Decision to cut winter fuel payment ‘complied with Equality Act’, court told

A decision to cut winter fuel payments for pensioners complied with the Equality Act 2010, the attorney general has told a court.

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

The change was announced by chancellor Rachel Reeves on July 29 and documents used in the run-up to the decision were read to the Court of Session by attorney general Andrew Webster KC, acting for the UK Government, known as the first respondent.

The Scottish Government, known as the second respondent, is represented by James Mure KC, while Mr and Mrs Fanning, known as the petitioners, are represented by Joanna Cherry KC.

On Friday morning, Ms Cherry said that documents had been provided late to the court by a senior civil servant for the UK Government, regarding the decision.

On Thursday, Ms Cherry said 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, and that 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.

However, Mr Webster said on Friday, “the reasons why the petitioners do not get pension age winter heating payment (PAWHD) is because they are just below the threshold” for the devolved Scottish benefit.

He said there is “no general common law duty to consult residents who may be affected by such a law”, the court heard.

Mr Webster said: “At all stages, pensioner poverty and the effect of pensioner poverty was being considered, and effects to mitigate were being put forward – what can be done to encourage take-up; to encourage those who aren’t claiming but who are entitled to get the benefit of winter fuel payment.”

He told the court that as of April 1, 2024, the Fannings would not have been entitled to a benefit from the UK Government, due to devolution, and said the Court of Session did not have “jurisdiction” to decide if laws made in England and Wales were unlawful.

Mr Webster said a deliverability assessment on July 20 “identified that the policy will have a higher proportion on couples; older pensioners will be less affected”, the court heard.

He said: “I say it’s been done with rigour; with an open mind, clearly considerations and possibility have been put forward and adopted, it is structured; it has looked at the details. It has been recorded, so it can be seen.

“One might identify ‘what if’ – what about pensioners in this circumstance? If that is the approach to be adopted by those doing equalities duties, they will be engaged in the internal quest.”

Mr Webster cited “engagement with Age UK and the Citizens Advice Bureau”, and said documents looked at “the impact of pensioners in poverty” and those just above the threshold who would experience “cash loss”, the court heard.

He added: “The Secretary of State makes a decision on background of being advised; here’s the Secretary of State being engaged before implementing the policy by putting forward regulations, regarding minimising equality issues; looking at details, a record of a robust and focused assessment.

“In my submission, the Equality Act has been complied with.”

Mr Webster said: “It’s nonsense to suggest that a Scottish court can declare law in England and Wales to be unlawful.”

He said equivalent proceedings in England “have a greater position than the petitioners here do. The court has the potential power to step in”.

The attorney general said the secretary of state “has no way of anticipating what second respondent will do in response to proposals which relate to England and Wales only”, and told the court he had “described it as crystal ball gazing”.

Mr Webster said: “It’s what the second respondent will do which has an impact for the petitioners.

“Why would the Secretary of State consult with petitioners, they’re not entitled to the benefit.”

Citing the Human Rights Act, Mr Webster said: “In my submission, neither petitioners are the victim of an act. The decision of the Secretary of State and the policy decision regarding winter fuel payment does not affect them.”

The hearing continues in front of Judge Lady Hood.