A couple from Scotland is suing the UK government over its decision to abolish an allowance for at least 10 million elderly people to spend on additional heating fuel in the winter.

Following the Labour Party’s landslide election victory in the UK’s general election on July 4, one of the first decisions Chancellor of the Exchequer Rachel Reeves took was to axe the universal Winter Fuel Payment which is not means-tested and is worth 200 to 300 pounds ($260 to $390) a year, depending on age of the recipient.

The government expects to save 1.3 billion pounds ($1.7bn) in the current tax year (2024-25) and 1.5 billion pounds ($1.95bn) in subsequent years. This is part of a wider attempt to plug a 22-billion-pound ($28.58bn) shortfall in public finances, which Labour says it has inherited from the previous Conservative government.

The winter fuel allowance will now only go to pensioners who also receive other means-tested benefits such as Pension Credits. But critics say the process of applying for those benefits can be onerous and overwhelming for elderly people.

The decision, which applies to England and Wales, was swiftly followed by the devolved Scottish National Party-led Scottish government in Edinburgh which, in August, announced that it would also axe the payment. The Scottish government will save about 160 million pounds ($208m) per year as a result. It relies largely on block grants from Westminster to fund Scotland’s devolved departments and institutions.

So what is the Winter Fuel Payment and could a legal challenge prevent it being scrapped?

What is the Winter Fuel Payment?

It is an allowance paid to people above state pension age during the winter months to help with the cost of additional heating. People born between September 1944 and September 1958 receive a single payment each winter of 200 pounds, while those born before that receive 300 pounds.

The allowance was introduced by Tony Blair’s Labour government shortly after it came to power in 1997. Some elderly people were dying from the cold during the winter because they could not afford to heat their homes.

Changes to the UK state pension age meant that the age of those qualifying for the benefit rose from 65 in winter 2020-21 to 66 in winter 2021-22 and onwards.

The decision by the current Labour government to scrap the allowance on a universal basis means that about 10 million pensioners in England and Wales will lose access to the yearly subsidy.

The government has defended the decision, saying the payment was going to rich pensioners who do not need it. Those receiving other means-tested benefits, in particular Pension Credit, which is paid to the poorest, will continue to receive the Winter Fuel Payment.

What do critics say about the UK government’s decision?

While the poorest pensioners can still claim the allowance, Age UK, a charity for the over-50s, warned that Labour’s decision will “leave millions of struggling pensioners without money they rely on”.

The charity has outlined three areas of concern: “Those on low incomes who just miss out on Pension Credit; those who have unavoidably high energy needs because of disability or illness; the one million people who don’t receive Pension Credit even though they’re eligible for it.”

Many elderly people who are eligible for Pension Credit do not claim it because the process of doing so is too onerous and there can be a wait of several months for claims to be processed, experts say.

An Age UK petition, which is urging the UK government to reverse its decision, has already attracted more than 561,000 signatures.

On October 9, Conservative MP Victoria Atkins, shadow health and social care secretary, also warned on X: “Labour’s decision to slash Winter Fuel Payments will leave many pensioners choosing between heating and eating.”

Campaigners also warn that deaths of elderly people in winter will rise if the Winter Fuel Payment is restricted.

In 2015, research by Age UK found that the Winter Fuel Payment had helped to prevent 12,000 UK pensioner deaths each year. In 2022, an Institute of Health Equity report suggested that about 10 percent of 63,000 “excess” winter deaths in England in 2020-2021 were still “directly attributable to fuel poverty”.

The labour union, UNITE, staged a protest at the Labour Party Conference in Liverpool in September against the plan to scrap the allowance for many pensioners.

Sharon Graham, general secretary of UNITE, told reporters: “I think the priority that I’d like to hear from him [Keir Starmer] is that he’s going to reverse the decision on the winter fuel allowance.

“It’s a cruel policy. He needs to reverse it. And I’d like him to say that he’s made a misstep and to reverse that policy. I’d also like him to say that we’re not going to take this country down austerity mark 2.”

Sharon Graham, general secretary of union Unite, and other union members protest the decision of the Labour government to limit winter fuel payments to the elderly, at the UK Labour Party’s annual conference in Liverpool, UK, on September 25, 2024 [Phil Noble/Reuters]

Who is suing the government over this?

Peter and Florence Fanning, a husband and wife in their 70s from Coatbridge, Central Scotland, say they are suing both the UK government and the devolved Scottish government over the loss of the Winter Fuel Payment.

“We intend to sue both the London and Scottish governments, since both are guilty through action and inaction, of damaging the welfare of pensioners,” said Mr Fanning last month.

“We are hoping to be successful, given the manifest injustice involved. However, my work as a trade unionist and shop steward has taught me that some battles are worth fighting regardless of the outcome – I believe this is one such battle.”

It was announced this week that the former SNP MP, Joanna Cherry, has been appointed as senior counsel to the legal challenge.

How serious is the Fannings’ legal bid?

Fairly serious. The couple, who is being supported by the Govan Law Centre, an independent community-controlled legal centre in Glasgow, was granted the right to move to a hearing on the merits of the case by a judge in Edinburgh on October 24.

The legal challenge asserts that the government has not complied with a duty of care to ensure that its decision will not adversely affect people with different characteristics, such as age or disability. To meet its obligations, the government should have carried out a detailed equality impact assessment, the legal challenge asserts. It did not do this.

A procedural hearing will take place at Edinburgh’s Court of Session in early December with a substantive hearing scheduled for January 15.

Up until his untimely death from a heart attack on October 12 in North Macedonia, Alex Salmond, first minister of Scotland from 2007 to 2014, had also publicly supported the Fannings’ case in his capacity as leader of fringe pro-Scottish independence party Alba.

Kenny MacAskill, acting leader of Alba, noted that “Alex Salmond was a champion of this campaign and had been fully supportive of the Fannings in their case versus the Scottish and UK governments”.

He added: “The Scottish government should have been standing up for Scotland’s pensioners against Westminster cuts, instead they will now be standing shoulder to shoulder with the UK Labour government in court against the pensioners of Scotland.”

Could the court case succeed?

Yes, but a win may only delay the allowance being scrapped.

According to the UK’s popular consumer website, MoneySavingExpert.com, “while the case is being raised in Scotland, its outcome could also apply in England, Wales and Northern Ireland, as the Court could strike down the UK-wide regulations which brought the changes into force.

“If the Court finds that the government didn’t fulfil its duties under the Equality Act 2010, or didn’t follow procedural fairness by failing to consult pensioners, then this would render its decision to restrict the payments as unlawful.”

If the case is successful, the government could then undertake an impact assessment in order to proceed with the plan to abolish the allowance anyway.

However, Martin Lewis, consumer expert and founder of Money Saving Expert, a consumer finance information and discussion website, told the BBC: “If this were to succeed – and there’s quite a track record in Scotland of this type of thing going through to challenge Government decisions – it could mean it forces the Government […] to do an equality impact assessment, which is not quick.

“That would mean they could not impose the universal cut this year, so it would delay it. This is my interpretation: it wouldn’t stop it happening, but it would postpone it for a year.”