The petition for judicial review in the case of Fanning and Fanning v the Secretary of State for Work and Pensions and the Scottish Ministers is being heard before Lady Hood in the Court of Session.

The grounds of challenge include a failure to consult and a failure to comply with the public sector equality duty under section 149 of the 2010 Equality Act including undertaking a proper equality impact assessment in relation to cuts to the winter fuel payment and the Scottish equivalent; including compliance with the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 as regards the Scottish ministers. Separately a challenge is made to a failure to properly consult affected persons at common law.

In addition, the petitioners contend that the respondents’ policy decisions, the 2024 Regulations and the Scottish 2024 Regulations were irrational and Wednesbury unreasonable as the respondents knew their decisions would cause significant excess winter deaths and jeopardise the health and lives of vulnerable pensioners across the UK as well as resulting in an estimated additional 100,000 pensioners in relative poverty after housing costs and 50,000 in absolute poverty.

Furthermore, that the policy decisions, the 2024 Regulations and the Scottish 2024 Regulations were unlawful in terms of section 6 of the Human Rights Act 1998 having regard to the petitioners’ rights as vulnerable pensioners under articles 2 and 8 of schedule 1 of the 1998 Act.

Joanna Cherry KC and Mike Dailly, solicitor advocate, appear on behalf of the petitioners.

Andrew Webster KC and Graeme MacIver, advocate, appear for the first respondent instructed by the Office of the Advocate General for Scotland. James Mure KC and David Welsh, advocate, appear for the second respondent instructed by the Scottish Government’s Legal Directorate.

The hearing is being livestreamed by the court here.