the changes.
The Department for Work and Pensions (DWP) published a High Level Equality Analysis on the shake-up, and maintains that it followed its “legal and statutory duties” ahead of scrapping the benefit for millions of households.
However, Govan Law claims that the published analysis is inadequate and does not meet the requirements of the Equality Act, as there was no “proper assessment” of the risks of restricting the payments, or of the extent of the adverse impact on those who will lose them, including what it means for their health and wellbeing this winter.
If the court finds that the Government didn’t fulfil its duties under the Equality Act 2010, or didn’t follow the correct procedure to consult pensioners, then this would render its decision “unlawful”. The court could then void the regulations that brought the changes into effect – which means the winter fuel allowance would be reinstated this winter – and order the Government to do a full impact assessment.
