The Free School Meals challenge in Wales: a case for optimism?

Date: 8th April 2024
Category: General measures of implementation, Incorporation

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For the first time, the Welsh Government has been found to have breached its duties under the Children & Young Persons (Wales) Measure 2011. The case should be of particular interest to Scotland as we approach UNCRC incorporation coming into force on 16th July 2024.

This Welsh Measure places a duty on Welsh Ministers to have "due regard" to the rights and obligations in the UN Convention of the Rights of the Child (UNCRC) when making decisions of a strategic nature.

A legal challenge was raised against Welsh Ministers’ decision to withdraw funding for free school meals during the school holidays. The Public Law Project, who raised proceedings on behalf of two families, alleged that Welsh Ministers had failed in their legal duty to give “due regard” to children’s rights under the UNCRC when making the decision. 

During the Covid pandemic, the Welsh Government provided free school meals or cash/vouchers to some children from low-income households through the Free School Meals (FSM) scheme, benefiting approximately 85,000 children.

This scheme upheld rights guaranteed under the UNCRC, including the right to adequate food, social security, and health. However, in June 2023, the Welsh Government abruptly withdrew funding for the FSM scheme.

Commentators noted that withdrawing the FSM scheme would have a twofold impact on eligible children: they will be denied fundamental rights in the future, and there will be a regression in the fulfilment of these rights experienced during the scheme's operation. This is particularly concerning for economically vulnerable households in Wales. Welsh law mandates that Welsh Ministers consider the impact on UNCRC Rights when exercising their functions, and the Welsh Government's own Children's Rights Scheme requires a rigorous Children’s Rights Impact Assessment (CRIA) before making such decisions.

The Public Law Project (‘PLP’) brought a case (the ‘FSM case’) on behalf of two families challenging the decision, in June 2023, to end the FSM scheme (the ‘first decision’). The challenge was based on a claim that the Welsh Government had not taken proper account of the impact on children’s rights in reaching the first decision.

Before the case came to trial, the Welsh Government conceded that it had not carried out a proper Child Rights Impact Assessment (CRIA) and not complied with its duty to have duty regard to the UNCRC when making the first decision. It also conceded that it had failed to properly assess the discriminatory impact of the first decision on children with protected characteristics. Accordingly, the High Court made a declaration that the first decision was unlawful.

Following that decision, the Welsh Government conducted an Integrated Impact Assessment, which included a CRIA, but ultimately decided it would not reinstate the FSM scheme despite the negative impacts predicted. The Public Law Project does not consider that there is any further ground on which to challenge this second decision as, by conducting the CRIA, Welsh Ministers have been able to discharge their duty to have due regard to the UNCRC.

The solicitor acting for the Public Law Project has nevertheless suggested that, although the lack of grounds to challenge the second decision is frustrating, there is cause for optimism:

“…the decision means that Welsh Ministers will take their legal obligations towards children and disadvantaged people in Wales more seriously when making decisions which affect them”.

It is hoped that the outcome of the case will promote improvement in practice and the application of CRIA by Welsh Government officials.

In Scotland, the UNCRC Incorporation Act will enter into force on 16th July 2024. This Act will make it unlawful for a public authority to act, or fail to act in a way which is incompatible with the UNCRC requirements. The Scottish duty can therefore be differentiated from the “due regard” formulation in Wales – but the Welsh case still demonstrates how legal protections for children’s rights can be powerful in holding government to account for its decision making.