Huge update issued on legal fight which could see winter fuel payments return for millions – and it’s good news
THE likelihood of winter fuel payments returning for millions has increased following the approval of a legal challenge.
With the help of the Govan Law Centre (GLC), two Scottish pensioners have been allowed to continue their proceedings against the UK and Scottish government’s decision to cut the benefit.
If successful, more than 10 million households that have lost the annual top-up of up to £300 could see the help reinstated.
In the past, the winter fuel payment was available to everyone aged 66 and above.
However, after Labour’s election victory, Chancellor Rachel Reeves introduced cuts limiting winter fuel payment eligibility to those on pension credit or other means-tested benefits.
The decision led to the Scottish Government to follow suit.
In response, pensioners Peter and Florence Fanning raised a judicial review at Scotland’s highest court, the Court of Session, asking it to rule on whether the decision was unlawful last month.
Govan Law Centre said the permission to proceed, which was granted by Lady Hood in Edinburgh on Thursday, means the case has been assessed as having “a real prospect of success”.
If the cuts are found to be unlawful, the petitioners could ask the court to set aside the policy and restore the winter fuel payment to all.
However, there’s still no guarantee that such legal action will succeed.
A spokesperson for Govan Law Centre said: “Our clients are delighted that the court has granted permission for their judicial review challenge to proceed to a full hearing in early January.
“We await a decision on civil legal aid from the Scottish Legal Aid Board early next week in relation to the proceedings.
“If civil legal aid is granted we will then submit an urgent application for sanction for the employment of both junior and senior counsel and will announce our final legal team in early course.”
A procedural hearing has been assigned for December 4, with a substantive one-day hearing fixed for Wednesday, January 15.
A UK Government spokesperson said: “We are committed to supporting pensioners, with millions set to see their state pension rise by up to £1,700 this Parliament through our commitment to the triple lock.
“Over a million pensioners will still receive the winter fuel payment, and our drive to boost pension credit take-up has already seen a 152% increase in claims.
“Many others will also benefit from the £150 warm home discount to help with their energy bills over winter.”
What does the case argue?
The case rests on the accusation that both governments failed to adequately consult with those of pension age on the change and did not release an equality impact assessment on the changes.
The GLC claims that the government did not adhere to the requirements of the Equality Act 2010.
According to the Act, public bodies are obligated to consider how their decisions and actions will impact individuals with various “protected characteristics”, such as age and disability.
However, on September 13, the DWP did release its own equality impact assessment on target winter fuel payment, after receiving a Freedom of Information request on the matter.
In response to the request, the DWP said: “The government has followed its legal and statutory duties before introducing these changes and will continue to do so.”
But, GLC claims that there was no “proper assessment” and that the research included in the impact assessment was inadequate.
Separately, the GLC also argues that the government had a legal duty to consult people of state pension age about the changes but failed to do so.
Will it succeed?
These court battles can often take many months, if not years and the chances of reaching a verdict before the winter is very slim.
However, if the Court determines that the government failed to meet its obligations under the Equality Act 2010 or consult pensioners properly, the decision to limit the payments could be deemed unlawful.
In such a case, the Court could annul the regulations that implemented the changes and mandate the Government to conduct a comprehensive impact assessment.
This would revert the situation to its state before the policy was introduced, and winter fuel payments could be reinstated for all pensioners.
Again, the likelihood of this happening before winter is low.
It’s not the first time people have challenged benefit rules.
Back in April 2021, two Brits launched a claim against the DWP on behalf of the 1.9million households on legacy benefits who did not receive a £20 a week uplift given to those on Universal Credit during the pandemic.
They argued that those on legacy benefits should have been granted the same uplift.
However, the court ruling that followed in February 2022 dashed hopes of a payout that could have been worth £1,500 in backdated benefits.
How have winter fuel payments changed?
Winter fuel payments are now limited to retirees on pension credit or those receiving certain other means-tested benefits.
Only individuals claiming the following benefits will be eligible for a winter fuel payment this year:
- Pension credit
- Universal Credit
- Income support
- Income-based jobseeker’s allowance (JSA)
- Income-related employment support allowance (ESA)
- Child tax credit
- Working tax credit
To be eligible for this year’s payment, you must have an active claim for the benefits mentioned above during the “qualifying week,” which runs from 16 to 22 September (this week).
Most households automatically receive the winter fuel payment, including those on pension credit.
Over 800,000 households are thought to be missing out on pension credit, which unlocks their eligibility for this year’s winter fuel payment.
If you don’t apply for this year’s payment by the end of the week, you might assume that you won’t qualify.
However, thanks to a little-known loophole, this is not the case.
This is because new claims for pension credit can be backdated by up to three months.
This means that the absolute deadline to claim the benefit and qualify for this year’s winter fuel payment is December 21.
Of course, if you fail to apply for the benefit before this date, you won’t qualify for this year’s £300.
APPLY FOR PENSION CREDIT
PENSION credit tops up your weekly income to £218.15 if you are single or to £332.95 if you have a partner.
This is known as “guarantee credit”.
If your income is lower than this, you’re very likely to be eligible for the benefit.
However, if your income is slightly higher, you might still be eligible for pension credit if you have a disability, you care for someone, you have savings or you have housing costs.
Pension credit opens the door to other support, including housing benefits, cost of living payments, council tax reductions, the winter fuel payment and the Warm Home Discount.
You can start your application up to four months before you reach state pension age.
You can apply any time after you reach state pension age but your application can only be backdated by three months.
This means you can get up to three months of pension credit in your first payment if you were eligible during that time.
To apply, you’ll need the following information about you and your partner if you have one:
- National Insurance number
- Information about any income, savings and investments you have
- Information about your income, savings and investments on the date you want to backdate your application to
You’ll also need your bank account details. Depending on how you apply, you may also be asked for your bank or building society name, sort code and account number.
Applications can be made online by visiting gov.uk/pension-credit/how-to-claim.
If you’d prefer to apply over the phone, you can do so by calling the pension credit claim line on 0800 99 1234.