Two pensioners are seeking to take the Scottish and UK governments to court over the cut to the winter fuel payment.
Peter and Florence Fanning, of Coatbridge, North Lanarkshire, have raised proceedings with the help of the Govan Law Centre against the Scottish government and the UK work and pensions secretary over the policy.
It comes after the Scottish government announced its once universal benefit will now be means-tested, replicating a UK government decision.
The introduction of a replacement Scottish benefit was also delayed.
The judicial review – which has been raised at the Court of Session – now requires a judge’s approval to move to a hearing on the merits, with Govan Law Centre seeking to expedite both the case and its application for legal aid to ensure a decision can be handed down before the winter.
The case asks the court to rule on whether the decision was unlawful, which would then allow the petitioners to ask the court to, in effect, set aside the policy and restore the winter fuel payment to all.
Mr Fanning, 73, said: “We intend to sue both the London and Scottish governments, since both are guilty through action and inaction, of damaging the welfare of pensioners.
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“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.”
The case’s argument rests on the accusation 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.
A freedom of information request revealed an abridged version of such an assessment had been carried out by the Department for Work and Pensions (DWP), with the UK government arguing a full study was not required.
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Former first minister and current Alba Party leader Alex Salmond was instrumental in putting the Fannings in touch with Govan Law Centre ahead of the action being raised.
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Pointing to analysis by the Labour Party in 2017 – which suggested 4,000 people could die if the winter fuel payment was cut – Mr Salmond claimed it would be “reprehensible” for the UK government not to undertake an equality impact assessment because such a figure would be made public.
He added that the Scottish government should have challenged the decision.
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Rachel Moon, the instructing solicitor and a partner at Govan Law Centre, said: “This policy and the decisions taken affect those with protected characteristics, including age and disability, and it affects 10 million people.”
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Speaking to journalists at Holyrood on Thursday, First Minister John Swinney said the decision was made due to the “abrupt decision to remove £160m for our budget”.
He added: “Because on the question of the law, I am bound by law to balance the budget and to live within the means available to the government.”
Asked if the Scottish government had failed in its legal duty, Mr Swinney said: “I think the government has taken the action that has been necessary and appropriate, given our legal obligations, to live within our resources, but obviously these are issues that are now the subject of consideration by the courts and we will, of course, engage in that process.”
The UK government was contacted for comment.
