Rights and the PAC Report on the Free School Meals Voucher Scheme

Today the House of Commons Public Accounts Committee (PAC) released its report on “COVID 19: the free school meals voucher scheme” pursuant to an inquiry undertaken at the end of 2020. Our evidence to the inquiry is available here. While recognising the difficult circumstances in which the free school meals voucher scheme was launched, the PAC raises a number of important issues regarding the working of the scheme, some of which relate to value for money and failures to reduce taxpayer cost at opportune times, to manage contractual performance, and to increase interoperability with DWP databases to deliver support through non-privatised means (which I do not dwell on here), and others of which relate to the actual operation of the scheme.

On this latter point, the report notes that the failure to understand how schools and parents would use the scheme, and especially that people would want to actually speak to someone when they were struggling to use the scheme, contributed to delays in getting vouchers to families. It also notes under-preparedness and delays in recognising problems with the scheme’s operation by the Department for Education and the private contractor, Edenred. The PAC recommends that in future the Department should properly test systems and engage with frontline stakeholders in order to identify problems before they arise, to ensure sufficient capacity to problem solve and receive phone calls for users.

Implicit in this report, although not expressly articulated, is the fact that free school meal vouchers were a critical mechanism of ensuring that children were not hungry because the closure of schools meant they could no longer access free school meals in the ordinary way. As the Report puts it, “[t]he Department funds free school meals with the aim of ensuring that disadvantaged children have a healthy lunch that will support their learning and development” (p. 7).  However, another way of framing this is that providing access to free school meals to children in poverty during the pandemic is essential for protecting their human rights as protected by the International Covenant on Civil and Political Rights and, the International Covenant on Economic, Social and Cultural Rights, the UN Convention on the Rights of the Child, and the European Convention on Human Rights. In other words, that this is a mode of fulfilling the fundamental rights of children, which are clearly implicated by such a scheme.

Relevant rights include, for example, the right to the ‘enjoyment of the highest attainable standard of health’ (UN Convention on the Rights of the Child, Article 24). This right imposes a requirement on states to ‘combat disease and malnutrition, including within the framework of primary health care, through, among other things, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water’ (Article 24 (2) (c)). Furthermore, rights under the ECHR are implicated, including the right to private as family life. As Lord Wilson noted in R (on the application of DA and others) v Secretary of State for Work and Pensions [2019] UKSC 21, “it cannot seriously be disputed that the values underlying the right of … respect for … family life include those of a home life underpinned by a degree of stability, practical as well as emotional, and thus by financial resources adequate to meet basic needs, in particular for accommodation, warmth, food and clothing” (emphasis added)([35]).

Interestingly, the PAC does not frame the questions relating to the design and implementation of the free school meals voucher scheme by reference to rights at all (human rights are never mentioned in the report). Instead, the framing is primarily around value for money, effective contract management, and scheme design and testing. These concerns are not incompatible with a rights framing, but would be given further sharpness and clarity by seeing them in light of the human rights implications of privatisation.

While there is no prohibition in international human rights law on privatising the provision of even essential goods like water or food, it is very clear that “[t]he obligation to fulfil requires States parties to take necessary steps, to the maximum of their available resources, to facilitate and promote the enjoyment of Covenant rights, and, in certain cases, to directly provide goods and services essential to such enjoyment” (CESCR, General Comment No 24 (2017), [23]). In the context of privatisation, and as Prof. Aoife Nolan has put it, “the state has in human rights terms a role before, during, and after privatisation” (HRQ, 2018): it must design, monitor, manage, supervise, and regulate the privatised provision to ensure that it works to fulfil the rights in question.

This clearly aligns neatly with the kinds of concerns articulated by the PAC: in designing and then managing (and indeed extending) the contractual arrangement with Edenred the state ought to have attended more closely to the actual workability and effectiveness of the scheme not only for reasons of value for money, but because of their obligations to fulfil the human rights of children directly affected in terms of access to food by the closure of schools. In future contracts and in the provision of school meals (including by voucher schemes) the Department for Education should learn from this experience not only to ensure maximum taxpayer benefit and efficiency, but because of the state’s obligation to promote, protect, and fulfil children’s rights.

The PAC’s remit is to “hold[] government officials to account for the economy, efficiency and effectiveness of public spending”. Properly understood, these principles (economy, efficiency, and effectiveness) encapsulate rights-compliance and maximisation as well as accounting-based articulations of value for money. Attending to rights is not beyond the remit of the PAC, but rather reflects a rounded conceptualisation of it.

While attentiveness to rights would not necessarily have changed the overall conclusions of the PAC, it would have ensured that the recommendations made were important not only for managerial or accountability reasons, but in pursuit of rights-maximising effectiveness in government expenditure.