The High Court has given its approval for three organisations to pursue legal action against the government’s decision to establish Oak National Academy as an arm’s-length body (ALB).
A statement today by the organisations said that the High Court had granted permission for a legal challenge brought by the British Educational Suppliers Association (BESA), the Publishers Association and the Society of Authors.
The NEU teaching union has also publicly supported the claim.
In response, the Department for Education said it is “disappointing” to see businesses operating in the education sector “seeking to undermine plans”, which it said are “in the best interests of pupils up and down the country”.
Caroline Wright, director general of BESA, said that she was “sad that there has been a need to take this action against the DfE” but that “enough was enough”.
A statement of facts and grounds says the claimants consider the education secretary’s actions unlawful on two bases.
The first is that the government’s assessment of the impact of Oak on the market is “fundamentally flawed”. The second is that the claimants believe funding of Oak is “an obvious state subsidy” and that the DfE has taken “no steps to render that subsidy lawful”.
‘Unprecedented and unevidenced’
A spokesperson for the co-claimants said today that they welcomed the High Court’s decision and said that “these concerns deserve a proper hearing”.
They said: “The government’s current plans for Oak are an unprecedented and unevidenced intervention that risks causing irreparable damage to the school sector as we know it.
“It puts unnecessary strain on already stretched public funding for education - soaking up £45 million of public money that could otherwise be given to schools directly.”
The spokesperson added that education providers cannot ”compete fairly” with Oak.
The news comes almost a year after a formal judicial review claim was lodged.
And it follows long-running concern over the establishment of online provider Oak National Academy as a government quango.
The government launched Oak as an ALB alongside £43 million in funding over three years in September 2022.
Earlier this month, the long-awaited government business case for Oak was published by the Cabinet Office, with the document claiming that there were “two main curriculum problems” in England’s schools: “weaknesses in curriculum design and delivery, as reported by Ofsted; and excessive teacher workload associated with curriculum planning”.
‘Unwanted and expensive white elephant’
Ms Wright said: “I am sad that there has been a need to take this action against the DfE but after six successive secretaries of state for education have ignored the concerns raised over their flawed plans for Oak and chosen to press ahead with their flawed plans for Oak, enough is enough.”
“I hope the High Court’s decision acts as a wake-up call to ministers and I urge Gillian Keegan to call time on this unwanted and expensive white-elephant Oak project and redistribute the £43 million funding directly to schools where it is so desperately needed.”
A DfE spokesperson said: “It is disappointing to see businesses operating in the education sector seeking to undermine plans that have been designed by teachers, are in demand from teachers, and ultimately are in the best interests of pupils up and down the country.
“We are satisfied that we’ve followed due process throughout. We value the importance of a competitive commercial market and so it will always be teachers who choose whether or not to use Oak’s or any other provider’s materials.”
Reduce teacher workload
A spokesperson for Oak National Academy said: “We remain totally focused on serving the needs of teachers, pupils and schools. They greatly value the support of Oak.
“Our independent evaluation shows that exploring evidence-informed curriculum models and having high-quality resources alongside them reduces teacher workload and improves expertise, wellbeing and retention.”
“We want to continue to see a thriving market and we work with a range of commercial providers to develop and improve our resources. Our research has found teachers don’t use Oak exclusively - instead mixing with other providers - and our resources will always be entirely optional.”
A spokesperson from the NEU said: “The NEU considered joining the present High Court judicial review as an interested party. However, following counsel’s advice on what is a complex area of the law we recognised that an application to join the proceedings on this basis was unlikely to succeed.”
However the union said it continued to “fully support” the judicial review and remained “firmly opposed” to Oak as a “national curriculum body and vehicle to impose the Government’s curriculum vision on schools.”
Geoff Barton, general secretary of the Association of School and College Leaders, said: “We have long been concerned about the impact that Oak National Academy may have on the viability of other publishers.
“Schools benefit from having access to a wide range of resources and any reduction in the diversity of materials available would be a retrograde step. This review will provide proper scrutiny over the use of taxpayers’ money that has been sorely lacking up to this point.”
