The Department for Education could face legal action over its plans to establish Oak National Academy as a new arm’s-length national curriculum body.
Today, the British Educational Suppliers Association (BESA) informed education secretary Nadhim Zahawi that it is considering seeking a judicial review over what it calls the DfE’s “unlawful” decision on Oak.
In March of this year, Tes revealed that Oak was to be made into a new government arm’s-length body designed to provide free curriculum resources to schools across the UK. BESA had previously warned the DfE over what it described as a lack of “due process” on the plan.
BESA today said it believes the step has been taken “without lawful and proper consultation, without conducting the necessary impact assessments on schools or the educational services market, and in contravention of established procurement rules”.
The association also believes that the proposed new body “in effect amounts to a public subsidy that breaches UK and EU law”.
Caroline Wright, director general of BESA, said the organisation had been reluctant to take this step but felt it had little choice.
She said that before the announcement, the DfE had “excluded BESA and its members from meaningful consultations over the long-term future of Oak”.
Ms Wright also said the department had “consistently failed to explain” why turning Oak into a government-approved curriculum body “was appropriate, or indeed commissioned up-to-date research evidence that this is what schools want or need”.
Today, in a letter sent to the education secretary, legal firm Freeths - which is representing BESA - set out the proposed claim for a judicial review.
Freeths said its client claimed that, despite “numerous requests by BESA, no information has been provided about the decision-making process, including why an ALB is considered necessary rather than other alternative policy solutions”.
BESA is also concerned over the DfE’s rejection of requests for a copy of the business case for the new Oak.
In the letter, Freeths said that BESA takes the following issues:
- The secretary of state has failed to comply with relevant policy and guidance in deciding to set up the proposed ALB.
- The decision to establish a new ALB has been taken without proper assessment and consideration of the impact on the educational services market in the UK.
- The provision of public funds to the proposed new body amounts to a public subsidy that has not been shown to comply with the subsidy control principles.
- The secretary of state has embarked on a consultation process that unfairly and unlawfully excluded BESA and/or has not provided sufficient information to enable BESA on behalf of its members to respond properly to the proposals.
- BESA is, separately, concerned that the principle of equal treatment is being breached by pre-procurement discussions with selected providers.
BESA has said it is “concerned” that the DfE “has not followed the guidance in relation to ALBs, and that the decision to establish the proposed ALB is accordingly unlawful”.
BESA is therefore concerned that the funding of the proposed ALB will breach the subsidy control principles set out in the Department for Business, Energy and Industrial Strategy guidance, and will be unlawful for that reason.
In the letter, Freeths also requested that the DfE provided copies of several documents as soon as possible, including submissions to ministers relating to the proposed new national curriculum body.
Freeths said it expected a reply to the letter by 30 May 2022.
Ms Wright said: “We are extremely disappointed to have to take such a step but the government’s failure to engage with and address our members’ concerns meant that we had no other option.”
However, Ms Wright stressed that the association’s actions “are in no way a comment on the valuable work” Oak had done “to support schools during the pandemic”.
Ms Wright said it was clear from the White Paper that the DfE has ambitions far beyond those envisaged when the platform was first established.
She said “such a state-backed, centralised approach” could “not only curtail teacher autonomy and undermine schools’ ability to use the resources and content that they judge most appropriate, but it also has enormous implications for our members”.
She added that it would “unfairly replicate” the resources “produced by hundreds of UK businesses, stifle innovation and threaten the commercial viability of one of the country’s fastest-growing and most internationally renowned sectors”.
Ms Wright also claimed that “hundreds of millions of pounds of investment and hundreds of jobs have been put at risk unnecessarily by the anti-competitive actions of the DfE”.
Ms Wright said BESA is keen to continue talking with the DfE and has a genuine desire to seek a resolution without court intervention but that, for now, the department should put its plans for Oak on hold.
“BESA believes the decision to establish Oak as a national curriculum body is unlawful and we believe the appropriate course of action in the circumstances is for the secretary of state to pause the process pending a proper consultation,” she said.
A Department for Education spokesperson said the decision to create an arm’s length body that “will support teachers to deliver excellent lessons and build on the success of Oak National Academy” had been taken “following careful consideration”. The spokesperson added that the DfE was “confident that due process had been followed”.
The spokesperson said the DfE had met with BESA “and other trade organisations on a number of occasions over recent months to share our thinking” and that the department will “continue to engage with stakeholders on this policy”.
“Market engagement is an important part of this process and we welcome views from the sector on our proposals.”
