Scottish ministers axed the universal winter fuel payment as a “direct consequence” of the UK government’s decision to stop the benefit, a court has heard.
Advocate Joanna Cherry KC told the judge Lady Hood that it is her position the SNP administration’s decision stemmed from the policy adopted by their Westminster counterparts.
The former SNP MP made the submission during a procedural hearing at the Court of Session in Edinburgh on Wednesday.
Ms Cherry is representing pensioners Peter and Florence Fanning in a judicial review at the court.
The couple, from Coatbridge in North Lanarkshire, are arguing both governments failed to adequately consult with those of pension age and did not release an equality impact assessment on the changes.
The court is being asked to rule on whether the decision to scrap the universal benefit for pensioners was unlawful.
This would allow the petitioners to ask the court to, in effect, set aside the policy and restore the winter fuel payment to all.
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The first respondent in the Scottish action is Liz Kendall MP, secretary of state for work and pensions.
The second respondent is the Scottish government.
Ms Cherry told the court that it was her position that Holyrood made their decision after the Labour government had made its mind up about the matter.
She said: “The second respondent’s decision to withdraw the non means-tested winter fuel payment was made as a direct consequence of the UK government’s decision to withdraw the winter fuel payment.”
Following Labour’s election win last summer, Chancellor Rachel Reeves announced the winter fuel payment – which had previously been universal – would only be available to those on pension credit or other means-tested benefits due to financial woes inherited from the previous Conservative government.
The decision led to the Scottish government following suit.
The Scottish government claimed Westminster’s decision was expected to cause a funding cut to Holyrood of up to £160m in 2024-25.
Ms Cherry said English lawyers were pursuing a similar case at the High Court in London for Unite.
She said the union’s lawyers had been provided with documentation about the Labour government’s decision to go ahead with the policy.
She said: “In the interests of comity between England and Scotland, I have asked for these documents to be given to us.
“However, the legal department acting for the second respondents have just refused to do that – they have said no.
“Unite’s solicitors have written to the court in London saying they had no problem with those documents being given to us.”
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Ms Cherry told the court that she was hoping to recover the documents, but this might mean a deadline which had been earlier imposed by the court so that the judicial review could be heard in March 2025, would have to be extended.
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Andrew Webster KC, for Ms Kendall, told the court Ms Cherry had been given material relating to the UK government’s reasons for scrapping the policy.
He added Ms Cherry had also been provided with an affidavit – a sworn statement – by a government official in relation to the policy.
Mr Webster argued the court shouldn’t amend the earlier deadline as it could cause the March date for the judicial review to be scrapped.
He told the court that it would have been correct legal procedure for the petitioners to have made an application to the Scottish court to obtain the English material at an earlier point in time.
Mr Webster added: “If you do not make a timely application to the court, you should be made to suffer the consequences and in my submission the petitioners should be made to suffer the consequences.”
He said that if the earlier deadline had been extended, it would cast a “very poor shadow on the Scottish civil justice system”.
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Speaking about the English material, Mr Webster said it wouldn’t “dramatically differ” from what Ms Cherry already had.
He added: “She cannot say that the material will assist her or the court.”
James Mure KC for the Scottish government also said the court should refuse to extend any previous guidelines.
Speaking about the English material, Mr Mure added: “It appears to be something of a fishing expedition.”
Lady Hood refused Ms Cherry’s request for a 28-day postponement in the case.
The judge said: “I’m not persuaded to do so at this stage. The material will not necessarily dramatically differ.”
A further hearing has been scheduled for Friday 24 January.
