Claimant wins challenge over Welsh Government refusal to fund further education

In Humphries, R (On the Application Of) v The Welsh Ministers [2025] EWHC 2196 (Admin) (22 August 2025), His Honour Judge Jarman KC concluded that the young man was “treated unfavourably” within the meaning of section 15 of the 2010 Equality Act as a consequence arising out of his disability, and that therefore the decision of 28 November 2024 could not stand.

The case concerned a young man, referred to in the judgment as James.

Introducing the case, HHJ Jarman said: “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, 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.”

The Welsh Government accepted that recommendation and funded that placement, where James made good progress.

At a destination planning meeting at the Coleg in June 2024, it was concluded that James would continue to make more progress if he stayed at the Coleg and enrolled in the Coleg's ‘Skills for Life Programme’.

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”.

HHJ Jarman noted: “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.”

He outlined the following passage from the Welsh Government’s 28 November 2024 response as follows:

"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.”

Turning to the relevant principles relating to discrimination on the grounds of disability, the judge noted: “As Mr Purchase KC [for the claimant] 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."

He added: “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."

“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.”

The claimants submitted four grounds. The first was based on discrimination, the second on the public sector equality duty (PSED), the third based on ‘exceptionality and duty to inquire’ and the fourth on ‘discretion’.

Considering them in turn, HHJ Jarman said: “In my judgment the Welsh Government's response dated 28 November 2024 is flawed and discriminatory in the following respects.

“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.

“Second, that wording also strongly suggests that the principles set out in the policy and in DJ [R(DJ) v Welsh Ministers & Anor [2019] EWCA Civ 1349] of equitable treatment of young people such as James on a case-by-case basis were lost sight of.

“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.

“[…] 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.”

On ground 1, he concluded: “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 2024 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.”

Turning to ground 2, the breach of PSED, the judge accepted counsel for the claimant’s point that just because additional leaning needs were being considered, it cannot be assumed that the PSED was complied with.

However, he said: “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.”

He added: “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.”

On ground 3, the judge observed that the Welsh Government should have made inquiries as to what was regarded as “insufficiency of evidence”.

Finally, on ground four, he briefly observed that “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.”

Allowing the claim, the judge invited counsel to attempt to agree a draft order with any further directions, and to file the same within 21 days of hand down on the judgment.

He said: “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.”

Lottie Winson