DJ, R (On the Application Of) v Cardiff City Council & Anor

A policy governing public funding may identify the circumstances that will ordinarily justify departing from a general funding position, including stringent or very exceptional circumstances, provided it preserves a genuine residual discretion. Illustrative examples must not be treated as exhaustive criteria. A decision-maker may consider the prospects and utility of a further statutory assessment when deciding whether to permit one, provided the assessment remains a matter of discretion and the policy is applied consistently with the statutory scheme. Successful completion of an agreed further-education programme, with the expected progress, does not ordinarily justify routine further funding. Judicial review relief may be refused where the outcome would inevitably have been substantially the same.

The claimant, a young adult with severe learning difficulties, challenged the Welsh Ministers’ refusal to permit a further assessment under section 140(3) of the Learning and Skills Act 2000 after he completed a funded specialist further-education course. He also challenged Careers Wales’ refusal to submit an application for funding for an additional programme of study.

The claimant and an interested party argued that the Welsh Government policy unlawfully fettered the Ministers’ statutory discretion by restricting further funding to exceptional cases. The court also considered rationality, the statutory duties concerning persons with learning difficulties, and whether Careers Wales was required to submit an application without an updated assessment.

1. The claim was dismissed. The Welsh Ministers lawfully refused permission for a further assessment under section 140(3) of the Learning and Skills Act 2000. Careers Wales was not required to submit an application for additional funding in circumstances where a further assessment had lawfully been refused. In any event, the relief sought would have been refused because the funding application would have failed and the outcome would have been substantially the same.
2. A section 140(3) assessment is discretionary. Where an earlier assessment and Learning and Skills Plan have identified the young person’s educational and training needs and the provision intended to meet them, a further assessment may properly consider whether those needs have been met or have materially changed. The prospect that a later funding application would succeed is relevant to whether a fresh assessment would serve a useful purpose.
3. The policy was not an unlawful fetter. Its general position was that funding would ordinarily be limited to a single programme of two years, or exceptionally three years, with further programmes funded only in recognised exceptional circumstances. Paragraphs 92 and 93 described broad categories and illustrative examples; they did not impose mandatory or exhaustive criteria. The words “usually” and the policy’s residual discretion preserved the decision-maker’s ability to consider other cases on their merits.
4. The approach was consistent with the statutory duty to secure reasonable facilities for further education and training, having regard to the needs of persons with learning difficulties. The statutory scheme did not require educational and training needs to be fully satisfied until age 25, nor did it require the Welsh Ministers to fund the individual’s preferred course or duration. Personal outcomes, such as independent living, were distinct from the educational and training needs identified in the assessment.
5. On the facts, DJ’s successful progress was expected under the original Learning and Skills Plan and did not amount to the exceptional change required to justify a further assessment. His continuing needs and incomplete personal outcomes did not alter that conclusion, particularly as Cardiff City Council had responsibilities under the Social Services and Well-being (Wales) Act 2014.
6. Paragraphs 40 and 95 of the policy did not require Careers Wales to submit a futile application where the Welsh Ministers had already rationally refused permission for an updated assessment. Alternatively, even if such an application were required, no useful relief could be granted.