| SPOTLIGHT |
The High Court has rejected a legal challenge brought by a group of parents on behalf of their children against a decision by the Mayor of London to extend his Universal Free School Meals scheme for the academic year 2024-2025, but to continue to confine the scheme to state-funded primary schools.
In GH, R (on the application of) v The Mayor of London [2024] EWHC 1305 (Admin), Mr Justice MacDonald concluded that the decision to limit the scheme to state-funded schools was “plainly within the range of reasonable decisions open to the Defendant”.
The claimants are Charedi (Orthodox Jewish) children. The Chasidic community of which the claimants belong is primarily located in Stamford Hill in the London Borough of Hackney.
The claimants attend Charedi independent schools and assert that such schools are key institutions for preserving Charedi culture, said the judge.
He added: “However, the claimants contend that, for reasons deeply rooted in history and in religious and cultural identity, the only option for a majority of Charedi families is to send their children to independent schools and that to do so is, therefore, not a choice. In the Charedi community in Stamford Hill 97.2% of children attend independent schools.”
The claimants' schools have fees ranging from £2,080 to £4,056 per annum. Families are, however, not required to pay fees if they are unable to afford them.
On 20 February 2023, the Mayor of London announced that he intended to introduce a Universal Free School Meals (UFSM) scheme in London.
The UFSM scheme was described as a £130m “emergency scheme” to help around 270,000 primary school children with the cost-of-living crisis.
That figure was based on the sum of the number of children in Years 3-6 in state-funded primary schools, Pupil Referral Units and state-funded special schools who were not eligible for state-funded free school meals under the statutory free school meals scheme.
Like the statutory scheme, the Mayor’s proposed UFSM scheme was limited to state-funded primary schools, said the judge.
On 11 July 2023, the Mayor approved Mayoral Decision 3146 (MD3146) for funding of up to £129m to deliver UFSM within London for the 2023-2024 academic year to Key Stage 2 (KS2) children in state-funded primary schools who are not eligible under the statutory scheme.
MD3146 was accompanied by an interim Equality Impact Assessment (EqIA), together with a document entitled "Supplementary analysis on London School sector".
The judge said: “MD 3146 sets out the reasons for the Defendant deciding in July 2023 not to extend the UFSM scheme beyond state-funded primary schools to independent schools. Namely:
i) The decision not to extend UFSM to independent schools is consistent with the statutory scheme, which does not provide free school meals to independent schools, and the scope of the UFSM scheme is in line with the parameters set by national policy.
ii) There is a limited fund, insufficient to cover every child in London. The policy identifies children in state-funded schools as most in need above those independent schools who charge fees or receive alternative income for pupils that can be used to pay for meals.
iii) The policy is required to use the limited fund of money in the most efficient manner. This requires funding to reach as many pupils as possible as quickly as possible. A UFSM scheme for state-funded schools additional to the statutory scheme, and extending that scheme in line with national policy, allows children to benefit quickly from an emergency measure. Extending the policy to the non-state funded independent sector would undermine the deliverability of the UFSM scheme.
iv) A decision to extend the UFSM scheme to independent schools would result in implementation being significantly more complex, likely causing the scheme to be delayed. It would add additional and extensive burdens on boroughs and officials where relationships do not readily exist between local authorities and independent schools, where there are no readily available sub-categorisations of the independent sector enabling identification of families in poverty and where there are no national food standards for independent schools.
v) Due to their methods of funding and governance, and the limited availability of data on pupils, there is a lack of evidence to support funding for free school meals in independent schools.
vi) Alternative approaches to address the needs of the Charedi community are in place (in December 2023 the Defendant approved expenditure of £450,000 in grant funding to the London Borough of Hackney for onward grant to organisations within the Charedi community in Stamford Hill to alleviate food insecurity and to complement the Holiday Hunger programme).
On 8 August 2023, the claimants sent a pre action letter proposing a method for targeting the UFSM scheme only at certain independent schools charging low fees, for example £5,000 per year, or with discretionary fees.
The proposal was considered by the Mayor of London but, for reasons set out in a letter dated 12 August 2023, was not considered “operationally viable or consistent with the policy aims of the UFSM scheme”, said the judge.
On 18 January 2024, the Mayor approved Mayoral Decision 3224 ("MD3224") to continue to fund the UFSM scheme in state-funded primary schools in London for the 2024-2025 academic year.
The claimants sought permission to judicially review the decision of 18 January 2024. The claimants asserted that it was “irrational and discriminatory” for the Mayor to confine the UFSM scheme to state-funded schools.
The claimants relied on the following grounds:
Ground 1a): Prior to taking the decision on 18 January 2024, and having regard to his statutory duty to consult pursuant to ss.30 and 32 of the 1999 Act, the Mayor failed to take reasonable steps to acquaint himself with relevant information.
1b): The decision not to extend the UFSM scheme to independent schools was outside the range of reasonable decisions open to the defendant.
Ground 2: The defendant failed to comply with the Public Sector Equality Duty in breach of s.149 of the Equality Act 2010 in that, in the context of a stark equalities issue, he failed to undertake a substantial, rigorous and open-minded consideration addressing the class of persons obviously affected, particularly in the context of the obligations under the Greater London Authority Act 1999.
Ground 3: The Mayor's decision to exclude all independent schools from the UFSM scheme for the 2024-25 academic year resulted in unlawful indirect discrimination contrary to Article 14 of the ECHR.
Ground 4: The defendant's decision resulted in indirect discrimination under s.19 of the Equality Act 2010.
Discussing ground 1a, Mr Justice MacDonald said: “In the context of the general duty under the 1999 Act, the Claimants assert that no reasonable Mayor could have failed to ask the Charedi community or the local authorities who serve them whether it would be feasible to extend the UFSM scheme to independent schools whose pupils were impacted by food insecurity.”
The judge noted that the claimants did not assert that no rational mayor could have decided he had enough information before first deciding in July 2023 to implement the UFSM scheme as applying to state-funded schools only (judge’s emphasis).
He said: “The information then available from the interim EqIA and the "Supplementary analysis on London School sector" included the scope of the statutory scheme put in place by Parliament that the UFSM scheme was intended to top up; detailed information on the nature and extent of administrative complexities in delivery, monitoring and compliance were the UFSM Scheme to be extended to independent schools, including Charedi schools; the extent of the funds available to the UFSM scheme; the relative inequality and poverty of pupils attending state funded schools compared to children in the independent sector; the socio-economic difficulties affecting the Charedi community in London; and the nature and extent of other support available to families in London affected by the cost of living crisis, including Charedi families.”
He added: “In reaching his decision to extend the scheme in January 2024 the Defendant again had available to him that information. Whilst much of the information was gathered ahead of the scheme being implemented in July 2023, the matters it concerned were largely static and remained relevant at the time of the decision to extend the scheme.”
Concluding on Ground 1a, the judge said: “I do not consider there is an argument with a realistic prospect of success that no reasonable mayor could have been satisfied on the basis of the enquiries made that he possessed the information necessary to decide whether it was feasible to extend the UFSM scheme to students in need within all or some independent schools.”
Similarly, the judge did not find that Ground 1b was an arguable ground. He said: “The object of the UFSM scheme is to ameliorate the cost-of-living crisis for children in London by allocating funding to children from less affluent families. In circumstances where there is a finite amount of funding available to achieve that objective, the UFSM scheme has to have some criteria for eligibility and, absent detailed information on the financial circumstances of every family in London, this requires a proxy for identifying such families. Almost by definition, no proxy is going to fully replicate the target population.
“[…] Whilst the purpose of the UFSM scheme was to go beyond the statutory scheme in terms of the numbers of children helped, the decision to limit the scheme to state-funded schools was plainly within the range of reasonable decisions open to the Defendant.”
Turning to ground 2, the judge observed that the Mayor of London was required to exercise the PSED under s.149 of the Equality Act 2010 in substance, with “rigour, and with an open mind” (Bracking v SSWP).
He added: “The Court of Appeal has repeatedly made clear, however, that a realistic and proportionate approach to compliance with the PSED should be taken by the court in circumstances where the PSED is concerned with process not outcome, that the court should not be drawn into micro-managing the exercise of the duty and the court should only interfere where the approach adopted by the Defendant to the PSED is unreasonable or perverse.”
The judge noted that when taking the decision, the Mayor had available to him the interim EqIA and the IIA completed in November 2023.
The IIA was completed in November 2023, two months prior to the decision in January 2024, and after further information was provided by the claimants.
The judge concluded: “I do not consider there is an argument having a realistic prospect of success that no reasonable decision-maker would have failed to gather further material and, thus, that the Defendant has breached the PSED for lack of inquiry. It follows that it is not arguable that a failure to complete a new EqIA in January 2024 breached the PSED.”
In addition to the contended breach of the duty of inquiry, the claimants submitted that the Mayor “failed to have due regard” to the mandatory considerations of the need to advance equality of opportunity of the Charedi religious community, to remove or minimise disadvantages suffered by that religious community, and to take steps to meet the needs of the Charedi religious community which were different from non-religious communities.
With respect to the claimants' case on due regard, Mr Justice MacDonald said: “When deciding to extend the UFSM scheme for a further academic year on 18 January 2024 the Defendant had the benefit of the interim EqIA and the IIA, each of which sought to identify and assess the potential impacts and effects, and areas for mitigation, for people sharing one or more relevant protected characteristics, including religion. The Defendant was also directed to consider the decision implementing the UFSM scheme in July 2023, which gave consideration under the equality comments to whether the scheme should be extended to some independent schools in circumstances where some Charedi families are unable to pay school fees, live in larger than average families and receive housing benefits and tax credits.”
He continued: “Although determining not to take that course, the implementation decision further explored mitigating measures for the Charedi community in recognition that the cost-of-living crisis impacted on communities with the protected characteristic of religion.”
Turning to ground 3, the judge did not consider it to be an arguable ground for judicial review.
He said: “The UFSM scheme pursued the legitimate aim of addressing the cost-of-living crisis by allocating funding to provide free school meals to children with less affluent families not eligible under the statutory scheme. In circumstances where there is a finite amount of funding available, the UFSM scheme had to have some eligibility criteria to ensure the fair and equitable distribution of those finite funds to those in need and to be capable of being administered efficiently to the same end.
“[…] Even if it could be established that the decision not to extend the UFSM scheme to independent schools or some of them affects a disproportionate number of Charedi children based on the protected characteristic of religion so as to indirectly discriminate against them (which, as I say, must be open to very significant doubt), in any event I am not satisfied that there is an argument having a realistic prospect of success that such indirect discrimination has no objective and reasonable justification.”
Finally, considering ground 4, Mr Justice MacDonald found that in light of his conclusions on ground 3, he was “not satisfied that there is an argument having a realistic prospect of success that the decision indirectly discriminated against the Claimants for the purposes of s.19 of the Equality Act 2010.”
The judge concluded that none of the four grounds advanced by the claimants amounted to an arguable ground for judicial review having a realistic prospect of success.
A spokesperson for the Mayor of London said: “We welcome the decision from the High Court. The Mayor continues to provide free school meals to all state primary schools in the capital. The Mayor’s funding is in line with existing Government funding of free school meals and covers state-funded primary schools, special schools and pupil referral units but does not include independent schools.”
Lottie Winson
