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Welsh policy on FE provision for young people with learning difficulties "lawful"

Welsh ministers and the quango Careers Wales did not act unreasonably when they decided not to reassess the educational and training needs of a young man with a learning disability, a High Court judge has ruled.

DJ challenged the decision by the Welsh ministers in June 2018 not to reassess his needs for an additional course following his successful completion of a third year of study at a specialist residential college of further education, co-funded by the Welsh Government and Cardiff City Council.

He also challenged Careers Wales' refusal to apply to the Welsh ministers to fund an additional course for him at the college.

His case was originally that the ministers’ decision was in breach of their statutory duty under s.41 of the 2000 Act to provide reasonable facilities for the education and/or training of persons under the age of 25 who have learning disabilities, and that Careers Wales misdirected itself as to the contents of the relevant policy, "Securing provision for young people with learning difficulties at specialist further education establishments" (April 2017).

DJ later sought by an unopposed amendment to challenge the validity of the policy itself, arguing that it unlawfully fettered the Welsh ministers' discretion under s.41(3) of the 2000 Act.

Giving judgment in DJ, R (On the Application Of) v Welsh Ministers & Anor [2018] EWHC 2735, Mrs Justice Andrews said the policy was lawful and “the Welsh ministers' discretion was exercised lawfully and rationally, and Careers Wales was not bound to submit an application to the Welsh ministers for funding an additional course of study at Coleg Elidyr in circumstances where the Welsh ministers had lawfully refused to agree to a further assessment”.

She said even were she wrong judicial review would be refused since the outcome for DJ would have been substantially the same had the application been made.

The judge said DJ’s successful completion of the original funded course, “is not a situation which would justify a departure from the normal position on funding, because there is nothing about it that is exceptional.

“It is no different from the position that is expected to arise when the course has been completed. If that situation were to be treated as a sufficient basis for applying for further assessment under s.140(3), it would drive a coach and horses through the underlying policy, as it would mean that any young person who had successfully completed their 2 year (or 3 year) course…could demand a fresh assessment of their current educational and training needs with a view to making an application for funding for a further course as a matter of routine.”

Mark Smulian