Politicians who means-tested winter fuel payments were responsible for “an abject failure” to follow the law on how to make policy decisions affecting vulnerable pensioners, a court has heard.
Advocate Joanna Cherry KC told judge Lady Hood that UK and Scottish ministers acted unlawfully in their decision to stop the universal benefit for OAPs.
Cherry, a former SNP MP, is representing pensioners Peter and Flo Fanning, of Coatbridge, in a case at the Court of Session brought by the couple.
The pair claim both the Westminster and Holyrood administrations failed to follow legal guidelines in how they decided to stop the benefit from being a universal payment and make it means-tested.
Lawyers for the Fannings claim that both governments failed to adequately consult pensioners affected by the move. They also say that politicians failed to release an equality impact assessment- a requirement placed upon them by legislation – on the changes.
They also claim the decision to end the £300 benefit for thousands of pensioners across the country last year was “irrational” and breached their human rights.
Mr and Mrs Fanning have raised an action at Scotland’s highest civil court against both the British and Scottish governments.
On Thursday, Cherry referred to similar cases which had been brought before the courts. She said that evidence available in the current proceedings showed that ministers hadn’t followed principals established in the cases.
Speaking about the evidence in the case, Cherry said that Scottish Ministers had assessed the impact of a policy which it wanted to introduce that wasn’t means-tested. She said the Holyrood administration hadn’t carried out an assessment of the impact of a means-tested benefit.
Cherry said this was unlawful. She added: “They do not demonstrate to the court any focused regard being given to the potentially very grave impact upon vulnerable pensioners in the position of the petitioners who possess both the protected characteristics of age and of disability.
“There was no consultation. In relation to the first respondent (UK Government), no consultation whatsoever was carried out, so there was no evidence other than from the census.
“Again, in relation to the second respondent (Scottish Government), there was a consultation which had taken place at the start of last year, but that was in relation to a like-for-like replacement. No further consultation and no further evidence was then gathered in relation to means test the winter pension age heating payment.”
Cherry also said that the actions of politicians were similar to another legal action settled by the courts “in terms of an abject failure to discharge the public sector equality duty in relation to the decision to cut the winter fuel payment and the regulations needed to carry that payment through.”
Cherry was addressing the court on the first day of a judicial review which has been brought by the couple.
They are hoping that Lady Hood will uphold the arguments made by Cherry and declare the means-tested policy to be unlawful and for it to be quashed.
Mr Fanning, 73, receives a state pension and work pension, while Mrs Fanning, 72, receives the state pension.
They do not meet the criteria to qualify for pension credit and decided to take action in a bid to see the benefit restored for all pensioners in its universal for.
The couple both suffer from medical conditions that are made worse by the cold. During the winter, they have to use their household heating daily.
The couple are concerned that they will be unable to heat their home during the winter without the benefit. They are worried about the effect of losing the benefit on their finances and their health.
The petitioners argue that vulnerable elderly people on low incomes will now lose the benefit. The couple claim this will worsen their health, and some will die as a direct result of the decision to means-test the benefit.
Before proceedings began on Thursday, Mr Fanning said he was going to court to “give a voice” to other pensioners.
He said the idea for the legal challenge had come about following a discussion with his friends in the pub.
The late former first minister and leader of the Alba Party Alex Salmond supported their bid in the months before he died.
Mr Fanning, who is a member of the Alba party, said the speed of the decision to means-test the benefit meant it was rolled out “without much warning.”
He told BBC Scotland News: “It’s not about politics; it’s about the people who don’t have that voice.
About ten million pensioners in England and Wales lost their allowance under new measures announced by chancellor Rachel Reeves in July last year.
Those on pension credit or certain other means-tested benefits retained the annual payments, worth between £100 and £300.
In Scotland, the payment was devolved to Holyrood in April 2024, but the Scottish government followed the actions of their counterparts in Westminster in terminating it in August 2024, arguing £160m had been taken from its budget.
A new alternative called the Pension Age Winter Heating Payment (PAWHP), was due to be introduced the following month, but that has since been pushed back to winter 2025.
It will also be means-tested, despite ministers claiming it would not be.
On Thursday, Ms Cherry also said that ministers involved in the policy decision failed to consider any measures to mitigate any harm caused to claimants of the benefit. She told the court that ministers were obliged to do this by the terms of the 2010 act.
She added: “We say there was insufficient information for the minister to make that decision, and there’s no evidence to suggest the minister went through the correct steps.
“In my submission, the first respondent failed to undertake any risk assessment of how the disadvantages suffered by vulnerable and disabled pensioners could be mitigated or removed in accordance.. with the 2010 act.”
The hearing continues.
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