Judge declares funding for government nursery milk scheme unlawful

A SCHEME providing milk and snacks to nursery children has been declared unlawful in the way it is funded.

The Scottish Government project offers milk or a nondairy drink and a healthy snack to pre-schoolers.

Nurseries brought a legal challenge over funding after it replaced an earlier scheme offering a third of a pint of milk daily.

Previously, childcare settings offered milk purchased under the UK Nursery Milk Scheme, which reimbursed the actual costs of providing the drink to children.

But in August last year the Scottish Government replaced it with a Milk and Healthy Snack Scheme – and also altered the method of funding.

Under the initiative, cash is paid in advance to councils based upon a ‘local serving rate’ (LSR) set by the Scottish Government for each local authority.

The School and Nursery Milk Alliance, which represents dairy, health and education sectors, brought a successful judicial review, saying it had resulted in funding cuts to firms providing the drinks and snacks.

It said the LSRs were set at too low a level, and the initiative had unintentionally left many nurseries and childminders out of pocket.

The alliance claimed there were failures in the consultation exercise undertaken by the Scottish Government and irrationality in calculating the LSRs.

Funding cuts forced some to buy cheaper options, which hit their former suppliers. The hearing at the Court of Session heard that the earlier scheme had ensured small childcare settings in rural areas, which tended to face higher costs for delivered milk, were not left out of pocket.

In his written judgment, Lord Braid said: ‘A number of settings have complained that the cost of acquiring milk is no longer covered, and that they are faced with a choice between covering the shortfall themselves or purchasing from other suppliers, such as supermarkets, diverting staff resources to carrying out that task.

‘The petitioner asserts that the scheme has had the opposite effect

‘Opposite effect from that intended’

from that intended, in that it reduces the incentive to buy from local suppliers.’

One dairy firm representative believed that some childcare settings, particularly childminders, had chosen to stop giving out milk.

The alliance said it was not told of the proposal to base payments on LSRs until it was too late for it to make meaningful representations.

Lord Braid said the scheme was unlawful in that the ministers did not undertake a proper consultation on a key aspect, the LSRs, and the fixing of the funding for providing the daily milk and snack.

A Scottish Government spokesman said: ‘We are reflecting on the court’s judgment.

‘We remain committed to ensuring eligible pre-school children receive a free portion of milk and healthy snack to embed healthy eating habits from an early age.’