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

This ground is advanced in various ways, including that the Welsh Government discriminated against James by requiring a section 140 assessment before considering funding, by refusing to update such assessment, by the way it applied the policy to James, and by being in breach of sections 15 and 20 of the 2010 Act and A2P1. The first limb of this challenge fails for reasons just given.

In my judgment the Welsh Government’s response dated 28 November 2024 is flawed and discriminatory in the following respects.

First, in referring to “meet the criteria,” that can only sensibly refer to the policy, which as I have already found, is to be read flexibly and in a way which leaves the Welsh Government with a discretion. This wording strongly suggests that the policy, which is no more than guidance, has been improperly elevated to setting rigid criteria which must be met.

Second, that wording also strongly suggests that the principles set out in the policy and in DJ ofequitable treatment of young people such as James on a case-by-case basis were lost sight of.

Third, the reference to the ability to continue learning not amounting to an exceptional reason to call for an assessment misunderstands the case for James. It was not simply the ability to continue learning. The case was that the Skills for Life programme was essential to progress to the long-term goals set out in the original section 140 assessment, with the further development of employability skills being a central tenet of that programme. Mr Purchase KC submits that it is clear from the wording of the letter that the psychologist report was not read. That would be a surprising finding, but somewhat surprisingly Ms Wharf does not address this in her witness statement. For present purposes, it suffices to say that even if read, it was misunderstood.

Fourth, in referring to “insufficient evidence” to justify a further assessment, there was no indication of how the evidence was said to be insufficient nor was there any inquiry as to further evidence.

In my judgment, ground 1 is, to that extent, made out. The findings set out in paragraphs 51 to 55 above are sufficient for the claim to succeed. In my judgment the decision of 28 November 2025 cannot stand. That being so, as Mr Purchase KC submits, which particular elements are made out in the various ways the grounds are put becomes less important. For the sake of completeness, I shall refer to some of them, albeit briefly. The most apposite element of ground 1 is that because of these flaws, James was treated unfavourably within the meaning of section 15 of the 2010 Act as a consequence arising out of his disability. It is agreed that it is not necessary to show comparators for the operation of that section. No evidence has been shown that this approach was a proportionate means of pursing a legitimate aim. Reference is made in the evidence of the Welsh Ministers to cost- but the evidence does not go into detail. I am not satisfied that there has been a fair balancing between the rights of James and the interests of the community.

Reference to comparators is necessary in respect of section 20 of the 2010 Act. The evidence relating to comparators was not altogether satisfactory. That adduced on behalf of James suggest that it is not uncommon for learners without disability to have funding for more than an extra two years. That is disputed by the Welsh Ministers, who also point out that that evidence refers to such learners who would need and be able to fulfil entry requirements for this further learning. In the end this may not matter, because as Mr Purchase KC submits, the need for James for additional learning is to bring him to entry level in terms of employability and greater independent living. If necessary, I would also hold, for the reasons given above, that reasonable adjustments were not made for James in coming to the 28 November 2024 decision.

I am not persuaded that these flaws also amount to a breach of Article 14 and A2P1. James has had and continues to have an education. The claim does not easily fit into the reference to religious or philosophical convictions.