Scottish nursery milk scheme ruled to be 'unlawful'

Under the Scottish Milk and Healthy Snack scheme, pre-school children who attend nursery or a childminding setting receive a third of a pint of milk and a healthy snack such as fruit every day.

It replaced the former UK wide free nursery milk scheme last August. This scheme is still open to early years settings in England.

However, concerns had been raised that the new scheme was leaving many nurseries and childminders ‘out of pocket’, potentially causing children to miss out on their free milk entitlement, because of the way it is funded.

Under the previous UK-wide scheme, the actual costs of providing the milk to children was reimbursed, whereas with the Scottish Milk and Healthy Snack Scheme, funding is provided by periodical payments made in advance to councils based upon a weighted average, which is set by the Scottish government for each local authority.

The new scheme is also wider than the previous one as it provides for a non-dairy alternative to milk if necessary, and for the provision of a healthy snack – neither of which was previously provided.

Concerned that the funding provided to councils was set at too low a level for the Scottish Milk and Healthy Snack Scheme and impacting financially upon childcare settings, the School and Nursery Milk Alliance – which represents dairy, health and education providers who are involved in the scheme, brought a legal case against it.

It also argued that there were ‘failures’ in the Scottish government’s consultation exercise and ‘irrationality’ in calculating funding rates.

The Scottish government however insisted that there was a full consultation exercise on the principles of the scheme, including being taken over by local authorities.

The judge, Lord Braid, found in favour of the School and Nursery Milk Alliance, concluding that the ‘government did not undertake a proper consultation on a key aspect of the new scheme, namely the actual funding per child, per day’, and also, ‘that the funding rates decided were irrational.’

'We now look forward to working with Scottish government to ensure the scheme works well'

Jon Thornes, chairman of the School and Nursery Milk Alliance, said, ‘We are very pleased with the court’s ruling and we now look forward to working with the Scottish government to ensure that the Scottish Milk and Healthy Snack Scheme works well for all early years settings, so that 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. 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 LA-contracted suppliers.  We trust that the court’s ruling will now result in an improved scheme.’

The Scottish government - which has committed to providing free milk to all primary school children from August of next year - said it was ‘reflecting on the court's judgment’. 

A spokesman added, ‘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.’

Commenting on the ruling, National Day Nurseries Association’s (NDNA) director of policy and communications Jonathan Broadbery said, ‘Having access to the Milk and Healthy Snack Scheme is very important for children in early learning and childcare settings. Not only is it beneficial for their health but also in forming life-long healthy eating habits.

‘However, the scheme needs to work for both childcare providers and suppliers so that it delivers the maximum benefit for the children on the scheme. We don’t want childcare providers to be out of pocket or any children missing out on this helpful support that the Scottish government is making available.’

• Judge Lord Braid's written statement is available here