A legal challenge to the decision to scrap universal winter fuel payments for pensioners has heard that the Scottish Government’s decision was a “direct consequence” of UK Government counterparts.
The Court of Session in Edinburgh was told on Wednesday that the union Unite has launched similar action in England, and it has been provided with documents which it is not permitted to share with lawyers in Scotland.
The Scottish challenge was brought by pensioners Florence and Peter Fanning, from Coatbridge, North Lanarkshire, who are represented by former SNP MP Joanna Cherry KC and Govan Law Centre.
The pensioners, who did not appear at the court on Wednesday, are seeking to reverse the decision announced by Chancellor Rachel Reeves to remove the universality of the payment.
Attorney General Andrew Webster KC represented the UK Government, known as the first respondent, and condemned a delay to the proceedings, while James Muir KC represented the Scottish Government, known as the second respondent.
Ms Cherry said: “The second respondent’s decision to proceed with plans for a non-means-tested benefit in Scotland was a direct consequence of the first respondent’s decision to withdraw the winter fuel payment.”
She said lawyers working for Unite, which is representing 11 petitioners in the English courts, have been provided with documents which were not permitted to be shared with Scottish counterparts, and Ms Cherry requested a 28-day postponement in the case. This was refused by the judge, Lady Hood.
Ms Cherry said: “Unite has told me there’s been a large amount of material disclosed by the UK Government in relation to the policy decision.
“English lawyers have asked for the Government’s legal department to provide that disclosure. The Government legal department has said no to that.”
She asked for grounds for extension citing it as a human rights case under Article 8 and Article 2 of the European Convention on Human Rights, and a challenge on irrationality, citing a legal test on unreasonableness.
Ms Cherry added: “What you are dealing with is a blatant black-and-white cut to a non-means-tested benefit.
“We accept that the court will have to look with great care to consider how policy decisions were taken.
“The petitioners are not asking the court to conduct their own assessment, but rather to look at the decisions and consider whether they were rational and reasonable.”
Both governments made submissions to refuse the requested 28-day extension.
Peter and Florence Fanning, of Coatbridge, North Lanarkshire, brought the legal challenge (Craig Paton/PA)
Mr Muir said: “The two new grounds change substantially the grounds of both respondents, and transform the grounds from public sector equality duty into irrationality and unlawfulness. It is unsatisfactory.”
Mr Webster said: “It is a very poor reflection on Scotland’s civil justice system.”
He said an affidavit had been provided already, and any application “should be made to this court, not to a court in another jurisdiction”, and that petitioners who did not do so should “suffer the consequences”.
Mr Webster added: “It is to Scottish courts that the application should be made, in a timely fashion.”
The court heard the Scottish Parliament amendment came into force in November.
Mr Muir said: “Hundreds of thousands of pensioners have received payments already.”
Lady Hood said: “I’ve been asked to allow a further 28 days. I’m not persuaded to do so at this stage.
“The material will not necessarily dramatically differ.”
A further hearing is scheduled for January 24 in the Court of Session.