The Welsh Government failed to follow the law on Free School Meals, now what?

Our Head of Policy (Poverty) reacts to the High Court’s decision that the Welsh Government acted in breach of the law when stopping free school meals during the holidays.

Between the ongoing Labour leadership election, protests by farmers and the Covid inquiry, there was no shortage of Welsh political news during the week of 25th February. A development that was slightly lost amidst all the activity was a High Court decision that the Welsh Government acted in breach of its legal duties when it decided not to extend free school meals over the 2023 school summer holidays and beyond. Yet despite the Welsh Government admitting it had not acted in compliance with the law when reaching its decision, there are no plans to reintroduce support to families over the school holidays any time soon. So how is this possible and what are the implications of this decision for policy makers and campaigners? 

What was the case about?

Back in spring 2020 the Bevan Foundation and others ran a successful campaign calling on the Welsh Government to provide support to families in lieu of Free School Meals as schools were shut and the country placed in lockdown. Most local authorities in Wales provided families with cash, with families receiving £19.50 per week for each eligible child. The Welsh Government made the decision to make this support available over the school holidays, a policy that was retained post-pandemic as the cost-of-living crisis began to bite. 

In June 2023 the Welsh Government announced that this support would stop. The decision took effect immediately, meaning that support would not be made available over the summer holidays that would start just a few weeks later. The last-minute nature of the decision caught many by surprise and raised concerns about how families would manage. 

Two families decided to challenge the legality of the decision. They were represented by the Public Law Project and argued that the decision was illegal on two grounds:

1. That the Welsh Ministers did not have due regard to the United Nations Convention on the Rights of the Child as per their duty under the Rights of Children and Young Persons (Wales) Measure 2011 when making their decision. 
2. That the Welsh Ministers did not act in compliance with the Equality Act 2010 which requires public bodies to have due regard to the need to eliminate discrimination and advance equality of opportunity between people who have protected characteristics and those who do not, when making their decision.  

The Welsh Government admitted in court that it had failed to follow the law and that it had acted in breach of its duties on the two grounds as argued by the Public Law Project.  

What will happen next? 

On the face of it, the decision is brilliant news for families across Wales. Many might expect that given that the Welsh Government has admitted that it broke the law when removing Free School Meals over the holidays, that it will now be forced to reverse that decision and make support available for families from the Easter holidays onwards. This is not the case.

In October 2023 the Welsh Government made a further decision to suspend Free School Meals over the holidays. This time the Welsh Government undertook an impact assessment into the implications of its decision. Despite the fact that the impact assessment showed that the decision would have a negative impact on children and people with protected characteristics, the fact that an impact assessment had been undertaken means that the Welsh Government has acted in compliance with the law. 

What are the implications of this decision?

The High Court’s decision serves to highlight both the value and limitations of rights based legislation. On the one hand, the fact that the Welsh Government was, for the first time, found to have acted in breach of the Rights of Children and Young Persons (Wales) Measure 2011, shows that the High Court is willing to find the Welsh Government has acted in breach of its own legal duties (even if the Welsh Government did admit its own failures in this circumstance). On the other, despite the High Court’s decision families will not be receiving cash in lieu of Free School Meals going forward, nor will they receive compensation for the support that they’ve missed out on. This has two important implications for policy makers and campaigners across Wales.  

First, for rights based legislation to have real effect on people’s lives it must have sufficient teeth. The fact that the Welsh Government own equality impact assessment in October 2023 found that its decision would have a negative impact but has carried on regardless highlights just how limited the protections offered by both pieces of legislation are.  

Second, the inherent limitations of rights based legislation in some circumstances mean that there is a need to look beyond them when solving poverty and inequality. There has been a tendency under the first two decades of devolution to put values and principles into legislation, arguably at the expense of more direct policy change. The Welsh Government’s reaction to the High Court’s decision serves as a reminder that to make a real difference to people’s lives campaigners must place equal if not greater emphasis on practical policy asks, as on calling for values, however well intentioned, to be placed into law.