Ministers 'blinded' by financial imperatives in cutting winter fuel payment, argues former SNP MP Jo Cherry

The UK government was “blinded” by financial imperatives when it cut the winter fuel payment without due consideration of the 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 in North Lanarkshire, against last year’s decision to remove the universal element of the payment.

Pensioners Florence and Peter Fanning from Coatbridge challenge the decision to scrap the winter fuel payments for pensioners | Lisa Ferguson

The change was announced by Chancellor Rachel Reeves on July 29. Representing Mr and Mrs Fanning, Joanne Cherry KC told the court on Thursday her clients were “elderly pensioners” who 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.”

Ms Cherry put it to the court the decision to cut the payment had been “unlawful” on the grounds the UK and Scottish governments had failed in their duties to properly assess the impact on vulnerable people.

She said there had been an “abject failure” to carry out an equality impact assessment (EIA), as well as a failure to consult people of pension age who would be affected by the change.

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

Ms Cherry said 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.

Former SNP MP Joanna Cherry | Andy Buchanan/AFP via Getty Images

“The respondents did not approach the matter with due diligence, and did not give consideration to all competing interests,” she said. “They were blinded, perhaps one might say understandably, by financial imperatives.

“But that does not absolve them from their legal obligations, including their obligations under the Human Rights Act.”

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 involved 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. Ms Cherry also stressed the different roles each government played in removing the universal element of the benefit 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 per cent 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.”

Responding, the UK government’s representative Andrew Webster KC said he did not “shy away” from the fact there had been a “fiscal driver” for the change, noting the Chancellor had been seeking to fill a £22 billion black hole.

However he pointed out that as residents in Scotland, Mr and Mrs Fanning had “no entitlement” to the winter fuel payment, as this is only available to people in England and Wales. Scotland, he explained, has its own winter fuel benefit, called the Pension Age Winter Heating Payment (PAWHP).

He therefore questioned whether the pensioners can be said to have been “directly affected” by the UK government’s decision at all.

“Their entitlement, if any, to PAWHP is determined by the second respondent, choosing how they wish to spend the resources that they have available to them,” he said.

He said the only direct effect of the change was on the Scottish Government, and the Fannings therefore had no “direct interest” in relation to a decision taken in Westminster.

The hearing, which is expected to last two days, continues.