James Humphries, R (on the application of) v The Welsh Ministers

HHJ JARMAN KC: Introduction

1. The claimant is a protected party and brings these judicial review proceedings by his mother and litigation friend. He is now 20 years old and has very substantial additional learning needs. At permission stage and again at the outset of the substantive hearing I raised the issue of whether an anonymity order was appropriate, but on each occasion I was told that no application was made because relevant details of his needs are already in the public domain. Accordingly I shall, with respect, refer to him in this judgment as James.

2. James attended a specialist school in Cardiff, where his family live, until he was 18 years old. As he was reaching the end of his education there, the first interested party, Cardiff County Council (the Council), carried out a social care assessment of his needs, which was finalised in 2023. At about the same time, the Welsh Government also carried out an assessment under section 140 of the Learning Skills Act 2000 , which recommended a placement on a two year Foundation Learning programme at Coleg Elidyr (the Coleg), which has a long-term goal of moving on from pre-entry level to entry levels and developing higher levels of independence.

3. The Welsh Government accepted that recommendation and funded that placement. James made good progress. This was summarised at a destination planning meeting at the Coleg in June 2024. James had achieved a bronze Duke of Edinburgh award. He was taking part in social activities and exercise with housemates. He had established skills in hygiene, improved word recognition and better skills at travelling in his community. The meeting concluded that he would continue to make more progress if he stayed at the Coleg and he would be set targets moving into entry level. This would be achieved through the Coleg’s Skills for Life Programme.

4. In August 2024, solicitors on behalf of James wrote to the Welsh Government seeking additional funding for this programme, on the basis that his section 140 assessment taken together with additional assessments gave sufficient justification. By reply sent on 6 September 2024, it was indicated that further funding would not be considered without a further section 140 assessment, and directed the solicitors to Careers Wales, an educational limb of the Welsh Government, to request one. This was done, but by letter sent on 28 November 2024 the Welsh Government refused to allow a further assessment and relied upon its policy only to fund further education over two years in exceptional circumstances. It is these three elements of those letters which are challenged in these proceedings, on the basis that no proper regard was had in making these decisions to James’ disabilities and that too rigid an interpretation was put on the policy. Each of these challenges are disputed on their merits, but also because of delay and because the policy in question allowed an informal appeal which has not been pursued. Background

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

6. 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.

7. 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”

8. 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.”

9. 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…”

10. 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…”

11. 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.”

12. 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. Education- statutory framework

13. 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…”

14. 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.”

15. 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. Education -policy

16. 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.

17. 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.”

18. 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.”

19. 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.”

20. 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.”

21. 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).”

22. 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.

23. 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.”

24. 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. Discrimination-legal principles

25. I now turn to the relevant principles relating to discrimination on the grounds of disability. As Mr Purchase KC submits, there are different forms of discrimination, each with their own legal requirements and it may not matter which applies. The key question is often whether different treatment or differential impacts on disabled people have been shown by the defendant to be a proportionate means of achieving a legitimate aim. That is illustrated by section 15(1) of the Equality Act 2010 , which provides: “(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”

26. Section 20 sets out three requirements in relation to disabled people, one of which states: “(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

27. Section 149 sets out the well-known public sector equality duty (PSED), and disability is one of the protected characteristics: “(1) A public authority must, in the exercise of its functions, have due regard to the need to—” (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act ; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. (2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1). (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. (4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities. (5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) tackle prejudice, and (b) promote understanding. (6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act .”

28. Article 14 of the European Convention of Human Rights (ECHR) provides: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

29. One such right is set out in article 2 of the first protocol to the ECHR: “No person shall be denied a right to an education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions.”

30. There are many authorities dealing with these provisions. There was little disagreement before me about their application to the facts of the present proceedings, so I need refer to only a few of the authorities cited.

31. Starting with section 15 of the 2010 Act , the threshold of disadvantage to trigger the requirement to justify under the section is relatively low, see Williams v Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65 , [2018] 1 WLR 93 . Lord Carnwath at [27] also observed that little is likely to be gained by narrow distinctions between the word "unfavourably" in and words such as "disadvantage" or "detriment" in other provisions, nor between an objective and a "subjective/objective" approach. section 15

32. When determining whether justification is shown, appropriate respect must be accorded to the Welsh Government as the primary decision maker, see R (Tigere) v. Secretary of State for Business [2015] UKSC 65 , [2015] 1 WLR 3820 [32]. In the following paragraph, Lady Hale set out the tests for determining justification: “33. With those considerations in mind, I turn to the issue of justification. It is now well-established in a series of cases at this level, beginning with Huang v Secretary of State for the Home Department , and continuing with [2007] UKHL 11 , [2007] 2 AC 167 R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) , and [2011] UKSC 45 , [2012] 1 AC 621 Bank Mellat v HM Treasury (No 2) , that the test for justification is fourfold: (i) does the measure have an legitimate aim sufficient to justify the limitation of a fundamental right; (ii) is the measure rationally connected to that aim; (iii) could a less intrusive measure have been used; and (iv) bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?” [2013] UKSC 39 , [2014] AC 700

33. I turn now to the principles in relation to the PSED. Mr Friel submits that this is more relevant to the formulation of policy, but Mr Purchase KC submits that it also applies to individual decisions. He relies on Pieretti v. Enfield LBC [2011] EWCA Civ 1104 , [2011] 2 All ER 642 . At [26] Wilson LJ, giving the lead judgment of the Court of Appeal dealt with the predecessor of section 149 of the 2010 Act , namely section 49 of the Disability Discrimination Act 1995 . At [27] he said this: “The duty in applies both when the local authority is drawing up its criteria and when it applies them in an individual case, both of those being an aspect of carrying out its functions”: per Black J in s.49 A R (JL) v. Islington LBC , at [114]. There is no scope for depriving the word “functions” of much of its normal meaning. There would, for example, be no need for [2009] EWHC 458 (Admin) , [2009] 2 FLR 515 of s.49 C(3)(a) the Act of 1995 to exclude the application of from acts done in connection with recruitment to the armed forces if the section did not apply in principle to individual decisions. Of course public bodies must factor their duty under s.49 A(1)(d) into the planning of their services; and it may well be that the section does not create new individual rights. The part of it with which we are concerned is designed to secure the brighter illumination of a person's disability so that, to the extent that it bears upon his rights under other laws, it attracts a full appraisal.” s.49 A(1)

34. In my judgment the functions which the Welsh Government carried out which are challenged in the present proceedings are functions to which the PSED applies.

35. There was little if any dispute about the other relevant principles, which were summarised by McCombe LJ in R (Bracking) v Secretary of State for Work and Pensions the Supreme Court in [2013] EWCA Civ 1345 [25]. This was one of the many authorities referred to by . That summary, for present purposes, may be further distilled as follows Hotak v Southwark London Borough Council [2015] UKSC 30 at [73] : a. Equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. b. An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements. c. The relevant duty is upon the decision maker personally who cannot be taken to know what officials know or what may have been in the minds of officials in proffering their advice. d. The decision maker must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a rearguard action. e. The duty must be exercised in substance, with rigour, and with an open mind. It is not a question of ticking boxes; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument. f. General regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria. h. It is not for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then it is for the decision maker to decide how much weight should be given to the various factors informing the decision.

36. The PSED requires a highly fact sensitive inquiry ( R (Hough) v SSHD [2022] EWHC 1635 (Admin) , [106 ]) and a rigorous consideration which requires the decision maker to have a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them ( R (Hurley & Moore) v SSBIS [2012] EWHC 201 (Admin) [77] ).

37. Steyn J in held that the PSED implies a duty of reasonable enquiry with a view to understanding the potential impact of a proposed decision on people with the protected characteristics. She accepted at [55] that the nature of the function being exercised, and the context, may have an important impact on what is required to fulfil the duty of enquiry. How the duty is complied with is subject to challenge only on R (Devonhurst Investments Ltd) v Luton BC [2023] EWHC 978 (Admin) Wednesbury grounds.

38. Mr Purchase KC also relies on the principle that discrimination arises where public authorities without an objective and reasonable justification fail to treat differently persons whose situations are significantly different: see Thlimmenos v Greece (2000) 31 EHRR 15 [44]. Preliminary matters

39. 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.”

40. 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).

41. 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].

42. 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.

43. 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.

44. 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”).”

45. 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.”

46. 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.

47. 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.

48. 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.

49. 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. Ground 1- discrimination

50. 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.

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

52. 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.

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

54. 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.

55. 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.

56. 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.

57. 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.

58. 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. Ground 2- breach of PSED

59. The next ground is breach of the PSED. I take Mr Purchase KC’s point that just because additional leaning needs were being considered, it cannot be assumed that the PSED was complied with. However, from a general point of view, in my judgment, it is likely that there was due regard to achieve the results identified in section 149(1) . There is no need to refer to the duty expressly.

60. The PSED also requires rigorous consideration in a highly fact sensitive process. In my judgment, the flaws identified in paragraph 51 to 55 above are such as to mean that in those specific ways the PSED was not complied with. Ground 3- exceptionality and duty to inquire

61. Again, it follows from those flaws which I have found that this ground is made out to that extent. The Welsh Government should have made inquiries as to what was regarded as insufficiency of evidence. It is noteworthy that Simler LJ in DJ made specific reference to the Welsh Ministers requesting Careers Wales for further information. In my judgment the same could easily have been undertaken in the case of James. Ground 4- fetter on discretion

62. Insofar as the 28 November 2024 letter recognised a discretion, in my judgment that discretion was fettered by elevating guidance in the policy to criteria which must be met, as I have already indicated. Conclusion

63. Accordingly, the claim succeeds in the ways set out above. The parties sensibly agreed that the issues of appropriate relief should await this judgment given the possible permutations. I hope that the parties will liaise once judgment is handed down with a view to agreeing appropriate relief.

64. I am grateful to counsel for their assistance. I invite them to attempt to agree a draft order with any further directions and to file the same within 21 days of hand down on this judgment. This should be accompanied by written submissions on any consequential matters which cannot be agreed, with an indication whether a further hearing on relief is sought.