Winter fuel payment cut ‘tainted’ by lack of impact assessment, court told

The decision to cut the winter fuel payment will be “tainted” if the UK Government is found not to have properly assessed its impact on vulnerable people, a court has heard.

The Court of Session in Edinburgh is hearing a legal challenge brought by Florence and Peter Fanning, from Coatbridge, North Lanarkshire, against last year’s decision to remove the universal element of the winter fuel payment.

The change was announced by Chancellor Rachel Reeves on July 29.

The pensioners are being represented by former SNP MP Joanna Cherry KC and Govan Law Centre.

Ms Cherry told the court on Thursday her clients are “elderly pensioners”, and that both have disabilities.

“Like most pensioners they live on a fixed income and they struggle to afford to heat their home in the winter,” she said.

“They are exactly the sort of people who the winter fuel payment was designed to help.”

She told the court that as a result of last year’s change, her clients had “lost their entitlement to the benefit which would have been paid in Scotland this year”.

She said there are a number of “issues” involved in the case.

These include, she said, whether the UK and Scottish governments failed to exercise their “duty” to carry out an equality impact assessment (EIA) of the decision, or to consult people of pension age who would be affected by it.

She also said the decision may be “unlawful for reasons of irrationality and unreasonableness”, because, she said, the UK Government knew it would cause “significant excess winter deaths” and jeopardise the health of “vulnerable pensioners”.

She added the decision was also taken in the knowledge it would result in 100,000 pensioners falling into relative poverty, and 50,000 into absolute poverty.

She told the court it could be in a breach of Section 6 of the Human Rights Act.

She said there had been an “abject failure” by both governments to discharge their obligations to assess the risk of adverse impacts of the decision on vulnerable people, or to consider how any such impacts could be mitigated.

She said the UK Government – referred to as the “first respondent” – was bound by its obligations under the 2010 Equalities Act, and the Scottish Government (the “second respondent”) had similar requirements under regulations dating from 2012.

“There’s overwhelming evidence in this case that the first respondent failed to properly carry out an EIA in relation to the policy decision, and failed to discharge its duty under section 149 of the 2010 Act,” she said.

“If that’s correct then the policy decision and the regulations are tainted by that failure.”

She said the Scottish Government also had an “additional duty” under Scottish regulations to “advance equality of opportunity” between those with protected characteristics and those without, which she said “had not happened here”.

Ms Cherry further said there was a “legitimate expectation” that both governments would carry out a consultation before making the change, due to both the importance of the issue and the fact it was usual “practice” to do so when taking decisions of this nature.

When asked by judge Lady Hood who should have been consulted, Ms Cherry replied a consultation would have applied to people of pensionable age throughout the UK.

“There were a very significant number of people impacted by this decision, and that’s why it saves so much money,” she said.

Both the UK and Scottish governments are being represented in court, and Ms Cherry also stressed the different roles each government played in removing the universal element of the winter fuel payment in Scotland.

She told the court the Scottish Government had been placed in a “dilemma” by the UK Government’s decision to cut the payment, as it resulted in an 80% cut to the funding it received for a universal winter fuel payment.

She said the UK Government’s decision had therefore had a “direct effect” on the Scottish Government, and that “but for” that decision, the Scottish Government would have continued to pay 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 hearing, which is expected to last two days, continues.