Means testing for Winter Fuel Payments: What does it mean for those affected?

The government is proceeding with plans to introduce a means test for Winter Fuel Payments, after a vote in the House of Commons failed to block the policy.

On 29 July 2024, less than four weeks after the general election, the new chancellor of the exchequer, Rachel Reeves, announced that people in England and Wales who do not receive Pension Credit or certain other means-tested benefits will no longer receive Winter Fuel Payments. 

As a public law and human rights lawyer, I'm deeply concerned about this, despite the chancellor stating this decision was taken due to a £22 billion overspend on public finances, which meant the government had to make “incredibly tough choices”.

Background

Winter Fuel Payments were introduced in 1997 with the aim of helping people of pension age to cover their heating costs in winter, with households receiving up to £300 per year. In winter 2023/24, 10.8 million pensioners in England and Wales received the Winter Fuel Payment.

By limiting Winter Fuel Payments to people who are receiving Pension Credit and certain other benefits – including Income Support and Universal Credit – the government expects to save around £1.3 billion in 2024/25 and £1.5 billion in subsequent years. The Department for Work and Pensions estimated that 1.5 million people will receive a Winter Fuel Payment under the new means-tested scheme.

Two million pensioners will no longer receive payment

The charity Age UK has said that as many as two million pensioners who need this money to stay warm this winter will no longer receive it. A petition to save the Winter Fuel Payment for struggling pensioners has been signed by over half a million people. Age UK has identified particular groups who will be most seriously affected, including:

• Those on low incomes who just miss out on Pension Credit;
• Those with high energy needs because of disability or illness;
• The one million people who do not receive the Pension Credit for which they are eligible 

Trade union leaders have spoken out against means testing of Winter Fuel Payments, calling on the government to rethink the policy.

Secondary legislation

The secondary legislation which introduces the means test for Winter Fuel Payments, the Social Fund Winter Fuel Payment Regulations 2024, came into force on 16 September 2024. The Regulations were subject to the ‘negative procedure’, which means they become law unless either the House of Commons or the House of Lords pass a motion to stop it. On 10 September, the House of Commons voted on a motion to block the Regulations, but that blocking motion was defeated by 348 votes to 228.

Campaign groups and politicians have called on the government to assess the impact of limiting eligibility to Winter Fuel Payments, and to publish the results of that impact assessment before proceeding with the policy. It is understood that the Department for Energy Security and Net Zero has assessed the impact the policy change will have on pensioners living in fuel poverty but it has not said when that impact assessment will be published. 

The House of Lords Secondary Legislation Scrutiny Committee has said it is “unconvinced by the reasons given for the urgency” for bringing in the Regulations and is concerned that “precludes appropriate scrutiny and creates issues with the practicalities of bringing in the change at short notice”.

No consultation undertaken

The government has confirmed that no consultation has been undertaken before introducing the means test for Winter Fuel Payments, and a full impact assessment has not been prepared “because there is no significant new impact on business, charities or voluntary bodies”. 

It's possible for individuals, campaign groups, charities or companies to challenge decisions by public authorities, including the government, by judicial review. This includes challenges to secondary legislation, such as the Regulations which introduce the means test for Winter Fuel Payments.

Can a judicial review be brought?

Judicial review challenges can be brought on public law grounds, including irrationality and procedural unfairness, on the basis of an alleged breach of the rights protected by the Human Rights Act 1998, such as discrimination, or if it is argued that there has been a failure to comply with the Public Sector Equality Duty in the Equality Act 2010. 

A failure by a public authority, to carry out a consultation or conduct an impact assessment before making a decision which has a negative impact on people can lead to that decision being ruled to be unlawful. In those circumstances, the court has the power to ‘quash’ the decision if it deems that to be an appropriate remedy.

Find out more on Irwin Mitchell's expertise in handling public law and human rights cases at the dedicated section on our website.