Peter John Fanning and Florence Agnes Fanning for Judicial Review of the decisions by the Secretary of State for Work and Pensions and the Scottish Ministers to cut the Winter Fuel Payment (Court of Session)

Factual and Procedural Background

This case concerns a judicial review petition brought by the Petitioners, Scottish residents of pensionable age with health conditions exacerbated by cold weather, challenging the decisions of the first respondent (a UK Government Minister) and the second respondents (Scottish Ministers) to restrict eligibility for winter heating financial assistance for the winter of 2024/25. The Petitioners lost entitlement to the Winter Fuel Payment (WFP) and the Pension Age Winter Heating Payment (PAWHP) following policy changes that introduced means-testing in place of previous universal payments.

The first respondent decided on 29 July 2024 that WFP would be payable only to those receiving Pension Credit or certain other means-tested benefits in England and Wales, with the 2024 Regulations giving effect to this decision. The second respondents, facing a reduction in their Block Grant Adjustment due to the first respondent’s decision, announced on 14 August 2024 that PAWHP would also be means-tested in Scotland, implementing this through the Scottish 2024 Regulations.

The Petitioners, who qualified for WFP in 2023 but not for PAWHP in 2024/25, challenged the legality of these decisions and regulations on multiple grounds, including failure to comply with equality duties, irrationality, breach of Convention rights, and failure to consult. Procedural hearings took place in December 2024 and January 2025, with the substantive hearing in March 2025.

Legal Issues Presented

1. Whether the first respondent failed to comply with the public sector equality duty (PSED) under section 149 of the Equality Act 2010 and failed to carry out a proper equality impact assessment (EQIA) before making the policy decision on WFP.
2. Whether the second respondents failed to comply with their PSED obligations and the specific duties under the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 in relation to PAWHP.
3. Whether the respondents’ policy decisions and the associated 2024 Regulations and Scottish 2024 Regulations were irrational or Wednesbury unreasonable.
4. Whether the respondents acted unlawfully under section 6 of the Human Rights Act 1998 by breaching Articles 2 and 8 of the European Convention on Human Rights.
5. Whether there was a duty to consult persons of pensionable age prior to the policy decisions and whether such duty was breached.
6. The appropriate remedies, including reduction of the regulations and specific performance orders related to EQIAs.

Arguments of the Parties

Petitioners' Arguments

• The first respondent failed to fulfill her statutory duties under section 149 of the Equality Act 2010 by not carrying out a proper EQIA or consulting pensioners before restricting WFP eligibility.
• The second respondents similarly failed to comply with their equality duties and did not adequately assess or publish the impact of revising PAWHP eligibility.
• The policy decisions and regulations were irrational and unreasonable, given the known adverse effects on vulnerable pensioners, including increased winter deaths and poverty.
• There was a breach of Articles 2 and 8 of the European Convention on Human Rights, as the respondents failed to protect the Petitioners’ rights to life and private and family life.
• There was a legitimate expectation of consultation which was not met by either respondent.
• The Petitioners had standing to challenge both respondents’ decisions, as the first respondent’s policy decision directly affected the Petitioners through its impact on the Block Grant and the second respondents’ subsequent policy.

First Respondent's Arguments

• The Petitioners lacked standing to challenge the first respondent’s decision, as the WFP payments and regulations applied only to England and Wales, and the first respondent no longer had competence over Scotland.
• References to parliamentary proceedings in the Petitioners’ pleadings should be excised due to parliamentary privilege.
• The first respondent complied with the PSED by considering relevant information and producing a High Level Equality Analysis; no formal EQIA document was mandated.
• There was no duty to consult; the decision was a high-level policy decision not requiring prior consultation.
• The policy decision and regulations were not irrational or unlawful, given the broad discretion in socio-economic policy decisions and the need to manage public finances.
• Articles 2 and 8 of the Convention were not engaged or breached by the first respondent’s decision.

Second Respondents' Arguments

• The second respondents complied with their PSED obligations, including carrying out and publishing an EQIA relating to PAWHP.
• The decision to revise PAWHP eligibility was a political and affordability judgment within their discretion and not irrational or unlawful.
• No statutory or common law duty to consult existed, and no legitimate expectation of consultation arose.
• The policy decision was taken quickly due to operational requirements and financial constraints.
• The social security system in Scotland, including PAWHP, complies with Articles 2 and 8 of the Convention, and any interference was proportionate and within the State’s margin of appreciation.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by addressing parliamentary privilege, excising averments that impermissibly invited judicial assessment of parliamentary truthfulness, while allowing factual references to parliamentary proceedings as historical fact. It then considered standing, applying the principle that standing depends on sufficient interest and direct effect. The Petitioners, though not entitled to WFP from the first respondent due to devolution, were directly affected by the ripple effects of the first respondent’s decision on Scottish funding and the second respondents’ policy. The court found that the Petitioners had standing to challenge both respondents.

Regarding the public sector equality duty (PSED), the court carefully analyzed whether each respondent complied with section 149 of the Equality Act 2010 and, for the second respondents, the additional publication duties under the 2012 Regulations. The court applied established case law emphasizing that the duty is personal to the decision-maker, requires a conscious and rigorous approach, and is not a mere tick-box exercise. The first respondent had before her a High Level Equality Analysis and relevant information about the impacts and mitigation measures, including increasing Pension Credit uptake. The court found that the first respondent complied with the PSED in substance and with rigour.

Similarly, the second respondents had prepared and published draft and final EQIAs, engaged with independent scrutiny by SCOSS, and revised assessments to reflect the change from universal to means-tested PAWHP. The court concluded that the second respondents complied with their equality duties, including the specific duties to publish an EQIA.

On the duty to consult, the court found no statutory or common law duty to consult the affected pensioners prior to the policy decisions. There was no established practice or promise amounting to a legitimate expectation of consultation. The nature of the high-level, fiscally-driven policy decisions affecting large populations militated against imposing such a duty.

Regarding irrationality, the court acknowledged the high threshold for judicial intervention in socio-economic policy decisions, especially those involving allocation of limited public resources and subject to parliamentary approval. The petitioners failed to demonstrate bad faith, improper motive, or manifest absurdity. The court recognized the hardship caused but held that such outcomes do not render the decisions irrational in law.

In relation to Convention rights, the court held that Article 2 was not engaged, as the case did not concern individuals in the State’s care or a failure to protect life in the sense required. Article 8 was also not engaged, given the absence of a direct and immediate link between the policy decisions and the Petitioners’ private life in the exceptional way required to engage the right. Even if Article 8 were engaged, the interference was lawful, pursued a legitimate aim, and was proportionate within the wide margin of appreciation afforded to the State in socio-economic policy.

Holding and Implications

The court REPELLED the Petitioners' pleas-in-law and REFUSED the petition for judicial review. The Petitioners’ challenge to the lawfulness of the first respondent’s and second respondents’ policy decisions and implementing regulations was dismissed in full.

The direct consequence is that the means-testing of the Winter Fuel Payment and the Pension Age Winter Heating Payment for winter 2024/25 remains lawful and effective. No remedies were granted, and the court reserved questions of expenses. The decision does not establish new precedent beyond affirming the application of existing principles on standing, the public sector equality duty, consultation, irrationality, and Convention rights in the context of devolved social security policy decisions.