DJ v The Welsh Minister & Ors

A public authority may lawfully adopt a policy to guide the exercise of a statutory discretion, provided that the policy is construed as a whole and does not prevent consideration of cases within the statute but outside the usual rule.

Under the Learning and Skills Act 2000, Welsh Ministers retain a broad social, economic and needs-based judgment when securing reasonable educational facilities. A policy stating that additional specialist education will usually not be funded unless specified circumstances arise preserves a residual discretion for other appropriate cases. Describing one category as involving “very exceptional circumstances” may signify rarity without creating an elevated or inflexible legal threshold.

DJ, a young adult with severe and complex learning difficulties, completed a three-year specialist further-education programme funded by the Welsh Ministers and Cardiff City Council. He sought a further programme at the same college. Careers Wales requested an updated assessment under section 140(3) of the Learning and Skills Act 2000, relying on DJ’s progress, but the Welsh Ministers declined to arrange one. Careers Wales then declined to submit a funding application.

Andrews J dismissed DJ’s judicial review on 19 October 2018. DJ appealed, contending that paragraphs 92 and 93 of the Welsh Government policy unlawfully fettered discretion and imposed an excessive threshold, and that they had been applied rigidly in his case.

1. Appeal dismissed unanimously. Lady Justice Simler, with whom Lord Justice Baker and Lady Justice King agreed, held that the Welsh Ministers’ statutory duty under sections 32 and 41 of the Learning and Skills Act 2000 was to secure reasonable and suitable facilities for the relevant cohort, while having regard to the needs of persons with learning difficulties and relevant assessments. The legislation left the Ministers to make a broad social, economic and needs-based judgment, subject to mandatory considerations.
2. A public authority could lawfully formulate a policy to guide that judgment. Such a policy promoted fairness, consistency, efficiency and transparency, but could not be framed absolutely so as to exclude a person who fell within the statute: British Oxygen Co Ltd v Board of Trade [1971] AC 610. The general two-year funding policy was lawful and unchallenged.
3. Read objectively and as a whole, paragraphs 92 and 93 did not exhaust the circumstances in which an additional programme might be funded. The word “usually” preserved a residual discretion even where neither stated category was met. The examples were illustrative, not exhaustive. The policy therefore did not unlawfully fetter the statutory discretion or prevent individual consideration.
4. “Very exceptional circumstances” did not impose a separate elevated threshold. In context, it indicated that the second recognised category would rarely arise. The policy and Technical Guidance did not confine possible change to a deterioration; a sufficiently unusual positive change could also justify a further assessment.
5. The Welsh Ministers had considered DJ’s individual evidence, sought further information, and lawfully concluded that his good progress was the anticipated outcome of the agreed three-year programme. It did not show a change sufficient to require a further section 140(3) assessment. The refusal was neither rigid nor unlawful on public law grounds.

• Court of Appeal (Civil Division): In [2019] EWCA Civ 1349, dismissed DJ’s appeal.
• High Court: Andrews J dismissed DJ’s application for judicial review on 19 October 2018.