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Petition of Peter and Florence Fanning for Judicial Review of the decisions by the Secretary of State for Work and Pensions and the Scottish Ministers to cut the Winter Fuel Payment
Case: P867/24
Thursday, 13 March 2025
10:00 to 13:00 then 14:00 until conclusion
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Petition of Peter and Florence Fanning for Judicial Review of the decisions by the Secretary of State for Work and Pensions and the Scottish Ministers to cut the Winter Fuel Payment
P867/24
10:00 to 13:00 then 14:00 until conclusion
Lady Hood
This case is about the Winter Fuel Payment or “WFP”.
Until 2024, the WFP was provided to all pensioners via payments from the Social Fund. On 29 July 2024, the Chancellor of the Exchequer announced to Parliament that, from 2024 onwards, the WFP would only be provided to those pensioners who receive pension credit or certain other means-tested benefits. On 22 August 2024, the Chancellor’s decision was implemented when The Social Fund Winter Fuel Payment Regulations 2024 were laid before Parliament. The Scottish Government has provided devolved Scottish equivalent of the WFP, the Pension Age Winter Heating Payment or PAWHP from 1 April 2024. On 14 August 2024 the Scottish government announced that they would follow the UK government policy and means-test the PAWHP because (as a result of the UK government’s decision) it was no longer able to find the funding necessary to pay the PAWHP on a universal basis. As a result, many pensioners previously entitled to payments towards winter heating costs will no longer receive them.
Mr and Mrs Fanning, the petitioners in this action. are two such pensioners. They both suffer from medical conditions which are made worse by the cold. They have to use their household heating daily during the winter. They state that, without the WFP, they will be unable to heat their home during the winter. They are worried about the effect of losing the WFP on their finances and their health. The petitioners argue that vulnerable elderly people on low incomes will now lose the WFP. This will worsen their health and some will die as a direct result of the decision to means-test the WFP.
The first respondent in this action is the Advocate-General for Scotland, who advises the UK government on Scots law. The Advocate-General is sued as representative of the Secretary of State for Work and Pensions. The Secretary of State laid the 2024 Regulations before Parliament. The second respondent is the Scottish Ministers (the Scottish Government).
Mr and Mrs Fanning now petition the Court of Session to exercise its supervisory jurisdiction to review the lawfulness of the decisions of the UK and Scottish governments (judicial review). They ask the court to reduce (strike down) the UK and Scottish governments’ policy decisions, and the 2024 Regulations, as unlawful. Mr and Mrs Fanning advance three arguments in support of their petition:
First, section 149 of the Equality Act 2010 imposes a duty upon public authorities (such as the UK and Scottish governments) to advance equality of opportunity between those who share a “relevant protected characteristic”. This is known as the Public Sector Equality Duty. One “relevant protected characteristic” is age per s149(7). Mr and Mrs Fanning argue that neither government complied with this duty or carried out an equality impact assessment. Both governments had a further duty to consult with pensioners at common law and neither did.
Second, the decisions of both governments to means-test the WFP and PAWHP were irrational and Wednesbury unreasonable: Mr and Mrs Fanning say that the consequences of means-testing the WFP and PAWHP for vulnerable pensioners are so severe that the decision to do so is “so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question...could have arrived at it” (Lord Diplock, Council of Civil Service Unions v Minister for the Civil Service [1984] AC 374).
Third, the decisions of both governments were contrary to section 6 of the Human Rights Act 1998, because Mr and Mrs Fanning, and other pensioners in the same position, have rights under articles 2 and 8 of schedule 1 of the Human Rights Act 1998 to effective protection and mitigation from the adverse effects of winter temperatures.
For their part, both governments deny their decisions were unlawful. They argue that they complied with their Equality Act duties and that they had no duty to consult with pensioners at common law. The decisions to means-test the WFP and PAWHP are policy choices made by each government and it is not for the court to decide where scarce resources ought to be spent; the courts should not intervene in primarily political decisions. Finally, the petitioners’ reliance on the Human Rights Act 1998, and the rights in the European Convention on Human Rights incorporated into UK law by it, is wrong.
Finally, the UK government raises two further arguments of its own. First, it says that Mr and Mrs Fanning lack standing (the requirement to demonstrate a person is affected by a decision they wish to judicially review) to challenge the decision to means-test the WFP because the WFP is no longer provided in Scotland; rather winter heating payments are devolved to the Scottish government which pays the PAWHP. It is the PAWHP which Mr and Mrs Fanning will lose out on from 2024/25. The UK government argues that Mr and Mrs Fanning’s written case is irrelevant, because it does not explain why Scottish pensioners should be able to challenge decisions of the UK government relating to pensioners in England & Wales.
Second, Mr and Mrs Fanning, in their written case, quote various statements made in Parliament. The UK government argue that this could be a breach of Parliamentary privilege and these statements should be deleted from Mr and Mrs Fanning’s case.
The petition will be heard over two days on 13 and 14 March 2025 before Lady Hood.