Government scheme unlawful after nurseries 'struggled to provide milk'

The Scottish Government’s scheme that guarantees nursery kids their morning milk is unlawful, a judge has ruled.

Scottish ministers acted “unfairly and irrationally” in failing to consult properly with dairy, health and education sector representatives on the new Milk and Healthy Snack Scheme, Lord Braid said.

The School and Nursery Milk Alliance took the government to court after the new system made it more difficult for smaller, rural or privately-run childcare settings to get milk in the way that worked best for them.

The organisation said many are faced with additional costs and administrative burdens.

For many years, pre-school children in Scotland have received a publicly funded 189 millilitre (1/3 of a pint) serving of milk on each day they attend nursery school or other childcare settings.

Until August 1, 2021, funding was provided under the Nursery Milk Scheme, a UK wide scheme.

But since then, a new wider scheme aims to provide a non-dairy alternative (for health, ethical or religious reasons) and a healthy snack.

However, it also changed the way in which childcare settings receive funding. Rather than reimbursement of actual costs, childcare settings now receive an amount based on a weighted average, known as the Local Serving Rate (LSR), which has been set for each local authority area.

Lord Braid at the Court of Session in Edinburgh said: “I have decided that the new scheme is unlawful in that (a) the respondent did not undertake a proper consultation on a key aspect of it, the LSRs, and (b) the fixing of the LSRs was irrational.

“The petitioner’s senior counsel was at pains to stress that the petitioner has no desire to interrupt the supply of free milk (and a snack) to pre-school children.”

The Scottish Government argued there was a full consultation on the fundamentals of the scheme, including being taken over by local authorities.

Minister said the purpose of the scheme, to provide greater access to free milk, had not been compromised and that any anomalies could be resolved in the year two review.

But the School and Nursery Milk Alliance said waiting until then may leave it too late, when certain suppliers may already have exited the market.

Jon Thornes, chairman of the organisation, said he was looking forward to working with the government to ensure as many children as possible can enjoy their free milk every day.

“The scheme’s intentions were excellent, and it can still be a great success, but we know that many settings including smaller, rural and/or privately-owned settings are currently unable to obtain their milk in a way that suits their needs, and many are also faced with additional cost and administrative burdens,” he said.

“We also know that the new scheme has resulted in significant loss of business for small local suppliers of Scottish milk, as many settings have been obliged to use supermarket chains or large [local authority]-contracted suppliers.”

A Scottish Government spokesperson 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.”