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

It was not in dispute that the statutory regime which applies to James is set out in the 2000 Act as referred to in the responses. The relevant sections are set out below:

“32 Education and training for persons over 19.

(1)

The Welsh Ministers must secure the provision of reasonable facilities for— (a) education (other than higher education) suitable to the requirements of persons who have attained the age of 19, (b) training suitable to the requirements of such persons…”

(3)

In performing the duty imposed on them by subsection (1) the Welsh Ministers must— (a) take account of the places where facilities are provided, the character of facilities and the way they are equipped; (b) take account of the different abilities and aptitudes of different persons…

34 Provision of financial resources.

(1)

The Welsh Ministers may secure the provision of financial resources to— (a) persons providing or proposing to provide post-16 education or training…

41 Persons with learning difficulties additional learning need.

(1)

In discharging its functions under sections 31, 32 and 34(1)(a) to (d) and (g) the Welsh Ministers must have regard— (a) to the needs of persons with learning difficulties, and additional learning needs…”

Section 140, which it is accepted applied and still applies to James, materially provides:

“140 Assessments relating to learning difficulties: Wales

(1)

Subsection (2) applies if— (a) a local authority in Wales maintains a statement of special educational needs for a person under section 324 of the Education Act 1996, and (b) the Welsh Ministers believe that the person will leave school at the end of his last year of compulsory schooling to receive post-16 education or training (within the meaning of Part 2 of this Act) or higher education (within the meaning of the Education Reform Act 1988).

(2)

The Welsh Ministers must arrange for an assessment of the person to be conducted at some time during the person’s last year of compulsory schooling.

(3)

The Welsh Ministers may at any time arrange for an assessment to be conducted of a person—

(a)

who is in his last year of compulsory schooling or who is over compulsory school age but has not attained the age of 25, (b) who appears to the Welsh Ministers to have a learning difficulty (within the meaning of section 13), and (c) who is receiving, or in the opinion of the Welsh Ministers is likely to receive, post-16 education or training (within the meaning of Part 2 of this Act) or higher education (within the meaning of the Education Reform Act 1988).

(4)

For the purposes of this section an assessment of a person is an assessment resulting in a written report of— (a) his educational and training needs, and (b) the provision required to meet them.”

The regime has now been changed to make improved provision for education of those with additional learning needs by the Additional Learning Needs and Education Tribunal (Wales) Act 2018, which is being implemented in a staged process, beginning in 2021. That allows priority to be given younger learners and to stagger the extra financial burden imposed on local authorities by making such provision. James falls in the last cohort to which these provisions will apply from September 2025. Mr Purchase KC, for James, made clear before me that there is no challenge as such to the staged implementation, but he relies upon it as context which may inform the approach which should have been taken in respect of James. Initial complaints on James’ behalf may have suggested otherwise, and Mr Friel on behalf of the Welsh Ministers submits that nevertheless the grounds of challenge are in reality a thinly disguised attack on such staged implementation. I prefer the categorisation of Mr Purchase KC as one of context to the discrimination grounds.