DfE facing legal action again over ‘unlawful’ Oak quango

British Educational Suppliers Association says £43 million curriculum body subsidy should be pulled and instead given to schools

British Educational Suppliers Association says £43 million curriculum body subsidy should be pulled and instead given to schools

Education publishers have accused the Department for Education of acting unlawfully in setting up Oak National Academy, and have issued Kit Malthouse a fresh legal letter threatening judicial review.

The British Educational Suppliers Association believes DfE’s flouted official guidance when establishing the curriculum arms-length body.

Government rules state new public bodies “should only be created if there is a clear and pressing requirement, a clear need for the state to provide the function or service through a public body, and no viable alternative – effectively establishing new public bodies as a last resort”.

In a letter before claim to education secretary Malthouse, BESA also accuse government of not “following subsidy control rules” and ”protection of property” laws under the European Convention of Human Rights.

The other claims are that government did not take into account “the potential market impact” of the quango proposals and failed to “geo-block the ALB site to the UK only”.

It’s the second letter warning of legal action sent by BESA, after similar action earlier this year was later put on ice.

Caroline Wright, BESA’s director general, said she hopes “Malthouse will take this opportunity to revisit the decisions taken by his ministerial predecessors and listen to the concerns raised by educational publishers, MAT leaders, teaching unions and subject associations”.

She urged Malthouse to “withdraw the market-distorting” £43 million subsidy to Oak and instead provide “vital public funding direct to school leaders”.

“They have the autonomy and choice to address the pressing challenges that their individual schools face during the current cost-of-living crisis.”

But a DfE spokesperson said it was “disappointing to see businesses operating in the education sector seeking to undermine plans”.

They said the plans “have been designed by teachers, are in demand from teachers, and ultimately are in the best interests of pupils up and down the country.”

‘Mission creep’ warning from unions

The quango has been controversial. United Learning, England’s largest academy trust and an original Oak partner, pulling over 1,500 lessons last month.

Sir Jon Coles, the trust’s chief executive, urged Malthouse to ditch its “state control” of Oak.

Unions are now sounding the alarm, too. Speaking at a fringe event at the Labour Party conference last week, Geoff Barton, general secretary of the ASCL school leaders’ union, warned of “mission creep” that could “undermine” teachers’ autonomy.

He said Oak grew from a “principle of professional generosity at the beginning of the pandemic”, which had been a “really good move”. But it has now “morphed into something else”.

“The subtext appears to be that we know what a good history lesson looks like, or what a good English lesson looks like. And as we’ve said, teaching and learning really doesn’t work like that. This is an example I think, of mission creep.

He added: “If Labour is looking to start reclaiming some money, I would suggest you might have a look at £43 million, which has gone to an area which isn’t just potentially a kind of vanity project, but could end up as we said earlier, undermining the sense of how teachers have autonomy in their own classrooms.”

Oak aims for ‘thriving commercial market’

At the same event, Dr Mary Bousted, joint general secretary of the National Education Union, said Oak had been set up “in a crisis”.

“There’s been no evidential review about the effectiveness of that. And suddenly, it’s been rigged out to every subject. I think it’s extraordinary, overreaching and overweening ambition, and I think it’s worrying.”

Matt Hood, Oak’s interim chief executive, has vowed to tell ministers “no” if they try to interfere with the quango’s work.

However documents explaining how the body is set up show just how much power the secretary of state has.

Their approval is needed to appoint the chief executive, they can appoint up to five directors, and their sign off is needed on spend above certain thresholds.

During the first lockdown, the BBC was under pressure from BESA to axe access to its home-learning lessons over fears it would squeeze commercial providers out of the market. But social mobility experts warned it would hit the poorest hardest.

An Oak spokesperson said today they want to see a “thriving commercial market” and for schools to “always be free to choose what is right for them”.

“Only 0.3 per cent of teachers use Oak exclusively, and our resources will always be entirely optional.

“We’ve held positive talks with trade bodies about ways we can support the sector, including our proposal to host and signpost offers from a range of providers.”

A DfE spokesperson added Oak “enables teachers to access entirely optional, free, and adaptable curriculum resources and lesson plans. This helps cut down on workload and gives teachers materials that can provide the best possible support to pupils.

“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.”

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