Eligibility criteria for free school meals challenged as discriminatory and a breach of children’s human rights

MG&Co has been instructed in a challenge to the Free School Meals eligibility criteria which means children in very low income families whose parents cannot claim welfare benefits because of their immigration status are not entitled to FSM.

Our judicial review pre-action letter argues that the exclusion of our clients, and the many thousands in their position, indirectly discriminates against children who are from Black and Ethnic Minority backgrounds and therefore breaches their human rights.

The claim is brought on behalf of three children:

  • Children “A” and “B” are British citizens. Their mother has a lawful right to reside in the UK but is expressly prohibited by UK law from claiming benefits. Before the temporary extension to free school meals, the children frequently had to go hungry at school and at home because of their limited family income.
  • Child “C” is 8 years old and has lived his entire life in the UK. His mother cannot claim benefits because she has no recourse to public funds. His mother has had to make significant sacrifices to pay for her child’s school meals and she is concerned she will not be able to continue to do so.

In stark contrast to other children, our clients are ordinarily excluded from being able to access free school meals because their mothers cannot claim welfare benefits which are the trigger for a child being entitled to free school meals, despite its purpose being to help children who are economically disadvantaged.

Earlier this year, as a result of a threat of legal proceedings brought by this firm, the Government agreed to temporarily extend free school meals to many children in this position during the Covid-19 crisis.

However, this is set to end because the Government has made it clear that the extension is temporary in light of the particular challenges posed by the coronavirus. Affected children, therefore, face the prospect of once again going hungry after schools return.

Rachel Etheridge of MG&Co, who acts for the Claimants, says,

“The Government has repeatedly asserted a commitment to building a more socially just and equal education system, where all children can thrive regardless of their socio-economic or ethnic background.

By direct contrast, for years now, economically deprived children have gone hungry at school because of the immigration status of their parents.

This is but one example of how the Government’s hostile environment strategy impacts on affected children and their development, with the vast majority being from Black and Ethnic Minority backgrounds.

We urge the Government to permanently extend free school meals to children from NRPF backgrounds and to take this as an opportunity to review the hostile environment policies which have had such a profoundly damaging impact on our clients and others in their position”.

The BBC’s article can be found here.


  1. The eligibility criteria for FSM is set out in the Education Act 1996 and requires a family to claim specified welfare benefits.
  2. Changes to the immigration rules and to the eligibility criteria for welfare benefits has meant that many parents lawfully in the UK (including those of British children) cannot claim the prescribed benefits which means their children are not entitled to free school meals. Children whose parents are undocumented are also affected.
  3. As the criteria is set out in primary legislation the Claimants will be seeking a declaration that the legislation is incompatible with the Human Rights Act 1998, and specifically, Article 14 of the ECHR, read with Articles 3, 8 and Article 2, Protocol 1 of the ECHR.
  4. The Claimants are represented by Rachel Etheridge and Clare Jennings of MG&Co with Julia Smyth and David Blundell QC of Landmark Chambers