BESA threatens legal action over ‘unlawful’ DfE plans for Oak

The British Education Suppliers Association claims government breached rules on subsidies, procurement and consultation

The British Education Suppliers Association claims government breached rules on subsidies, procurement and consultation

16 May 2022, 10:39

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Oak academy

The British Educational Suppliers Association has taken the first formal step towards legal action over the Department for Education’s plan to move Oak National Academy into public hands.

Trade association BESA claims it was “unfairly and unlawfully excluded” from consultation over the move, subsidies for the online school are “unlawful” and the DfE failed to properly consider the decision’s impact on the educational services market.

Education secretary Nadhim Zahawi had confirmed in March Oak would become part of the DfE as an arm’s length national curriculum body this autumn.

He called it “one of our greatest achievements”, with its free online learning materials hugely popular with schools during the pandemic.

But Caroline Wright, director general of BESA, said it had “no other option” but to take legal action. The organisation gave the DfE notice today of its proposed judicial review claim.

She warned the move would “unfairly replicate” hundreds of UK businesses’ own curriculum resources, threatening hundreds of millions of pounds of investment and hundreds of jobs.

“The government appears to want to transform Oak into a national curriculum body that would work closely with Ofsted to deliver government-approved content for schools,” the letter said.

Such a move also threatens to “curtail” teacher and school autonomy to use the resources they wish, she added.

BESA said it wants a resolution without court intervention, but has called for the department to put its plans for Oak on hold. The body also wants a consultation to be run on the plans.

BESA’s letter to the DfE argues there is “no evidence” it is creating the arm’s length body as a last resort, as required by Cabinet Office guidance. Government is also accused of refusing requests to release its business case – which must be drawn up for ALBs to show multiple tests have been met to justify their creation.

Meanwhile the DfE is accused of failing to properly assess the impact of its proposals. BESA said its own review found 63 per cent of schools surveyed were against the DfE creating and providing free curriculum content post-pandemic.

BESA also claimed that “schools do not value free curriculum content”, highlighting its findings that just a quarter of primary schools and a tenth of secondaries believe free content compares well with paid-for content.

The DfE’s own decision “appears to have been taken without conducting research on anything like the scale of BESA’s surveys”, and there is reportedly “no evidence” the DfE considered BESA research, the letter adds.

Proposals have also proceeded without “meaningful consultation” as required, BESA claims. It highlights rules too which state procurement must not be designed “with the intention of unduly favouring or disadvantaging certain economic operators”.

BESA makes further arguments about alleged breaches of UK and EU subsidy rules, suggesting there is no evidence of a “market failure” or “equity rationale” to justify public funding for Oak.

A DfE 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 will continue to engage with stakeholders on this policy. Market engagement is an important part of this process and we welcome views from the sector on our proposals.”

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