Date Legislation considered: 28 November 2025
Date Legislation in force: 11 October 2025
Relevant Withdrawal Agreement/EEA EFTA Separation Agreement Right(s): Article 30 of Title III of Withdrawal Agreement, Article 29 of Title III of EEA EFTA Separation Agreement. The above provisions cover social security coordination
What does the legislation do?
The Winter Heating Assistance (Pension Age) (Scotland) Amendment Regulations 2025 (the “Regulations”) introduce changes to Pension Age Winter Heating Payments (PAWHP) in Scotland. PAWHP is a state benefit paid as an annual, tax-free lump sum to individuals of State Pension age or over who reside in Scotland, to support them with winter energy costs. PAWHP replaced the UK-wide Winter Fuel Payment system in Scotland and will be administered entirely by Social Security Scotland in winter 2025/26.
The Regulations amend the Winter Heating Assistance (Pension Age) (Scotland) Regulations 2024 (the “Principal Regulations”) and establish the updated framework for PAWHP from winter 2025/26 onwards. The key changes include:
– Expanded eligibility for PAWHP to all individuals of pension age who are ordinarily resident in Scotland during the qualifying week (the third full week in September) and have a personal income of £35,000 and under. Previously, eligibility was limited to pensioners in households receiving qualifying income-related benefit or tax credits.
– Clarification on payment values, which will vary based on age and household composition.
– Rules for application windows, including opting out and opting in to PAWHP.
The second part of the PAWHP policy will be implemented in the Finance Bill; this will operate to recover the benefit through the tax system where a person is not in receipt of a relevant benefit and has a taxable income over £35k.
Regulation 6 inserts a new Regulation 8 into the Principal Regulations and provides that an individual who is subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 is not entitled to payment other than in specified circumstances.
A further change is the removal of EEA residency and export conditions from the Regulations. The accompanying policy note states:
“Despite the widening of eligibility through these amendment regulations, due to the element of means-testing introduced through the tax “clawback” from those with an income of over £35,000, the Scottish Government considers that the benefit should not be considered a form of assistance which would be exportable, as it does not fall within the matters covered by EC Regulation 883/2004. PAWHP therefore will not be exportable.”
Historically, PAWHP and its predecessor, Winter Fuel Payments, were within scope of EC Regulation 883/2004. They were classified as a social security benefit and, as such, were subject to social security coordination rules under Title III of both the Withdrawal Agreement and Separation Agreement.
Under Regulation 8 of the Principal Regulations, PAWHP could be exported as it could be paid to individuals habitually resident in countries listed in the Schedule, provided they had a ‘genuine and sufficient link’ to Scotland. The Schedule excluded countries with average winter temperatures higher than the warmest region in the UK, reflecting pre-Brexit practice.
The IMA reviewed the Principal Regulations as part of its legislation monitoring process and concluded they did not affect citizens’ rights. The Regulations maintained inclusion under the coordination of social security rules and ensured that the payment remained exportable to eligible citizens. However, the IMA noted these provisions were set to expire on 1 April 2025 and sought clarification from the Scottish Government regarding its policy intention beyond that date. Officials at the Scottish Government confirmed that the classification of the benefit would be reviewed in future regulations.
The 2025 Regulations no longer make provision for citizens living in certain EEA countries and Switzerland under social security coordination rules as incorporated in Title III of the Withdrawal Agreement. This means EU, EEA and EFTA citizens who were previously entitled to PAWHP (or the former Winter Fuel Payment) will not receive that entitlement this winter.
Comments
The IMA was concerned that the amendment made by Regulation 6 excluded applicants to the EUSS and joining family members from eligibility for the payment . Officials at the Scottish Government have confirmed that this is not the policy intention and that in accordance with the Home Office statement which was issued in 2021, EUSS applicants and joining family members within their first three months will be eligible for PAWHP if they meet the eligibility criteria, notwithstanding that the Regulations do not make express provision for these cohorts.
The IMA has been considering these Regulations alongside similar regulations in England and Wales, and Northern Ireland relating to their Winter Fuel Payments regime. Officials at the Scottish Government have advised the IMA that PAWHP was presented for classification at the December EU Administrative Commission for the Coordination of Social Security Systems and it was agreed that PAWHP would be classified as a Special Non-Contributory Benefit. This means that, although it continues to be a benefit co-ordinated under EC Regulation 883/2004, it is not required to be exported, as SNCBs can be made payable only in the country in which the individual resides.
Any citizen experiencing difficulties in exercising their rights are encouraged to report a complaint through the IMA Portal.
Further information about the IMA and guidance on how to report complaints can also be found on the website.