Legal action against the Department for Education over its plan to establish Oak National Academy as a new arm’s-length body to provide curriculum resources has been paused at the eleventh hour, Tes has learned.
In a letter sent to British Educational Suppliers Association (BESA) members this week, seen by Tes, its director general, Caroline Wright, said BESA’s judicial review proceedings had been paused after the DfE admitted that it had not yet decided on crucial aspects of how the new body will be run.
The move comes after the organisation wrote to the education secretary, Nadhim Zahawi, last month to warn that it was considering seeking a judicial review.
In this week’s letter, Ms Wright says that while members are “overwhelmingly in support” of seeking a judicial review, BESA has decided to put the case on hold in favour of talks with the DfE.
Ms Wright tells BESA members that the decision has been taken because the DfE has told the organisation that, although it has made the decision to set up the arm’s length body in principle, the detail and substance of how it would run has “not yet been decided”.
She adds that the “substance” of how the arm’s length body would operate includes its parameters, funding and the nature of the content of resources to be provided.
Because these are issues that BESA is concerned about and it is ”not possible to challenge, via judicial review, when there is only a concern that an adverse decision will be made, rather than a decision itself”, the association has decided to pause its legal action, the letter says.
Legal threat to DfE over Oak National Academy plan
BESA will now be taking “time and opportunity to consult with the DfE on how the ALB [arm’s length body] will be run”.
But Tes understands that the legal action could still go ahead, depending on the direction the DfE decides to take on the new body.
In the letter, Ms Wright says the DfE is “now on notice” that BESA, and its solicitors, are “closely monitoring its steps”.
“If in implementing the ALB the DfE makes decisions which go to the heart of BESA and the members’ concerns, then we have the legal papers ready to issue judicial review proceedings (and time to do this will not start to run until a decision is made by the DfE),” she writes.
BESA had previously set a deadline of the end of last month for a reply from the DfE to its earlier letter.
BESA previously warned the department over a lack of “due process” over its plan to make Oak into a new government arm’s-length body.
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 has been taken following careful consideration, and we are confident that due process has been followed.
“We have met with BESA and other trade organisations on a number of occasions over recent months to share our thinking and the Department continues to engage with stakeholders, including BESA, on this policy. Market engagement is an important part of this process and we welcome views from the sector on our proposals.”
BESA has been contacted for comment.
