The body which represents exam boards has embarked on legal action against the Department for Education over the introduction of T levels, Tes can reveal.

The Federation of Awarding Bodies (FAB) has formally written to the DfE and the Institute for Apprenticeships (IfA), proposing a legal challenge to the government’s flagship technical education reforms.

A pre-action protocol letter - the first stage in initiating a judicial review - was sent to the DfE and IfA yesterday. If no agreement is reached, the case could end up going before the High Court.

This would put plans for the first T levels to be taught in 2020 in major doubt.

T levels licensing

A letter sent to FAB members this morning by its chair Paul Eeles, seen by Tes, outlines that the action centres on legal concerns over the timetable for the first wave of the procurement process, the decision to adopt a single awarding body for each qualification and other aspects of T-level implementation. It calls into question whether the government has acted lawfully in its plans for introducing T levels.

The FAB’s concerns including the timescales for the procurement exercise, and ongoing uncertainty which could disadvantage some awarding bodies, and even prevent them from bidding. The FAB also has concerns over the lack of stakeholder engagement in the licensing approach, and over the branding and intellectual property rights for the qualifications.

In the letter, Mr Eeles states: “We are taking these extraordinary steps, not because we disagree with the introduction and purpose of T levels, but because of the way the government has gone about the process of implementation.

“The rushed nature of these reforms is leading the government to put at risk the life chances and job prospects of the 30,000 learners who are expected to be enrolled in T levels from September 2020.”

‘System failure’

Mr Eeles also highlights mistakes made in the introduction of 14-19 Diplomas in 2008, which were scrapped five years later.

The letter states: “The current government is in danger of repeating the same mistakes. They have not listened to experts inside and outside the sector. Ministers have pushed back on advice from senior civil servants that the timescales for implementation represent the significant likelihood of ‘system failure’ as the resource load being placed on the post-16 skills sector coincides with other major reforms, including apprenticeships.”

The letter also highlights the “commercial damage these implementation plans will cause the awarding industry” by operating a single awarding body model, unlike the competitive market which operates for other qualifications such as A levels and GCSEs.

‘Very challenging’ timescale

In May, DfE permanent secretary Jonathan Slater took the highly unusual step of writing to education secretary Damian Hinds, asking for a delay in the introduction of T levels. “As things stand today, it will clearly be very challenging to ensure that the first three T levels are ready to be taught from 2020 and beyond to a consistently high standard,” he wrote.

But Mr Hinds rejected the plea, and in a written ministerial direction said he was “convinced of the case to press ahead” with the original plans, which means the first T level subjects are still scheduled to start being taught in September 2020. 

The news of the legal challenge from the FAB comes one day after skills minister Anne Milton admitted to the Commons Education Select Committee that she would advise her children to “leave it a year” before starting a new qualification like T levels.

She told MPs: “The job of persuading parents to do any new qualification is always quite tough and we know that not huge numbers will do it in the first instance because... I mean, I’m a parent of four children. If somebody said to me, ‘Your children could do this new qualification,’ I’d say, ‘Leave it a year’.”

The minister’s comments were described as “astounding” by shadow FE minister Gordon Marsden.

Mark Dawe, chief executive of the Association of Employment and Learning Providers, said: Although AELP has been strongly supportive of the concept of T levels, we completely understand why FAB have launched this action.  After Anne Milton’s comments to MPs yesterday, ministers should now take on board the permanent secretary’s advice and take stock of where we are on this.  In its rush, the government doesn’t seem willing to explore new models of delivery including working more closely with independent training providers who can give the young learners potential access to 380,000 employers for the required industrial placements.”

Julian Gravatt, deputy chief executive of the Association of Colleges, said: “We will continue to make our views and suggestions on T levels known to officials in DfE, IFA and Ofqual. DfE’s plan to move to a single awarding body will be challenging but, as Tes explained a few weeks ago, the current exams market leaves colleges with high costs and not a lot of choice in many areas so it’s too early to say that the government’s licensing strategy is wrong in principle.”

John Cope, CBI head of education and skills, said: “A technical equivalent to A levels is a vital, missing link in our education system that employers warmly welcome. Business, teachers, pupils and parents need to have confidence in T levels.

“The CBI will continue to work with the government and support T-Level pilots in 2020 to help get this important reform working well.”