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

The policy referred to by the Welsh Government is its policy entitled “Securing Provision for Young People with Learning Difficulties at Specialist Further Education Establishments” which is dated 2020. It is not in dispute that its purpose is to give guidance, no less and no more, as to the approach of the Welsh Government to the implementation of the 2000 Act. Both parties place reliance upon it, in different ways, and agree that it must be read as a whole. It will be necessary, therefore, to cite passages at some length.

After indicating that the Welsh Government expects that normally the mainstream FE system would meet the education needs of the majority of young people with learning difficulties, it states at [3]:

“However, the Welsh Government’s funding policy (as set out in this policy document) is to fund the specialist provision required for those young people with learning difficulties aged 16‒25 who wish to undertake post-16 education but are not able to access the provision established as necessary to meet their identified educational and training needs through mainstream FE provision. This might also include boarding accommodation. The Welsh Government’s policy is to fund the duration required based on the young person’s capability to progress and achieve against their education and training outcomes. For the majority of young people accessing specialist provision, the duration will be comparable with the duration of provision available within mainstream FE establishments, i.e. two academic years.”

The following two paragraphs give the overarching purpose of the policy:

“4.

This policy is not aimed at providing either an alternative choice for the young person or respite for their family, or at mitigating the support arrangements that may not be available through other support services; it is intended as an equitable approach to secure provision to meet the identified educational and training needs of young people. This document sets out how the Welsh Government will apply this policy in practice.

5.

This document is not intended as a guide to the assessment of a young person’s needs nor does it describe a set of rigid requirements which must be met. The Welsh Government will exercise their powers in a flexible and responsible way to achieve this objective.”

The policy then goes on to deal with the funding of further education for more than two years, as is sought on behalf of James. At [73], under a heading which refers to the procedure for funding decisions, it states:

“ 73. The Welsh Government should not receive an application for a programme of study lasting more than two academic years unless exceptional reasons relating to the young person’s capability to learn are demonstrated. Even in these cases, funding is unlikely to be offered for more than two years in the absence of objective evidence demonstrating that the provision identified as necessary to meet the young person’s established needs cannot realistically be provided by a study programme of two years. The duration of a programme of study must be identified by Careers Wales prior to the submission of an application.”

There then follows a section dealing with requests to fund additional programmes of study. [92-94] are important:

“92.

In certain circumstances it may be necessary for a young person to undertake additional specialist provision over and above, and following completion of, the young person’s original agreed programme of study. However, it is not the Welsh Government’s policy to routinely fund continuous education and training up until the age of 25. Nor is it the Welsh Government’s policy to fund an additional programme of study solely because it is considered desirable for the young person, for example, because the young person has fared well at a particular specialist FE establishment and would continue to make good progress or because appropriate transitional arrangements have not been put in place following completion of the previous/existing programme of study (see para 74/75 for additional information on transition planning).

93.

The Welsh Government will only fund an additional programme of study at any specialist FE establishment in exceptional circumstances. Examples of exceptional circumstances are:

•

where the education or training provided by the specialist FE establishment fell so far below the expected standard, that it is viewed, the establishment failed to deliver the provision established as necessary to meet the young person’s LSP.

•

where the personal circumstances or needs of the young person have changed to such an extent that they failed to obtain, or subsequently lost the benefits of the LSP, adversely affecting their ability to engage meaningfully with the agreed programme of study, e.g. because of a change in nature of their disability (a very significant deterioration or a very significant improvement in their disability), or as a result of a traumatic experience.”

The following paragraph is particularly important in the context of this case:

“94.

Before an application for an additional programme of study can be made, the Welsh Government must give consent to a request to update a section 140 assessment. This request must evidence what has changed in the young person’s circumstances to such an extent that would warrant an update to the section 140 assessment. Subject to this consent, there is no guarantee of Welsh Government funding for an additional programme of study (see ‘Section 140 assessment (LSP)’ on page 7; para 43(b) and para 81 of the Technical Guidance for Careers Wales).”

There is, in the present proceedings, no challenge to the policy, save in respect of the word “must” in [94]. This word replaced the word “may” in a previous version. It is unclear why. Ms Wharf, who has filed a witness statement in these proceedings, deals with other changes in the wording of the policy but, somewhat surprisingly, does not expressly deal with this one.

A challenge to the policy failed in the Court of Appeal case of R(DJ) v Welsh Ministers & Anor [2019] EWCA Civ 1349. Simler LJ, as she then was, giving the lead judgment, said this at [72-75 and 79]:

“72.

The proper approach to construing the Policy is not in doubt. It must be read as a whole and construed objectively bearing in mind that it is not a statute, but an expression of administrative policy.

73.

Adopting that approach, in my judgment it is not so rigidly and narrowly confined as to be an unlawful fetter. Starting with paragraphs 3 and 5 of the Policy, the general rule (namely to fund two academic years) is described, but making clear that this applies in the majority of cases; and the Policy does not describe "a set of rigid requirements which must be met". Instead paragraph 5 emphasises that the Welsh Government will exercise their powers "in a flexible and responsible way" to achieve the statutory objective. Paragraph 21 of the Policy makes clear that in determining whether or not to fund placements at specialist FE establishments, the Welsh Government's statutory obligations must be met, including consideration of available resources, and ensuring the fair and equitable treatment of young people on a case-by-case basis. As the Policy makes clear however, there is no legal duty to fund specialist provision of an individual's choice or a programme duration of choice.”

74.

Consistently with the underlying two-year policy and its rationale, paragraph 92 recognises that additional specialist provision over and above two academic years might be necessary in certain cases, but states it is not the policy of the Welsh Ministers to provide routine funding for continuous education and training up to age 25. That too is not challenged, and no doubt reflects the existence of a variety of sources of funded educational provision available for young people with learning difficulties.

75.

Given that continuous education and training up to the age of 25 is not routinely funded, paragraph 92 articulates exceptions to the general policy of providing funding for two (or exceptionally, three) years only, and Ms Henke [counsel for the appellant] accepts that general approach to the fulfilment of the Welsh Ministers' statutory duty under ss.32 and 41 of the 2000 Act is lawful…

79.

However I can see nothing in the wording used and no reason to interpret the Policy as being confined to situations of a negative change as opposed to including also positive changes. It is significant in this regard that the Welsh Ministers did not reject out of hand the application made on DJ's behalf for an updated assessment because it relied on positive changes (and not negative ones); but instead, invited the provision of additional information from Careers Wales in order to determine the application.”

Mr Purchase KC submits that the word “must” now appearing in [94] is so rigid as to amount to a fetter on discretion. The obligation in section 140 of the 2000 Act is to arrange for an assessment in the last year of schooling. Thereafter, the Welsh Government has a discretion. The policy is guidance. A section 140 assessment was arranged in this case. Adopting the approach of DJ, in my judgment, the new wording of [94] does not describe a rigid requirement which must be met but must be read flexibly to ensure fair and equitable treatment of young people on a case-by-case basis. In order words, the Welsh Government retains a discretion whether to require an updated section 140 assessment when considering requests for further funding under [94] of the policy.