AC-2024-CDF-000188 - [2025] EWHC 2196 (Admin)

Before dealing with the statutory and policy framework and the grounds of challenge, I shall deal in more detail with the factual background.

The social care assessment which the Council carried out in 2023 concluded that James needed support to become independent and was vulnerable because of his lack of social skills. In particular, he required support or prompting in all aspects of life including washing, cooking and other daily living activities. He could make simple day to day choices but had limited independence skills and could not manage his personal care. He needed assistance to dress himself and struggled to open a snack bag, hold a pen or open a drinks can. The section 140 assessment put his reading at below age 5 and his spelling and numeracy below age 6. Education and training needs were identified, which included developing his literacy and numeracy skills, improving his self-help and independence skills and developing his gross motor skills. The only placement recommended was on the Foundation Learning programme at the Coleg, which involves modules in citizenship, household skills, health and well-being, numeracy and literacy and independent learning skills/vocational skills.

The progress which James made during the subsequent placement is impressive. The planning meeting at the Coleg in July 2024 as he neared the end of the course, concluded as follows:

“[James] has made good progress at Coleg Elidyr. He remains a vulnerable young man requiring high levels of consistent, positive support from staff who understand him and with whom he is familiar. Stakeholders agree that Coleg Elidyr remains a very suitable place to meet [James’] needs… [he] requires a continuation of the structures that have so effectively supported him thus far to ensure the continued development of his skills through meaningful engagement and purposeful activities … the further development of his employability skills will be a central tenet of the Skills for Life programme”

James’ parents instructed an educational psychologist, Dr Wood, to report on the next steps. In a very detailed report in June 2024, the conclusion was set out at [88]:

“In summary, the evidence strongly indicates that continuation of a 'waking day' curriculum within the residential educational placement at Coleg Elidyr is essential for James to progress towards the long-term goals identified in the original s.140 assessment. His complex needs require the specialised, immersive, and consistent support that this setting provides, which goes beyond the typical 'school hours' model. Removing James from this placement at this stage would likely hinder the progress he has made and jeopardise the achievement of his identified learning outcomes. I recommend his entry onto the skills for life programme and for there to be a review after before the 2 years are completed.”

In August 2024 James’ solicitor sent a copy of that report to the Welsh Government seeking funding for the Skills for Life programme at the Coleg. The detailed covering letter was written after meetings with the Coleg and Career Wales and a draft sent to both beforehand. In this context it is important to note that there was and had been no challenge to the assessments of the Coleg, the social workers or Dr Wood. I do not accept however the submission of Mr Purchase KC that one of more of these were capable of amounting to a section 140 assessment. The requirement of the section is that the assessment must be arranged by the Welsh Government. The letter included the following passages, referring to the Welsh Government as WG:

“The Skills for Life programme is a progression programme for young people with autism, learning difficulties and disabilities who have typically completed the foundation education programme and a recognition has been made that s/he requires further specialist support to improve independence and employability skills to maximise post-college life chances. Skills for Life is a highly personalised provision that has a focus on reducing support needs and ensuring the skills acquired during the foundation education programme are not lost, but instead are consolidated and built upon.

Whilst we recognise the WG under paragraph 94 [of the policy] ordinarily would seek to arrange a fresh s.140 assessment we respectfully suggest that whilst we would not oppose the WG updating a s.140 assessment it is not strictly necessary on the grounds it is said the s.140 assessment read together with the application for funding at all material times envisaged a long-term programme in addition to the 2-years referred to. In any event, there is sufficient educational and social care evidence to support the proposition we make for James to enrol onto the college’s skills for life programme as his needs cannot be met by social care alone…”

The reply from a senior policy manager came on 6 September 2024 and included the following:

“The Welsh Government endeavours to act in accordance with our policy document ‘Securing provision for young people with learning difficulties in specialist further education establishments’, the Technical Guidance for Careers Wales and in adherence to the Learning and Skills Act 2000. Further information regarding our policy can be found here

If James is expected to complete, then any additional provision falls under an ‘additional programme of study’. If your client wishes to pursue this, then the first step in the process is for James or his parent/carer to engage with Careers Wales for them to submit a request to update James’ section 140 assessment. Further information is available in paragraphs 92 97 of the policy…”

This stance was repeated by letter dated 4 October 2024 and so his parents did engage with Careers Wales to request and update to the section 140 assessment, which request was made. That brought forth the reply to Careers Wales on 28 November 2024, from Hannah Wharf, Deputy Director of the Support for Learners Division of the Welsh Government, which included this:

“Further to your request to update James’ section 140 assessment, I am writing to advise you that the Welsh Government has reached a decision. Having considered the information in the section 140 update request, the Welsh Government has concluded that the evidence provided did not meet the criteria to support the request for James’s section 140 assessment to be updated…

In considering these points, whilst the information provided by independent professionals and those who have been working with James, is informative, James has already been provided with a section 140 assessment in his final year of schooling, in order to be afforded equitable access to further education. It is therefore for the Welsh Minister’s discretion to decide whether there is suitable evidence to support James having a further section 140 assessment.

It is a testament to how well James has progressed in his time at Coleg Elidyr and the fact that he will achieve his agreed programme of study by the agreed end date of December 2024. However, the ability for him to continue learning is not an exceptional reason why a further assessment should be provided.

…

Taking all the information into account, it is considered that there is insufficient evidence that a further assessment is required. Whilst the Welsh Government will take account of the information contained in the section 140 request, it has the discretion to consider whether the assessment is needed.

The Welsh Government endeavours to act in accordance with our policy document ‘Securing provision for young people with learning difficulties in specialist further education establishments’, Technical Guidance for Careers Wales and in adherence to the Learning and Skills Act 2000. If it is believed the Welsh Government has not made a reasonable decision in line with our policy and/or the law the young person involved and/or their parent/carer can appeal to the Welsh Government to review the decision made.”

It is these responses which are the subject of challenge in these proceedings, in essence on the basis that they demonstrate far too rigid and narrow approach in responding to the requests in light of James’ disabilities. An appeal was filed on his behalf as suggested but rejected. It is this informal appeal procedure which is the basis of the Welsh Ministers’ submission that there is an adequate alternative remedy, an issue to which I shall return.