Following the decision of the Outer House of the Court of Session today, Friday 13 June 2025, in Fanning & Fanning v the Secretary of State for Work and Pensions and the Scottish Ministers (available here), a spokesperson for Govan Law Centre said:
“While our clients have lost their case at first instance, we have no doubt that this litigation has been influential in securing the partial U-turn made by the Scottish Government last November and the major policy U-turn confirmed by the UK Government earlier this week. We hope the Scottish Government will now follow suit and restore the Scottish pension age winter heating payment in full for people such as our clients.
It is important to appreciate that this challenge was always one of process; the speed of the decision and the fact that it was made allegedly without any equality impact assessment (see repeated public utterances by various UK Government ministers).
Even had the petitioners won, the most the Court could have done would have been to order each Government to go back to the drawing board to reconsider the cuts made to the winter fuel payment, following the correct processes in law. The fact that they have already reconsidered, vindicates our clients’ decision to bring this litigation.
We are particularly pleased that the court found for the petitioners on the issue of standing against the UK Government and dismissed the argument that to enable the challenge to proceed against them was to ignore the existence of the devolution settlement.
The judgment states that to allow the petitioners to proceed against the UK as well as the Scottish government in so far as their actions affect Scotland “merely recognises the reality of the devolution settlement, namely the inter play between the different levels of governments in the UK, which finds its expression not only in the devolution legislation itself, but also in the funding arrangements and inter-governmental arrangements which are in place to allow the system to operate.”
Our preliminary view is that an appeal would have reasonable prospects of success, particularly on the issue of compliance with the public sector equality duty. We are disappointed that the court did not see fit to comment on the contrast between what was said publicly by members of the UK government about the non-existence of an impact assessment at the time the policy decision was made, and the arguments made on their behalf in court which relied upon documentation that was still being produced after our senior counsel had finished her submissions. We do not think the UK Government fulfilled its duty of candour in this case.
However, we doubt that the legal aid board would be prepared to fund an appeal given that regardless of this decision, both governments have back tracked and restored the winter fuel payment at least to a degree. Accordingly, the outcome of an appeal could be argued to be academic.
Mr and Mrs Fanning are to be commended for their courage in pursuing this litigation. They would not have been able to have done so without the benefit of civil legal aid. Thanks are due to all who offered support including the Equality and Human Rights Commission and the trade unions RMT and RMT Scotland. We also remember today Scotland’s former First Minister, the late Alex Salmond, who was the instigator of this legal action. We are greatly in his debt.
Finally, thanks are due to our legal team Joanna Cherry K.C., junior counsel Govan Law Centre’s (GLC) Mike Dailly, Rachel Moon, Partner at GLC as the instructing solicitor supported by Lorna Walker, Senior Solicitor and Charis Brooks, Solicitor at GLC. Laura McDonagh, Partner at Drummond Miller LLP acting as Edinburgh agents”.
