Free breakfast clubs and SEND: what should schools consider?

A universal offer

The Government is rolling out free breakfast clubs across state-funded schools with primary-aged pupils. For schools currently participating in the programme, Department for Education (DfE) guidance requires the club to be open to all pupils on roll from Reception to Year 6, to last at least 30 minutes immediately before the school day and to be free and accessible.

Importantly, participating schools must offer a place to every pupil who wants one and cannot limit the number of places available.

The DfE is equally clear about SEND. Schools should make their provision inclusive and accessible, consider children's individual needs and ensure arrangements are suitable and safe where pupils have specific support needs. The guidance expressly reminds schools that they must make reasonable adjustments for disabled pupils and that, where an adjustment is required to access the breakfast club, its cost must not be passed to parents.

It is important also, to consider the conditions attached to the government's free breakfast club grant, which state:

'schools must ensure their offer is inclusive for all pupils and make adjustments as necessary, considering any related legislation and guidance.'

The Equality Act starting point

SEND and disability are not interchangeable: not every pupil with SEND will necessarily be disabled under the Equality Act 2010. However, there will frequently be an overlap.

Where a pupil is disabled, the school's reasonable adjustments duty applies to access to the benefits, facilities and services it provides, including non-educational activities. A breakfast club is therefore not outside the scope of the Equality Act simply because it takes place before the compulsory school day.

This means schools should be particularly cautious about blanket policies which prevent pupils from attending because they require additional staffing or support.

Instead, the school needs to consider the circumstances of the individual pupil and whether reasonable steps can be taken to overcome the disadvantage they would otherwise experience.

What is a "reasonable" adjustment?

There is no fixed answer. Relevant considerations can include whether the proposed adjustment would overcome the disadvantage experienced by the pupil; its practicability; the pupil's needs; financial and other costs; the school's resources and availability of other financial assistance; support available through the SEND framework; health and safety requirements; and the interests of other pupils.

These factors are particularly relevant where a pupil needs 1:1 support.

A school may legitimately need to consider whether suitably trained staff are available, whether existing staff can be redeployed or offered additional hours, whether additional staff could be recruited, what that would cost and whether alternative funding or assistance is available. It can also consider whether providing the support would adversely affect the safe supervision of other pupils.

Cost and staffing are therefore relevant – but they are not automatic trump cards. The question remains whether the adjustment is reasonable in all the circumstances.

What if the EHCP does not fund the additional support?

Schools should consider the terms of any Education, Health and Care Plan (EHCP), including what support it specifies and how that support is funded.

However, schools should not assume that the absence of funding for breakfast club within an EHCP resolves the issue.

The duty to make reasonable adjustments under the Equality Act exists separately from the SEND framework. Support already provided through an EHCP will be relevant to deciding what further adjustments are reasonable, but the fact that 1:1 support is funded only during the school day does not automatically mean that the school has no responsibility to consider how the pupil could access breakfast club.

Schools should therefore explore whether other support or funding may be available rather than treating the terms of the EHCP as the end of the enquiry.

Medical needs and safety

For some pupils, the issue will extend beyond general supervision. A pupil may need assistance with feeding, seizure management, emergency medication or other specialist care and monitoring.

Schools should consider how existing individual healthcare plans, risk assessments and medical procedures would operate during breakfast club. This may include considering who would provide medical assistance, whether staff have appropriate training, what emergency arrangements are required and whether the provision can be delivered safely before the usual school day begins.

Section 100 of the Children and Families Act 2014 also requires maintained schools and academies, amongst others, to make arrangements to support pupils with medical conditions. The latest breakfast club guidance expressly reminds schools of this duty.

Health and safety is also a relevant factor when deciding whether an adjustment is reasonable. The answer is therefore not that safety concerns must be disregarded, but that they should be properly identified and assessed rather than assumed.

Can a school ever say no?

There may be cases where, after properly assessing the individual circumstances, a school concludes that a particular adjustment cannot reasonably be made or that it cannot safely provide the support required in the way proposed.

However, that conclusion should follow the assessment rather than precede it.

A blanket policy stating that pupils who require 1:1 support cannot attend, or that a place will automatically be refused whenever existing breakfast club staff cannot meet a pupil's needs, would carry significant legal risk.

Schools will be in a much stronger position where they can demonstrate what support the pupil requires, what adjustments have been considered, the staffing options explored, the actual costs and resources involved, any external assistance or funding investigated and the relevant health and safety considerations.

Keep a clear record

Good documentation is particularly important where access may ultimately be restricted.

Schools should record the pupil's needs; discussions with parents; advice received via the customer portal, relevant EHCP or healthcare-plan provisions; staffing and training options considered; costs and available funding; risk assessments; possible alternative adjustments; and the reasons for the eventual decision.

Parents should also be involved in the process and given a clear explanation of the arrangements being considered and the outcome.

Schools will also need to consider the wider SEND reforms and focus on inclusivity and seek timely advice from external professionals.

Plan before the request arrives

The challenge for schools is that these questions cannot always be resolved on the morning a pupil arrives at breakfast club.

Schools participating in the programme should therefore consider accessibility when designing their provision, rather than waiting for an individual request. The DfE itself recommends identifying the needs of pupils with SEND, speaking regularly with families and ensuring staff are appropriately trained.

As free breakfast clubs continue to expand, schools should review their policies and staffing models now. Where a pupil requires significant additional support, an individual assessment of need, reasonable adjustments, safety, resources and available support will be much safer than relying on a blanket rule.

Where a school is considering refusing or restricting a disabled pupil's access because it cannot provide the staffing or support required, specific advice should be sought before a final decision is made.

If you have any questions about free breakfast clubs and SEND, or would like advice on your school’s particular circumstances, please get in touch with Natalie Wargent in our Regulatory, Risk and Resolution team.