The Association of Employment and Learning Providers will seek legal advice over the government’s plans for provider support during the coronavirus pandemic, it has been announced.

The organisation’s board today instructed its secretariat to gather legal advice on whether the Department for Education is failing to comply with Cabinet Office guidance.

This comes after a letter from apprenticeships and skills minister Gillian Keegan to MPs, dated 17 April 2020, set out the Department for Education’s intention to provide support for apprenticeships and adult education.

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In her letter, Ms Keegan said support would only be available to providers on apprenticeships offered by non-levy paying employers where providers hold “a direct contract” with the Education and Skills Funding Agency (ESFA) and will not apply in relation to apprenticeships funded from employer digital accounts where the contractual relationship is between the employer and the provider – so apprenticeships offered by levy-paying employers. 

According to AELP, this statement ignores the fact that the levy is a tax as defined by the Finance Act 2016.

In a statement published earlier today, AELP chief executive Mark Dawe said that while AELP was pleased that Ms Keegan had written to MPs, promising that further details on financial support for training providers would be published by the end of this week, the organisation remained concerned about the nature of the proposed support.

The letter, sent to all MPs, said the Department for Education would be “introducing targeted financial relief measures for those providers that need it, where they hold direct contracts with the Education and Skills Funding Agency, and where we pay in arrears for actual delivery rather than on a monthly profile".

It added: “In line with Cabinet Office guidance, we will provide relief where delivery has been impacted under providers’ adult education and apprenticeship contracts with the Education and Skills Funding Agency. This does not apply in relation to apprenticeships funded from employer digital accounts, where the contractual relationship is between the employer and the provider.

“Our intention in providing this targeted support is to enable high-quality providers to remain active where that is still possible and safe. We shall set out further detail on these measures and the criteria for accessing them next week. In doing so we will ensure that this support is targeted at those providers who need it, with proven track records for delivering quality training, and that it takes account of any wider support providers have accessed from HM Treasury or elsewhere.” 

'High-quality' apprenticeship providers

However, Mr Dawe said the phrase “targeted support" suggested there would be some form of arbitrary selection of providers that may not be fair or justifiable.

Mr Dawe said: “The letter refers to enabling 'high-quality providers' to remain active as a result of the promised support, but how will the DfE define ‘high-quality’? All apprenticeship providers have recently been through a reapplication process to be on the government’s Register of Apprenticeship Training Providers (RoATP), which was much tougher than the first time around, and those who secured non-levy apprenticeship contracts and procured non-devolved Adult Education Budget contracts with the ESFA went through a highly competitive tendering process, which left many Ofsted grade 1 and 2 providers empty-handed. AELP is, therefore, uncertain what additional criteria will be used to justify the DfE’s 'targeted support'. Full transparency is required.”

He said the Cabinet Office supplier payment guideline did not appear to “allow for the type of filtering-out exercise that the minister’s letter suggests”.

He also drew attention to traineeships, saying: “If the government is really serious about protecting vulnerable and disadvantaged learners, it should be coming forward with a package that supports traineeships and study programmes as well.”