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

Before I turn to the grounds of challenge in the present proceedings, I shall deal with three preliminary matters raised by the Welsh Ministers. The first is delay. Mr Friel referred to an email from James’ mother to the Welsh Government in February 2024 which includes this passage:

“After December 2024 we want James to stay on at Elidyr and complete the Skills for Life programme however Social Services in Cardiff want to bring James back to Cardiff and put him in Supported Living. We don’t feel that James is ready for supported living as he will only just have turned 20 in November. He will benefit greatly from another year in Elidyr. We have visited the provision in Cardiff and it’s not suitable for James. James is getting all his needs met in Elidyr and Social Services in Cardiff can’t offer what Elidyr offers for James…

The ALN Act which entitles young, disabled adults to an education up to 25 years old was approved to start straight away in England but for some reason in Wales it won’t come into effect until September 2025 (against parliament’s wishes) which sadly means James is going to miss out on this opportunity if he doesn’t stay an extra year in Elidyr.”

Mr Friel submits that the issues now raised were known about in February 2024 and as the claim was issued on 5 December 2024, it was not made promptly and, in any event, not within three months after the grounds to make the claim first arose as required by CPR 54.5(1).

In response Mr Purchase KC makes the point that the challenge is essentially to the refusal to update the section 140 assessment or to fund the Skills for Life programme and that was not decided until the challenged decisions which were made within the three months prior to the claim being issued. Up until then these requests might have been agreed. He submits that the primary challenge is to the decisions of the Welsh Government in September and November 2024, and that insofar as the policy is challenged the grounds for bringing the claim first arose when James was affected by the policy not when made: see R (Badmus) v Secretary of State for the Home Department [2020] EWCA Civ 657 [2020] 1 WLR 4609 [76-77].

I have already dealt with the proper reading of the policy, and also with Mr Friel’s point that the underlying challenge is to the 2018 Act. It may be that that point informs his submissions on delay. In any event, in my judgement the grounds first arose in September and December 2024. There was no separate point taken as to promptitude within the three-month deadline, but I am satisfied that given the importance and factual/legal complexities of the claim, the claim form was filed promptly.

The second preliminary point is the availability of an alternative remedy, namely the informal appeal process which is provided for in the policy at [99-100]. That provides that an appeal can be submitted challenging a decision made by the Welsh Government on an application for funding, a request for change (s) within an agreed programme of study, a request to fund an extension to an agreed programme of study or a request to undertake or update a section 140 assessment.

An appeal was submitted in due form on behalf of James, which ticked the three relevant boxes showing the three relevant decisions which were being challenged. The form was accompanied by lengthy grounds drafted by his solicitor, which included the following:

“James’ appeal is not solely focused on the areas referred to in paragraph 3 of the appeal form document published on the WG’s website. The appeal centres also on the irregular process followed by the WG in the run-up to making its decision on the 28 November 2024 and addresses the decision made which is to refuse James his application for additional education to be afforded to him at his current place, Coleg Elidyr (“the college”).”

By email dated 23 December 2024 the appeal was rejected by an additional learning needs support officer on the following grounds:

“On review of the appeal form, we note that more than one option for the appeal to be considered has been identified. As noted above, the decision made relates to “a request to undertake or update a section 140 assessment”. No application for funding has been made by the Claimant, nor has there been a request to fund an extension to an agreed programme of study. The basis on which the current appeal form has been submitted is therefore considered inaccurate…

We further note the letter accompanying the appeal application form seeks to extend the parameters of the appeal process to consider matters you seek to be simultaneously determined by the High Court pursuant to the judicial review proceedings that have been instituted against the Welsh Ministers. Any appeal system is necessarily limited in its parameters and the Welsh Government has published guidance in respect of the appeal system for challenging decisions taken in respect of the funding provision for young people with learning difficulties at specialist further education establishments.”

That response seems to be inaccurate in saying that the decision only relates to a request to undertake an updated section 140 assessment. As Mr Purchase KC submits, the policy does not set down parameters and the appeal was bound up with funding and the lawfulness of decision making, but he accepts that the appeal process cannot determine all the points in dispute in this claim. Accordingly it is not “conveniently and effectively available” as judicial review proceedings (Watch Tower Bible & Tract Society of Great Britain v Charity Commission [2016] EWCA Civ 154 paras [191]) or “equivalently efficacious” (R (JP) v. Croydon Clinical Commissioning Group [2020] EWHC 1470 [9]) Finally, he submits, the nature and importance of the issues raised mean that there is a compelling reason for the claim to be heard by way of judicial review.

I accept those submissions of Mr Purchase KC. In my judgment, whilst accepting that an informal appeals procedure may provide an alternative remedy, on the particular facts of this case, it did not.

Having said that, Mr Friel made clear in his submissions that the Welsh Government would still accept an appeal form, and in response to a question from me replied that that was so irrespective of the outcome of these proceedings. I encouraged the parties to consider engaging in that process even now, as it might provide a speedier and pragmatic outcome than, ultimately, might these proceedings.

The third preliminary point taken is that the letter dated 6 September 2024 does not amount to a justiciable decision but merely advises on the way to make a request to update the section 140 assessment. In my judgment that letter needs to be read in the context of the letter it was responding to from James’ solicitor. That included the clear wording that there would be no objection to such an update. It is true that the solicitor’s letter went on to say why it was considered that none was necessary. However, in context the response was setting out the requirements and procedures for something that was not objected to. Accordingly, I find this preliminary point in favour of the Welsh Ministers.