Martin Lewis shares key update on Winter Fuel Payment legal challenge

Peter and Florence Fanning, from Coatbridge, have raised proceedings with the help of the Govan Law Centre against the Scottish Government and the UK Work and Pensions Secretary over the policy.

Following Labour’s election win, Chancellor Rachel Reeves announced the Winter Fuel Payment – which had previously been universal – will only be available to those on Pension Credit or other means-tested benefits this year.

The decision led to the Scottish Government – which was due to take control over a similar payment through the devolved Social Security Scotland but has since announced a delay – to follow suit.

The Fannings are in receipt of the state pension and a modest occupational pension, but will now be ineligible for the Winter Fuel Payment they have been used to receiving.

The case asks the court to rule on whether the decision was unlawful, which would then allow the petitioners to ask the court to, in effect, set aside the policy and restore the Winter Fuel Payment to all.

Former first minister Alex Salmond has offered his support to the Fannings and directed them to Govan Law Centre.

Decision could affect whole of UK

MoneySavingExpert’s explainer highlights that while the case is being raised in Scotland, its outcome could also apply in England, Wales and Northern Ireland, as the court could strike down the UK-wide regulations which brought the changes into force.

The piece explains that under the Equality Act 2010, public bodies – including lawmakers – have a duty to consider how their decisions and actions will affect people with different “protected characteristics”, which include age and disability.

(Image: PA)

Govan Law Centre's central argument is that the governments failed to comply with this duty when enacting the changes to Winter Fuel Payment eligibility.  Specifically, Govan Law Centre says that the governments did not carry out a detailed equality impact assessment as required.

In response to a recent freedom of information request, the Department for Work and Pensions published a “High Level Equality Analysis” on the change, and stated: "The Government has followed its legal and statutory duties ahead of introducing these changes and will continue to do so."

However, Govan Law Centre claims that the published analysis is inadequate and does not meet the requirements of the Equality Act, as there was no "proper assessment" of the risks of restricting the payments, or of the extent of the adverse impact on those who will lose them, including what it means for their health and wellbeing this winter.

Solicitors are also arguing that the Government had a legal duty to consult people of state pension age about the changes but failed to do so.

The judicial review now requires a judge’s approval to move to a hearing on the merits.

What happens if the case is successful

MoneySavingExpert has explained that if the court finds that the governments didn't fulfil their duties under the Equality Act 2010, or didn’t follow procedural fairness by failing to consult pensioners, then this would render the decision to restrict the payments as unlawful.

The Court could then void the regulations which brought the changes into effect and order the governments to do a full impact assessment. This would take us back to the position we would have been in before the policy was announced.

The governments could take the judgment away and make the same decision again having done the correct impact assessment, but it's thought it would not have enough time to do this before the payments are due to be made in November and December, which would mean reinstating the payments for all pensioners this winter.

Check if you are eligible for Pension Credit

With the new changes, it is more important than ever to check if you are eligible for Pension Credit. More than 800,000 people who are eligible don't currently get it.

You can use the MoneySavingExpert tool to check what you could be claiming here.