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Court of Appeal rejects claim over failure to reassess educational needs of 22-year-old disabled man

The Court of Appeal has upheld a High Court ruling that 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.

In DJ v The Welsh Minister & Ors [2019] EWCA Civ 1349 Lady Justice Simler, with whom Lord Justice Baker and Lady Justice King agreed, dismissed the appeal by DJ, brought by his mother and litigation friend AJ.

DJ is 22 and has severe and complex learning difficulties, and has been assessed by Cardiff City Council as lacking capacity within the meaning of the Mental Capacity Act 2005.

He successfully completed a three-year programme at Coleg Elidyr and his parents would like him to continue there until 2022.

Welsh ministers though refused to reassess his educational and training needs and Careers Wales refused to apply to the ministers to fund an additional course of study for DJ at the college.

In the High Court case DJ argued 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,

He later challenged the validity of the policy itself, arguing that it unlawfully fettered the Welsh ministers' discretion under s.41(3) of the 2000 Act.

Mrs Justice Andrews found the policy lawful and decided “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”.

Hearing the appeal Simler LJ said Andrews J had been correct.

She said: “The 2000 Act however, leaves it open to the Welsh Ministers to determine how to discharge their statutory duty; i.e. what precisely to provide by way of reasonable and suitable facilities for those aged 19 and over, provided the mandatory considerations are taken into account in answering that question.

“The mandatory considerations involve a weighing of considerations about what facilities are available or might be secured elsewhere, what skills are needed and available, and the needs of a person with learning difficulties. In other words, there is, under the 2000 Act, a social, economic and needs-based judgment to be exercised in reaching a discretionary decision about funding education and training.”

Simler LJ said there could be “no objection by reference to the 2000 Act or otherwise, to the Welsh Ministers promulgating one or more policies that explain how they will exercise their powers and duties under ss.31 to 34 and 41 of the 2000 Act, and no objection is taken”.

She said there was nothing unlawful in the parts of the policy that DJ challenged, which “articulate exceptions to the general policy of providing funding for two years only…nothing in the language used precludes the Welsh Ministers from exercising their residual discretion in an appropriate case that would justify a departure from the normal two-year funding policy”.

The Court of Appeal judge added: "Nor is there a threshold, still less an inflexible threshold created by the phrase 'very exceptional' in the second example given. The impugned phrase merely signifies that the second recognised exception will rarely arise. Finally, the Welsh Ministers considered the application for an updated assessment in DJ's case lawfully and properly, and their decision cannot be impugned on public law grounds."

Mark Smulian

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