Commentary on Sections Part 3: Miscellaneous Section 22: Provision of school meals
133.Section 22(1) and (2) of the Act substitutes a new section 53 (provision of school meals) into the 1980 Act.
134.Section 53(1) provides that the section applies to pupils in attendance at public schools and other educational establishments under the management of an education authority (this includes eligible pre-school children receiving early learning and childcare at education authority managed providers) and to pupils who receive their funded entitlement to early learning and childcare under section 35 of the Standards in Scotland’s Schools etc. Act 2000; that is, those who attend a partner provider setting.
135.Subsection (2) of the replacement section 53 requires an education authority to provide pupils with a free school lunch if they meet one of the income-related criteria set out in subsection (7). An authority may also secure the provision of free school lunches to such pupils. This means that education authorities can provide the lunches directly themselves, or they can pass on funding or arrangements to others, including partner providers delivering the entitlement to early learning and childcare. The option of securing a free school lunch is especially important for eligible pre-school children receiving their early learning and childcare entitlement at a partner provider, as those can be small businesses, third sector organisations or childminders; and it is important to ensure that, while the legal responsibility is on the education authority to provide a free school lunch to those eligible, allowing the authority to secure the provision of the lunches by others, gives it flexibility in terms of the delivery or physical provision of the meals.
136.Subsection (3) provides that an education authority has power to provide or secure the provision of other food and drink to pupils already receiving a free school lunch under subsection (2), because they satisfy the eligibility criteria set out in subsection (7). Further, an education authority has power to provide or secure the provision of food and drink, including school lunches, to pupils who are not entitled to a free school lunch under subsection (2).
137.Subsection (4) provides that where an education authority chooses to provide or secure the provision of food or drink to pupils under subsection (3), it can either do so free of charge or charge pupils for it.
138.Subsection (5) provides that an education authority may exercise its power under subsection (4) to provide or secure the provision food and drink free of charge to pupils who satisfy such conditions as the authority sees fit. For example, the education authority could choose to provide or secure free food and drink to pupils who are in a particular yearly stage of education. It also allows education authorities to provide or secure food and drink at such times of the day as they see fit, for example, at lunchtime or at a breakfast club.
139.Subsection (6) makes clear that an education authority which chooses to charge for food or drink under subsection (4) must charge the same amount for the same quantity of food and drink at each school within the education authority. This means they cannot charge one pupil one amount and another pupil a different amount for the same product (within the same school or another school within the same local authority); for example, a sandwich.
140.Subsection (7) sets out the criteria for eligibility for those children to whom the education authority is obliged to provide a free school lunch under subsection (2). A pupil falls within subsection (7)(a) where they, or their parents, are in receipt of income support, an income-based job seekers allowance, or an income-related allowance. A pupil will fall within subsection (7)(b) if their parents are in receipt of support provided under Part 6 of the Immigration and Asylum Act 1999 (support given to those whose asylum claims are on-going and support given to refused asylum seekers).
141.Subsection (8) enables the Scottish Ministers, by regulations, to modify the eligibility criteria for free school lunches set out in subsection (7). This means that the Scottish Ministers can make changes to the eligibility criteria resulting from, for example, changes to the welfare system, or where they wish to extend free school lunches to a new category of pupil; for example, an additional yearly stage of primary school.
142.Subsection (9) provides that an education authority must provide facilities, as it considers appropriate, for pupils who bring their own food and drink to schools and other educational establishments under their management: for example, seating for pupils who bring packed lunches. This duty does not extend to partner provider premises; therefore education authorities do not have a duty to provide or to secure the provision of facilities for pupils at partner provider settings.
143.Subsection (10) sets out the places where an education authority can provide or secure the provision of food and drink, namely, on the premises of the school, at other educational establishments under their management, at any place used by partner providers to provide early learning and childcare, or at any other place, for example, a community centre within the local authority.
144.Subsection (11) specifies that, in relation to the provision of food and drink under the new section 53, any pupil for whom the education authority has made special arrangements under section 14 of the 1980 Act (for example, placement at a private educational establishment) may nevertheless be deemed to be in attendance at a public school. This decision is at the discretion of the education authority. This means that if an education authority places an excluded pupil in an educational facility run by a voluntary organisation, the education authority would still be able to provide food and drink, free of charge, to that pupil, in the same way as it provides food and drink to other pupils in schools or educational establishments under its management.
145.Subsection (12) of the new section 53 defines “school lunch” for the purposes of sections 53, 53A and 53B of the 1980 Act as meaning anything provided or the provision of which is secured by the education authority (for example at partner providers) in the middle of the day that the education authority deems to be appropriate for pupils to consume as a meal at that time of day.
146.Section 22(3) of the Act also inserts a new section 53ZA into the 1980 Act. Section 53ZA allows Scottish Ministers to make regulations imposing a requirement on education authorities to provide or secure the provision of a free meal (of a description prescribed in the regulations and at a time of day prescribed in the regulations) other than a free school lunch for eligible pre-school children who meet the free school lunch criteria at section 53(7). For example, Scottish Ministers could require education authorities to provide a breakfast or evening meal for eligible pre-school children who meet the free school lunch criteria, which suits the timing of their session.
147.Section 22(6) makes an amendment of section 133(2YA) of the 1980 Act (regulations etc.), which ensures that regulations made under subsection (8)(a)(iii) and (8)(b) of the new section 53 are subject to affirmative procedure (for example, where a description of a pupil is added to subsection (7) by reference to their yearly stage of education or another description is added). It also ensures that any regulations made under section 53ZA(1) and 54A(1) (“Clothing grants”) are also subject to the affirmative procedure; for example, regulations that require education authorities to provide meals other than school lunches, or regulations requiring an education authority to pay a grant of a specified amount to or in respect of a pupil of a specified description for the provision of clothing for the pupil. This procedure does not apply to regulations made under subsection (8)(a)(i) and (ii) which add a description of a pupil by reference to any benefit, allowance, or tax credit. These regulations will be subject to negative procedure by virtue of section 133(2) of the 1980 Act.
148.Consequential amendments have been made by section 22(4) and (5) of the Act to update the references in sections 56A and 56E to the appropriate subsections of the new section 53. They are required as a result of the restructuring of section 53. These amendments will maintain the current position in relation to who the nutritional requirements and sustainable development guidance applies to. The duties will not be extended to partner providers. This is because nutritional regulations have already been made under section 56A, which exempt pre-school children who have different nutritional needs from school children; and, it would be too onerous to expect partner providers, which include childminders, to adhere to sustainable development guidance.