Scottish pensioners lose legal challenge to changes to Winter Fuel Payment eligibility

About this case:

• Citation:
  [2025] CSOH 50
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Hood

Petitioners Peter and Florence Fanning sought declarator that the Secretary of State for Work and Pensions had failed to exercise her duties under section 149 of the Equality Act 2010 before making the policy decision, and likewise the Scottish Ministers had failed to do so before making their decision with regard to the Pension Age Winter Heating Payment. Other grounds of challenge were made based on irrationality, Wednesbury unreasonableness, and Articles 2 and 8 ECHR.

The petition was considered by Lady Hood in the Outer House of the Court of Session. Cherry KC and Dailly, solicitor-advocate, appeared for the petitioners. The Work and Pensions Secretary was represented by Webster KC, Maciver, and Dewart, advocates, while the Scottish Ministers were represented by Mure KC and Welsh, advocate.

Essentially political decision

In autumn 2023, the second respondents undertook a consultation regarding a proposed new benefit to be known as Pension Age Winter Heating Payment. This was intended to be a universal, non-means-tested payment to be given to those in Scotland who were eligible for Winter Fuel Payment. However, the consultation expressly noted that PAWHP would be funded through adjustment to the Block Grant, with the consequence that any change to the eligibility criteria for WFP would result in a lower Block Grant Adjustment Transfer and consequent pressure for the second respondents.

On 29 July 2024, the Chancellor of the Exchequer announced that from winter 2024/25 onwards, WFP would only be available to those in receipt of Pension Credit or certain other means-tested benefits. Against this backdrop and facing a reduction of £147 million to the Block Grant Adjustment, the second respondents decided it was no longer affordable for PAWHP to be paid on a universal basis.

For the petitioners it was submitted that neither respondent had complied with the public sector equality duty under section 149 of the Act. While a comprehensive Equality Impact Assessment was not required here, the material produced by the first respondent was largely focused on financial savings rather than on mitigation of the impact on vulnerable groups. There was no credible evidence that the PSED had been complied with, nor had there been a consultation on the decision of either respondent.

For the first respondent it was submitted that the PSED did not prescribe how it was to have regard to certain factors when making decisions. There had been engagement with a means of ameliorating the consequences of the policy, with a revised High Level Equality Analysis prepared after the Chancellor’s announcement of July 2024.

The second respondents submitted that, properly analysed, the petitioners’ arguments concerned policy choices rather than law. They had failed to overcome the high hurdle for success in an irrationality challenge, and the courts should be slow to enter into the review of an essentially political decision.

Limited state resources

In her decision, Lady Hood said of the PSED: “In assessing whether the first respondent complied with the PSED, there is sufficient evidence available to the court as to the material which was before the first respondent (and thus the knowledge which she had) in taking the policy decision of 29 July 2024. It is clear from this material that the first respondent was aware of the PSED, and its application to the decision which she had to make: she was expressly told of its relevance by her officials, and a High Level Equality Analysis was prepared for her consideration.”

She continued: “It is plain that the second respondents’ officials had started compiling, analysing and sharing information on the possible impact of means-testing almost immediately after the first respondent’s policy decision of 29 July 2024 was made. When the material produced by the second respondents is considered in its entirety, it demonstrates due regard being had to the relevant matters in terms of the 2010 Act throughout the process of developing PAWHP, including the period before, and at the time of making, the policy decision of 14 August 2024. It also demonstrates that the PSED was complied with in substance, and with the necessary rigour.”

Considering the arguments on consultation, Lady Hood said: “In the whole circumstances, this was not a case where there was a legitimate expectation of consultation. Neither the first respondent nor the second respondents had made an express promise to consult. The information available as to past consultation exercises undertaken by the DWP is too limited for the court to be satisfied that there was an established practice of consultation before policy decisions such as the one which was taken by the first respondent on 29 July 2024.”

She added: “With regard to the second respondents, the fact that a consultation was carried out on the introduction of PAWHP in its originally intended form, is not in itself sufficient to constitute an established practice of consultation before a decision to revise the eligibility criteria for PAWHP.”

Lady Hood concluded: “Article 8 is not engaged by the facts of this case. Even had Article 8 been engaged, the respondents would not have been in breach. States are afforded a wide margin of appreciation in issues of general policy, including social, economic and healthcare policies – especially where it involves an assessment of priorities in the context of the allocation of limited state resources. Lord Reed’s warning [in R (SC) v Work and Pensions Secretary (2022)] that a high level of respect must be afforded to the judgment of public authorities on socio-economic issues in order to preserve the separation of powers is apposite.”

For these reasons, the petitioners’ pleas-in-law were repelled and the petition therefore refused.