Two Scottish pensioners have been given permission to proceed with their legal challenge against the UK and Scottish and governments’ decision to cut the winter fuel payment.

The decision by the Court of Session means the challenge, brought by Peter and Florence Fanning, of Coatbridge, North Lanarkshire, will now proceed to a procedural hearing in December ahead of a full “substantive” hearing in January.

The proceedings were raised with the help of the Govan Law Centre against the Scottish Government and the UK Work and Pensions Secretary following the move to end universal entitlement to the payment.

The decision, which was announced by Chancellor Rachel Reeves following Labour’s election win, led to the Scottish Government – which was due to take control over a similar payment through the devolved Social Security Scotland but has since announced a delay – to follow suit.

The case asks the court to rule 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.

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” in terms the applicable legislation.

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.”

Alex Salmond sat at a table with Peter and Florence Fanning
Alex Salmond, left, had supported Peter and Florence Fanning as a ‘champion’ of the campaign (Craig Paton/PA)

The case’s argument 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.

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.

The Fannings’ legal action was launched in September with the support of former first minster and Alba Party leader Alex Salmond, who died on October 12.

Alba Party acting leader Kenny MacAskill said: “Alba Party very much welcomes this decision. Alex Salmond was a champion of this campaign and had been fully supportive of the Fannings in their case vs the Scottish and UK governments.

“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.”

Speaking at a press conference at the launch of the challenge, Mr Fanning 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.

“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.”

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.”

A Scottish Government spokesperson said it would not be appropriate for it to comment on live legal proceedings.