Access to Free School Meal provision for children denied recourse to public funds in Birmingham.
Dave Stamp & Sarina Hussain
This document will explore the phenomenon of food poverty for children in Birmingham denied free school meal provision as a consequence of their denial of recourse to public funds. It also includes some background information, legislative context, statistics, the methodology of the way ASIRT conducted this research, ASIRT’s findings from the research and some case study examples.
The rationale for this report was that ASIRT has become increasingly conscious, that children denied recourse to public funds as a consequence of their parents’ immigration status issues, and so supported under section 17 of the Children Act 1989, are amongst the poorest children in Birmingham , and yet they not qualify for Free School Meals, since their parents are , by definition, denied access to the ‘passport benefits’, which might trigger such access.
Our focus was to explore the concerns we had about the effect that this has on the children’s health and development, and what difference it might make in terms of children’s development if they were able to access free school meals. This document also highlights the considerable social exclusion and health inequality issues that these children face as a consequence, and attempts to give examples of how food poverty can be tackled in schools.
We will be sharing our findings with the Child Poverty Action Group (CPAG), whom we know to have already been engaged, in partnership with University College London, in research around the impacts of food poverty on children denied recourse to public funds, which is due for publication later this year, and with Birmingham’s Deputy Director of Public Health, in order to raise awareness of the extent of the problem, and to suggest possible solutions.
The Food Ethics Council has defined food poverty as meaning that an individual or family isn’t able to obtain to obtain healthy or nutritious food, or to access the food they would like to eat.
This is echoed by Bristol City Council, which defines food poverty as ‘the inability to afford or have access to food to make up a healthy diet’. This means that children living in poverty lack a diet containing adequate nourishment, required to attain and maintain a good health.
Birmingham City Council for its part, has declared food poverty as ‘a stain’ on the city, observing the rising number of ‘distressing cases of parents struggling to provide a meal for their children’.
A good diet, then, allows children to maintain a good focus when studying in school and avoid being ‘distracted’ by hunger .
Free School Meals were first introduced in 1906. This was to help improve children’s health. In 1904, the government and armed forces were reportedly shocked at the physical health of the young men they were recruiting in Britain. They found that the young men were either too small or under-nourished. This led to the formation of the ‘Committee on Physical Deterioration’.
The Education (Provision of Meals) Act was introduced in 1906, when a school board introduced Free School Meals in Bradford. Margaret McMillan and Fred Jowett, who were members of the school board, attempted to persuade Parliament to introduce legislation, which encouraged education authorities to provide Free School Meals for children, as their argument was that because the state made education compulsory, they should take the responsibility to ensure that the children at school are receiving an appropriate amount of nourishment.
The United Nations’ Special Rapporteur on extreme poverty and human rights reported in November 2018 that child poverty in the UK had risen, in some areas, as high as 40%, and that the phenomenon was especially common in families that had circumstances such as; an individual with a disability, single-parent families, households where no-one works, and households dependant on income from irregular work and zero hours jobs. [
In 25 constituencies, including Birmingham, it was found that more than 40% of children are living below the poverty line.
The cost of school meals in Birmingham is £11 per child per week – a total cost per annum of £396 per child for a 36 week school year. As we will see, this represents a significant chunk of the weekly section 17 subsistence allowance made available to children denied recourse to public funds.
Evidence from the Child Poverty Action Group suggests that the impacts of poverty on child development are considerable. According to the CPAG, children from poorer backgrounds fall behind during all stages of education. Poorer children, at the age of 3, are estimated to be around 9 months behind their more affluent peers, while children in receipt of free school meals, by the end of primary school, are estimated to be approximately 3 terms- the best part of an entire school year-behind, with that ‘education gap’ increasing to 5 terms by the age of 14. [
What is interesting here, however, is perhaps what these figures don’t tell us. Because, if the education gap is so striking between children in sufficient poverty to qualify for the provision of free school meals, what are the implications for children in families of level of social exclusion are such that they are denied even that level of provision- children who are essentially too poor even for a free school meal?
Who is eligible for free school meals?
In England, every infant school pupil- which is to say, every child in reception, year 1 and year 2 in state funded schools is eligible for a free school meal.
Beyond infancy, a child’s parent must be in receipt of one of the following.
- Income-based Jobseeker’s Allowance,
- Income Support
- income-related Employment and Support Allowance,
- Universal Credit
Children in families seeking asylum in the UK, and who are supported under Part VI of the Immigration and Asylum Act 1999, about which we will write more later, are also eligible for free school meal provision. Anybody else, however, whose immigration status precludes recourse to public funds, and thus to the ‘passport’ benefits referred to above, will not be.
Who has no recourse to public funds?
‘No Recourse to Public Funds’ is a condition applied to a given individual and their dependents on the basis of to their immigration status. Section 115 of the Immigration Act stipulates that a person will have no recourse to public funds if they are subject to immigration control. They will be regarded as subject to immigration control if they have leave to remain or enter with an applied NRPF condition, or if they do not have any form of leave to remain or enter, and are regarded by the Home Office as an ‘overstayer’.
It should be borne in mind that this is by no means necessarily a temporary or transitional condition. Parents and carers of British children- who by definition cannot be removed from the UK, or seek otherwise to regularise their immigration status- can be denied recourse to public funds, and thus their children to free school meal provision. Similarly, the Home Office’s policy of granting leave to remain, on a blanket basis, irrespective of circumstance, in 30 month blocks, necessitating regular renewal- frequently at considerable cost, and without access to appropriate legal support- means that children and families dip in and out of ‘legality’ and/or of recourse to public funds, entrenching poverty and precariousness in young people’s lives.
Denial of recourse to public funds and the Children Act.
Children and families denied recourse to public funds have the right to request an assessment of need from the local authority- or, in Birmingham’s case, the Children’s Trust- under section 17 of the Children Act.
The assessment may conclude that a given family is destitute, and that there is a need for the provision of accommodation and support. This responsibility arises from the general duty within section 17 to safeguard and promote the welfare of children in need. [
Section 17 sets out the general duty to :
- safeguard and promote the welfare of children within their area who are in need; and
- so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children’s needs.
For the purposes of this legislation, a child is taken to be ‘in need’ if:
- he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;”
- his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
- he is disabled.
Plainly, a child denied access to a sufficient income is likely to be in need of the provision of services in order to prevent his or her health or development from being impaired, and there is consequently a section 17 duty to provide ‘a range of services’- including, where appropriate, accommodation and financial support- to promote his or her development.
The kernel of this duty is quite succinctly summed up in the judgement R(AC & SH) v LB Lambeth Council (2017), in which the judge noted that:
‘The local authority is empowered to rescue a child in need from destitution where no other state provision is available.’ [
This, though, creates a dilemma. The UK Government’s policy towards migrants and migration, increasingly, has been to create a ‘hostile environment’, to switch off access to benefits and services and, essentially therefore, precisely to create a situation for migrant families in which ‘no other state provision is available.’
Yet, at the same time, those local authorities left with the responsibility of ‘rescuing’ destitute children from the destitution enshrined within central government policies are increasingly starved of the resources which might meet those children’s needs.
Birmingham City Council, for example, has had its infrastructure budget cut by £650 million in the 8 years from 2010 until 2018 , with yet more cuts to come. The basic needs of ever more children reduced to destitution, in other words, are having to be met with ever fewer resources. Perhaps unsurprisingly, therefore, many such needs- including access to adequate nutrition at school- appear to be going unmet.
Work to date.
Some local authorities in London, including Newham, Southwark, Islington and Tower Hamlets, noting that free school meals are available only to children in receipt of passport benefits, have piloted some degree of universal Free School Meals to ensure that low income working families were not missing out or being forced to stretch their means unduly to meet children’s school meal costs, noting that if schools were able to meet the cost of Free School Meals, it would help reduce poverty amongst working parents, as well as those who are not employed. The results suggest positive attainment for primary school children- key stage 1 (age 7) and key stage 2 (age 11), and that pupils made between 4 and 8 weeks more progress over 2 years than their peers in comparison with areas where the scheme was not piloted.
ASIRT worked in partnership with colleagues from different agencies under the aegis of the Destitution Support Steering Group.
Another partner, Birmingham Community Law Centre had previously submitted a Freedom of Information Request to schools throughout Birmingham, and to Birmingham City Council, seeking clarity around policies and procedures around the provision of free school meals to children at risk of food poverty as a consequence of their parents’ immigration status. Data obtained from that exercise has informed our findings.
ASIRT further submitted two freedom of information requests, one to Birmingham Children’s Trust and another to Sandwell Children’s Trust, requesting for information on:
- the number of children supported under Section 17 of the Children Act 1989 over the past 12 months due to immigration status issues,
- the number of families supported under Section 17 of the Children Act 1989 over the past 12 months,
- the number of families supported under Section 17 of the Children Act 1989 due to denial of recourse to public funds, from 2013 to 2018,
- the amount of money that is being spent on supporting such families each year,
- The average length of time such families are supported for
- and ways in which the Trusts seek to ensure that supported families receive appropriate Immigration advice. The responses I have received from Sandwell Council and Birmingham Children’s Trust have been included in the Appendices.
We further devised a free school meals questionnaire, seeking to ensure our service users’ voices were heard around the question of access. We sought clarity here on personal experiences and opinions on Free School Meal provision, how denial of access has affected them- or might in the future affect them if provision presently received were to cease.
As noted elsewhere, the question of access to free school meals for children denied recourse to public funds, and the corresponding poverty in which such children are placed, is a matter of growing concern.
Many of these children- a significant proportion of whom are themselves British citizens- will now be now supported by Birmingham Children’s Trust- formerly Birmingham City Council’s Children & Families Directorate- under section 17 of the Children Act. (With the caveat here that a significant, and by definition unknown, number of children in such families will never have approached or been referred to the Trust to access such support, or else will have been declined such provision, or even an assessment of need).
Birmingham Children’s Trust has published its subsistence support rates for children and families denied recourse to public funds as a consequence of their insecure immigration status. [ These rates are set at a weekly allowance of £35.39 for a single parent, an additional £40 for the eldest child within a family, and a further £30 for each subsequent child (with additional support costs of £5.00 per week factored in for pregnant women and nursing mothers). A single mother with 2 children over the age of 1 year, therefore, might expect to receive a weekly subsistence allowance of £105.39.
The Trust’s published policy notes that these rates have been set in line with those calculated by the Secretary of State for the Home Office as sufficient to meet the essential living needs of individuals seeking asylum and who have established destitution in order to qualify for the provision of financial support under Section 95 of the Immigration and Asylum Act (1999).
By way of comparison, section 95 asylum support is set at a flat rate of £37.75 per person [– so that a single mother with 2 children aged over 3 might expect to receive a weekly subsistence allowance of £113.25- so actually £7.86 per week more than an equivalent family supported by the Trust.
Moreover, as we have seen, children in families who are in receipt of section 95 asylum support are, in common with children in most other low-income families in the UK, eligible for the provision of free school meals]. This, effectively, potentially further disadvantages a single mother on section 17 provision with two Key Stage 2 school age children to the value of £22 per week[, effectively reducing the weekly disposable income available to the family to £83.39- or just £27.79 per person, which is to say £3.97 per person per day. This is, of course, £29.86 per week less than the £113.25 such a family might expect to receive on section 95 asylum support, and so constitutes an annual shortfall of £1555.72.
To put this into context, guidance around section 95 asylum support specifically states that support rates are set in order to meet asylum seekers’ ‘essential living needs’. [ By inference, therefore, the provision of support at any lower a level cannot reasonably be expected to meet such needs.
Further light around this was cast by the judgement R (on the application of VC and others) v Newcastle City Council, which determined that a statutory authority could not reasonably withhold or withdraw section 17 Children Act support from a destitute family in which the principle applicant was a refused (or ‘failed’) asylum seeker purely on the basis that that might family might alternatively seek support under the provisions of section 4 of the Immigration & Asylum Act 1999- the provision made available to single asylum applicants whose claims have been refused and appeal rights exhausted.
Here, the Courts found that the level of support made available to refused asylum seekers and their dependents to meet their basic needs could not reasonably be held to replace the section 17 duty to safeguard and promote a chi;d’s welfare, since section 4 support, by definition, was intended to be a very short term from of subsistence provision, made available on the basis that that there was a temporary impediment to an applicant’s removal from the UK and that, as a consequence, the financial support provided was intended simply to meet the most basic short-term survival needs.
Again, a comparison is illustrative. Under section 4, our hypothetical single mother might expect to receive a weekly subsistence payment of £35.39 per person, loaded onto a payment card. This would equate to a weekly household budget of £106.17. As with section 17 support, section 4 provision would not act as a ‘passport’ to free school meals- since section 4 support was never designed to meet children’s developmental welfare needs- , and so this sum can be reduced by a further £22 to £84.17- which is to say, £0.78p more per week than the £83.39 actual value of that provided under section 17 by the Children’s Trust.
This is a matter of some concern, since the Newcastle Judgement specifically noted that, by its very nature, the residual support provided under the Home Office’s section 4 regime could not be considered adequate to meet a child’s developmental welfare needs. Yet here we have the situation in which the failure to address the matter of free school meal provision is at least in part responsible for a situation in which the financial support provided by a Children’s Trust under section 17 of the Children Act precisely to meet a given child’s developmental welfare needs is in fact of less monetary value than the residual section 4 support already ruled inadequate by the Courts.
We consider that the implications of R (on the application of HC) v Secretary of State for Work and Pensions  UKSC 73 are of significance. Here, it was held that, particularly in relation to the circumstances of British children denied recourse to public funds as a consequence of their parents’ immigration statuses, a local authority reviewing the needs of the children for the purposes of section 17 would need to consider:
- the need to promote actively the welfare of the children, when exercising various statutory powers; (emphasis added).
- (ii) the fact that these children are British, with the right to remain here for the rest of their lives; and
- (iii) the impact on the proper development of the children which would follow if they were denied a level of support equivalent to their peers.
There is relatively little clarity around the numbers of children and families presently supported by the Children’s Trust under section 17. The Trust has acknowledged, in a response to a Freedom of Information request dated December 13th 2018, that it had provided such support to 423 families from January 2013 until January 2018, but declined to break this information down into numbers of children on the basis that such a sampling exercise would be inordinately expensive.
We know, however, that Birmingham Children and Families Directorate (the Trust’s precursors) had, in the year 2012-2013, spent the sum of £2,208,076 on the provision of accommodation and subsistence support to 163 families denied recourse to public funds.. FOI information made available by the Trust in December 2018 determines that the costs of this accommodation and subsistence support had risen in the interim to £3,009,225 for the year 2017-2018, suggesting that the numbers of families supported has risen to around 200. If we hypothesise an average of 2 children per household in this cohort, this suggests that at the very least 400 children in the city, identified by the Trust as ‘in need’, are consigned to food poverty as a consequence of their own or their parents’ immigration status.
A very small number of these children, as we shall see, receive Free School Meals direct from their school’s own budget. This, however, is discretionary, and a large proportion of children cannot access this support from their schools, not least because many schools, themselves struggling with cuts, simply cannot afford to meet their students’ school dinner costs.
Indeed, there is evidence to suggest that the exclusion of children denied public funds from free school meal provision creates a ‘ripple’ effect of disadvantage throughout the communities in which they live, further impacting on schools’ abilities to meet their most disadvantaged pupils’ needs.
Children with recourse to public funds, or else whose parents are in receipt of section 95 asylum support, who are eligible for free school meal provision because their families have a net income of less than £7400 per annum, can expect their schools to receive a Pupil Premium, a cash allowance of up to £1320 per pupil per annum, specifically designed to offset educational disadvantage, and which can be used be used by the school to facilitate appropriate staffing and pastoral support. Children denied recourse to public funds, however, and thus to free school meal provision, receive no such allowance, and so are consigned to still further educational disadvantage. So, again, our single mother with 2 dependent children, will receive an annual subsistence allowance of just £5480.28 from the Children’s Trust under section 17 Children Act provision- some £2000 per annum less than the £7400 threshold. Yet, despite being amongst the most economically disadvantaged cohort, her children’s school(s) will not receive a penny to help offset this disadvantage, further entrenching the family’s, and potentially the neighbourhood’s, poverty.
One Birmingham school, for example, indicated that 25 of its pupils have no recourse to public funds-and so are ineligible for Pupil Premium support. This school is located in the inner-city Sparkbrook constituency, one of the most deprived areas in this city- an unwelcome boast, given that 4 of the 10 Parliamentary constituencies within Birmingham rank among the most deprived in England. [
Again, by way of context, the standard accepted measurement is that a child can be said to be living in relative poverty if they live in a household with an income less than 60% of the national median. [ The median income for the year 2017-2018 was £28,000. [ We are, in other words, here discussing children living in families with an annual income of almost 80% less than the median.
This is of particular significance since our caseworkers’ experience is that social workers within the Children’s Trust, when challenged on the failure within the Trust’s policy to address the restricted access to free school meals inherent within the NRPF condition, routinely advise that individual schools have discretion, at their own expense, to make such provision available to affected children.
As a starting point, the Freedom of Information data gathered by Birmingham Community Law Centre is illustrative. All 400-plus Schools in Birmingham were asked to provide information relating to the numbers of pupils enrolled known to have no recourse to public funds, and, of those, the numbers to whom a free school meal was routinely made available, in the light of the family’s limited means. Schools were also asked to indicate whether a free school meal policy had been drawn up.
Of the 151 Primary and Secondary schools to submit a response, the data suggested that only 94 children denied recourse to public funds had been identified, spread across just 26 schools, of which children just 34 were offered a free school meal. Only 3 of these schools unequivocally indicated that they had devised free school meal policies.
38 schools advised that they did not know how many of their pupils had been denied recourse to public funds, while a further 70 claimed that none of their pupils were subject to such a condition. (The remaining 17 schools either left the question blank, or indicated that it was not applicable to them.)
This, of course, leaves significant gaps in our knowledge, since we already know of the existence of around 400 children denied recourse to public funds who are supported by Birmingham Children’s Trust under section 17 alone, to say nothing of those children who may have been placed in the region by another local authority or children’s trust, those who may have approached the Trust and been denied an assessment or services, and those who might simply have never approached any authority for support, or declared any irregularities around their immigration status. However, we think it worth noting that the costs of providing free school meals to 400 children across the city for the 36 weeks of the school year would cost the city an extra £158,400. While this may seem a considerable sum, in the context of the city’s overall £3 million-plus annual outlay on these disadvantaged children, it is of relatively minor significance, and could arguably offset some, at least, of the £1 billion pounds per annum costs to the city of child poverty, in healthcare, crime prevention, and assorted other factors. [
Work, therefore, needs to be done around identification of the scale of the problem, in order to be able to put appropriate safeguarding measures in place.
What we do know, however, is the impact of denial of access to free school meal provision on children in families denied recourse to public funds.
Our questionnaire survey of parents’ and carers’ feedback taught us that those parents whose children were not in receipt of free school meal provision were struggling financially and found it hard to pay for such meals, which they found expensive. Some told us that they had sometimes to resort to packed lunches- sandwiches and crisps- for their children if they could not afford school meals that month. Parents spoke of ‘juggling’ debts- opting, month by month, whether to pay their rent, or their child’s school meal costs, or their utility bills. We know, too, that many families struggle to meet travel costs, with some forced to travel quite some considerable distance across the city every day to attend school. This, too, creates difficulties, with parents telling us of how they routinely attempt to travel on expired tickets, or else wait until they find a driver prepared to take pity and allow them to board the bus without paying. This exposes them to the risk of fines, and possible criminal prosecution, if detected.
Parents who were receiving Free School Meals for their pre- Key Stage 2 children admitted that they were worried about the financial impacts on their families once the provision stopped as the children grew older. Parents claimed that they simply did not know what they’re going to do when this provision stops for their children.
Parents who were receiving Free School Meals for their children, who are above Year 2, said that they would be worried and would struggle if they were not receiving the Free School Meals. Some said that they have no idea as to what they would do if they were not in receipt of free school meals. One parent explained that she prefers her child having free school meals as it is nutritious and healthy for children, and means that he can have at least 1 proper cooked meal a day- a matter of particular significance, given that many of the families in receipt of section 17 Children Act provision will be living, frequently for significant periods of time, in ‘hotel’ or bed and breakfast accommodation, where they do not have access to cooking facilities.
Typical comments from parents were:
‘All children should have school meals as some families have difficulties getting any support. People should not be punished because of their status’.
‘All children should have a free lunch because some of the kids may not have a home, and they all should have a hot meal’,
‘Children and not responsible for their circumstances, whatever situation they encounter. We should as a society look after them- they are British! Feed them. It’s their basic human right’.
‘Being a single mother is sometimes hard, working hard and not being able to afford anything form your child. Getting a bit of help is always good. If my child had been able to get a free school meal, I could use that money to buy her something else she really needs.’
The prevailing view amongst parents was that access to Free School Meals would be a way of reducing the demonstrable financial constraints to which families subject to immigration control are demonstrably confined, and who cannot even rely on the limited bulwark against poverty afforded by recourse to public funds.
- There is a need for mapping the numbers of children within Birmingham denied recourse to public funds. The Children’s Trust has, to date, been reluctant to release data relating to the numbers of children whose support needs were met by the sum of £3,009,225 in the last financial year. The evidence further suggests that many schools are not collating data relating to the circumstances of some of the most deprived children in the city, and indeed the fact that the majority of the schools providing data appear to be of the conviction that not a single one of their pupils is subject to an NRPF condition, or indeed that the question is not relevant to them, is cause for concern.
- Inherent in this is a need for staff training, enabling professionals- including, crucially, teachers and school pastoral support staff- working with children and families denied recourse to public funds to identify concerns, and to refer on appropriately to ensure that status issues are resolved.
- There is, further, a need for a review of Birmingham Children’s Trust’s NRPF policy, taking account of the disparity between the subsistence rates it makes available to migrant families under section 17 of the Children Act, and those provided under section 95 of the Immigration and Asylum Act to destitute asylum seeking families. Particular attention should be paid to the demonstrable ‘lunch deficit’, with a commitment on the Trust’s part to ensure access to free school meals for all children provided with section 17 support on the basis of destitution.
- ‘Hannah’ is the single mother of 4 children, aged between 16 and 6, with 2 0 year old twins. At the time of her referral to ASIRT, she had come to the end of one 30 month period of leave to remain, granted without recourse to public funds. She had, broadly, managed to maintain her tenancy, working as a carer, amassing some arrears, as a consequence of which she was facing eviction. She had been unable to find the almost £5000 demanded by the Home Office to renew her family’s period of leave, and indeed had run up considerable debts attempting to do so.
Consequently, she had become an ‘overstayer’, and so had lost her right to work.
She described to us the situation, in which she routinely chose between paying her rent, her utility bills, or her elder three children’s school lunch costs. The provision of free school meals for the children would have constituted a value of almost £1200 per annum to the household, enabling her to keep up with her rent payments, or to set aside to meet the Home Office’s application costs, securing her employment rights and preventing the family from slipping into precariousness and destitution.
- ‘Astrid’ is the single mother of a 9 year old British child, who acquires her citizenship from her father, from whom Astrid is estranged, following domestic violence on his part. At the time of her referral to ASIRT, Astrid had been granted leave to remain in the UK as the primary carer of a British child, but with no recourse to public funds. The family was therefore supported by the Children’s Trust under section 17 of the Children Act, receiving a weekly income of £75 per week. Astrid having no recourse to public funds, her daughter was denied access to free school meals, shaving a further £396 from an annual budget of just £3900. Hannah has spoken of ways in which her daughter has missed out on experiences shared with her peers, such as sports clubs and school trips, as a consequence.
- ‘Albert and Martha’ are the parents of 4 children who, at the point of referral to ASIRT, were aged between 17 and 7, one of whom has a diagnosis of autism. The family had been granted 30 months leave to remain, with no recourse to public funds. Both parents were working full-time, with Martha working demanding night-time shifts as a care-worker, against her doctor’s advice as she has back problems. The family would have benefited to the value of £1584 had the children been eligible for the provision of free school meals, which might have helped to alleviate some of the financial pressure they were under, and ro meet some of their autistic child’s additional needs.