The petition has been formally served to both the Secretary of State for Work and Pensions (SoS) and the Scottish Government.
The petitioners are now ineligible for the Winter Fuel Payment (WFP) – like millions of retired citizens across the UK who do not claim or qualify for Pension Credit – because of decisions of the SoS and SG.
The grounds of the legal challenge are that both respondents failed to exercise their duties under the 2010 Equality Act (2010 Act) before making a decision to cut the WFP and:
- failed to carry out an equality impact assessment (EQIA) in accordance with the 2010 Act duties; and
- separately failed to consult with persons of pensionable age at common law.
GLC says that there is significant caselaw in Scotland and the UK that makes it clear that the public sector equality duty under the 2010 Act must be exercised by the Minister and requires a number of steps to be undertaken in the formulation of policy. This includes steps such as:
- The duty must be fulfilled before and at the time when a particular policy is being considered.
- The duty must be “exercised in substance, with rigour, and with an open mind.” It is not a question of “ticking boxes.”
- A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a “rearguard action.”
The DWP has issued an equality assessment (EA) that breaks down statistically those who will lose the WFP in the UK, based on age, gender, couple/single relationship status and disability.
GLC stress however that the EA is not an EQIA: “It does not comply with the requirements of section 149 of the 2010 Act. There is no proper assessment of the risk and extent of the adverse impact of the decision on those who will lose the WFP and what it means for their health and wellbeing this winter.
“There is no proper assessment of the ways in which such risk could be eliminated or mitigated before the first respondent laid the 2024 Regulations; nor did the second respondent make any such assessment before making its decision on 14 August 2024.”
GLC adds that “If the Court finds that the respondents either failed to discharge their 2010 Act statutory duties and undertake an EQIA or failed to follow procedural fairness by a lack of any consultation, then this renders their decisions as unlawful.
“In that scenario the petitioners would be entitled to invite the Court to reduce the 2024 Regulations and the SG’s decision of 14 August 2024. This would restore the petitioners’ entitlement to the WFP and all those in receipt of the State Pension in the UK.”
The judicial review case now requires permission from a Lord Ordinary to proceed to a substantive hearing on the merits of the case.
GLC is seeking to expedite proceedings on “cause shown”, namely the need for the petition to be heard before this winter.
Ken Butler DR UK’s Welfare Rights and Policy Officer said: “Given the recent shameful passing by MPs of the WFA cut regulations, the news of this judicial review action is welcome and brings new hope.
“The Equality Act 2010 is an important means of legal protection from discrimination, harassment and victimisation. Its protection includes the remit of both older people and Disabled people.
“Sadly, the protective powers of the Equality Act are often ignored or not enforced by Government and other public bodies – meaning those discriminated against must take action themselves.
“The two pensioner petitioners and Govan Law Centre must be warmly congratulated for taking this judicial review which DR UK strongly supports and would urge others to do so.”
“To legislate for WFA cuts without first carrying out a EQIA is a disgraceful and dangerous abuse of power.
“Especially as the Labour Party’s own research of similar cuts from 2017 reported that could lead to almost 4,000 additional deaths.
“Given the lack of any EQUIA, hopefully, the Scottish Court will uphold the judicial review so helping to stop the proposed cuts this winter.”
For more information see Legal challenge to the winter fuel payment cut available from govanlawcentre.org.
See also our news stories: