Govan Law Centre (GLC) has raised proceedings for judicial review in Scotland’s Supreme Court, the Court of Session in Edinburgh, on behalf of a couple in receipt of the State Pension and a modest occupational pension.
Our clients’ petition was formally served on the Secretary of State for Work and Pensions (SoS) and the Scottish Government (SG) yesterday (Wednesday, 25 September 2024). 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.
Why the Court of Session has jurisdiction
The petitioners are domiciled in Scotland. The first respondent (SoS) is responsible for laying The Social Fund Winter Fuel Payment Regulations 2024 (SI 2024/869) on 22 August 2024, coming into force on 16 September 2024 and cutting the petitioners’ entitlement to the WFP and the entitlement of over 10 million people in receipt of the State Pension to the WFP in Scotland and the UK.
HM Treasury made cuts to the WFP on a UK-wide basis; the first respondent calculated those who would lose out on a Great Britain (GB) economic basis.
The second respondent (SG) decided on 14 August 2024 to pass that cut on to people of pensionable age in Scotland, like the petitioners, and has decided to postpone the exercise of its devolved WFP powers until winter 2025. The second respondent relies upon the first respondent to make WFP payments in Scotland this winter on a significantly reduced eligibility basis.
Grounds of challenge
There are two grounds of legal challenge. That the first respondent failed to exercise her duties under section 149 of the 2010 Equality Act (2010 Act) before making her decision to cut the WFP and failed to carry out an equality impact assessment (EQIA) in accordance with her 2010 Act duties and separately failed to consult with persons of pensionable age at common law.
The petitioners contend that the second respondent failed to exercise their duties under section 149 of the 2010 Act before making their decision to cut the WFP and failed to carry out and publish an EQIA which satisfied the requirements of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 and separately failed to consult with persons of pensionable age at common law.
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, including:
- 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 duty is non-delegable; and it is a continuing one; and
- It is good practice for a decision maker to keep records demonstrating consideration of the duty
The absence of any equality impact assessment or consultation
On the evening of Friday, 13 September 2024, the first respondent’s department published its response to a FOI enquiry concerning the impact of the decision to cut the WFP for citizens of pensionable age. The document is entitled, “High Level Equality Analysis (July 2024)” (the “EA”).
The introduction to the EA states as follows: “Please find below a copy of the Equality Analysis. Equality analyses are not impact assessments and are not routinely published alongside secondary legislation”. The EA is just over 2 pages long and provides an estimate of the number of people who will lose the WFP: “This policy will reduce the numbers entitled from around 12m to 1.7m in the 1st year, dropping to 1.2m by the end of the scorecard period”. The policy reduction number includes Scotland and is on a GB basis.
The EA breaks down statistically those who will lose the WFP in GB based on age, gender, couple/single relationship status and disability. 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 made any such assessment before making its decision on 14 August 2024.
Remedies sought
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.
What happens next?
The case requires permission from a Lord Ordinary to proceed to a substantive hearing on the merits of the case. GLC will seek to expedite proceedings on cause shown, namely the need for the petition to be heard before this winter. The instructing solicitor is Rachel Moon, Partner at GLC assisted by Lorna Walker, Senior Solicitor and Charis Brooks, Solicitor; the Solicitor Advocate instructed is GLC’s Mike Dailly; Laura McDonagh, Partner at Drummond Miller LLP acts as Edinburgh agents.
