The petition for judicial review in the case of Fanning and Fanning v the Secretary of State for Work and Pensions and the Scottish Ministers called this morning (Friday, 24 January 2025) before Lady Hood in the Court of Session for a continued procedural hearing.
The petitioners moved their minute of amendment (as adjusted) which sought to add two additional grounds of legal challenge against both respondents, namely:
“(iii) Declarator that the respondents’ policy decisions, the 2024 Regulations and the Scottish 2024 Regulations were irrational and Wednesbury unreasonable as the respondents knew their decisions would cause significant excess winter deaths and jeopardise the health and lives of vulnerable pensioners across the UK as well as resulting in an estimated additional 100,000 pensioners in relative poverty after housing costs and 50,000 in absolute poverty;
(iv) Declarator the respondents’ policy decisions, the 2024 Regulations and the Scottish 2024 Regulations were unlawful in terms of section 6 of the Human Rights Act 1998 (the “1998 Act”) having regard to the petitioners’ rights as vulnerable pensioners under articles 2 and 8 of schedule 1 of the 1998 Act;”
The grounds were in addition to existing challenges in relation to a failure to consult and a failure to comply with the public sector equality duty under section 149 of the 2010 Equality Act including undertaking a proper equality impact assessment in relation to cuts to the winter fuel payment and the Scottish equivalent.
The motion to amend was strongly opposed by both respondents and the Court heard detailed legal argument from all parties in addition to notes of arguments and leading authorities. Lady Hood allowed the motion to amend and granted the following orders:
- On the opposed motion of the petitioners, allows the petition and answers to be amended in terms of the minute of amendment (as adjusted) for the petitioner, no.52 of process, and answers (as adjusted) for the second respondent, no.53 of process, and answers (as adjusted) for the first respondent, no.54 of process;
- Finds the petitioners, as assisted persons, liable to the first and second respondents in the expenses occasioned by amendment, the hearing of 15 January 2025 and of today’s hearing; remits the account thereof, when lodged, to the Auditor of Court to tax; reserves the question of modification of the expenses until the conclusion of the case; thereafter,
- Assigns Thursday 13 March and Friday 14 March 2025 at 10am, as the dates for a substantive hearing, said hearing to proceed within the Court of Session, Parliament Square, Edinburgh before the Hon. Lady Hood.
Joanna Cherry KC and Mike Dailly, Solicitor Advocate, appear on behalf of the petitioners. The instructing solicitor for the petitioners is Rachel Moon, Partner at GLC, with Laura McDonagh, Partner at Drummond Miller LLP acting as Edinburgh agents.
Andrew Webster KC and Graeme MacIver, Advocate appear for the first respondent instructed by the Office of the Advocate General for Scotland. James Mure KC and David Welsh, Advocate appear for the second respondent instructed by the Scottish Government’s Legal Directorate.
The petitioners are supported by a grant of civil legal aid from the Scottish Legal Aid Board in terms of the Legal Aid (Scotland) Act 1986, with assistance from the Equality and Human Rights Commission (EHRC) and the trade unions RMT and RMT Scotland.
