Oak: DfE once again faces legal threat over quango

Exclusive: A suppliers association has once again issued the DfE with a proposed claim for a judicial review

5th October 2022, 10:18am

Oak: DfE once again faces legal threat over quango

The Department for Education is once again facing the threat of legal action over its decision to establish Oak National Academy as an arm’s-length body, Tes has learned.

The British Educational Suppliers Association (BESA) has sent the Department for Education a letter before claim, informing the department that it is considering seeking a judicial review over what it believes are unlawful actions.

Last month, Tes revealed that BESA’s lawyers had been told that there would be grounds for legal action against the DfE over the newly relaunched Oak National Academy.

Oak: Lawyers say there are grounds for legal challenge over quango
Exclusive: Legal action over Oak paused for DfE crunch talks
Oak National Academy: £8m budget for buying new lesson resources

Now that the DfE has received the proposed claim for the judicial review, it will have until mid-October to respond to the claims.

BESA has also asked the department to withdraw funding for Oak, Tes understands.

Oak relaunched as an ALB

At the beginning of September, Oak National Academy relaunched as a new independent arm’s-length body (ALB).

The ALB announced it would receive £43 million in public funding over the next three years, with £8 million of that budget going towards purchasing new lesson resources.

The government also said last week that it will use £6.6 million in contingency funding to help establish the body.

Tes understands that BESA has called the DfE’s actions unlawful on five counts:

Firstly, on following guidance on the establishment of the ALB.
Secondly, it will claim there has been a failure to follow subsidy control rules.
BESA also claims that the DfE breached article one, protocol one of the European Convention on Human Rights in regard to the protection of property.
The association also believes the DfE failed to take into account the potential market impact assessment of their proposals.
BESA also believes that the DfE failed to geoblock the ALB site to the UK only, meaning users outside the country can access it.

Caroline Wright, director general of BESA said that following the DfE’s confirmation of the “operating model” for the new ALB at the end of August, the association had “sought feedback both from legal advisers and BESA’s membership”.

“Given the extensive feedback and concerns raised by educational publishers BESA has sent a letter before claim to the Secretary of State for Education,” she said.

Ms Wright said she hoped the new secretary of state Kit 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”.

“I would urge the Secretary of State to take action to withdraw the market-distorting £43m subsidy to the Oak National Academy and instead provide the vital public funding direct to school leaders so that they have the autonomy and choice to address the pressing challenges that their individual schools face during the current cost-of-living crisis.”

Second time DfE has faced prospect of action over Oak

This is the second time the department has faced potential legal action over the ALB, after BESA informed former education secretary Nadhim Zahawi back in March that it was considering seeking a judicial review over what it called the DfE’s “unlawful” decision on Oak.

This legal action was paused in June after the DfE said that it had not yet decided on crucial aspects of how the new body will be run.

A spokesperson for Oak National Academy said it remained “focused on serving the needs of teachers, pupils and schools” who “hugely value the support of Oak”.

The spokesperson added that 30,000 teachers continue to use the platform each week, “and over half of our users say it lowers their workload, improves their wellbeing and increases their curriculum expertise”.

Adding: “We want to continue 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 said: “It is disappointing to see businesses operating in the education sector seeking to undermine plans that have been designed by teachers, are in demand from teachers, and ultimately are in the best interests of pupils up and down the country.

“Oak National Academy 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.”

Oak ’won’t lose sight of putting teachers first’

Speaking to Tes last week, Matt Hood, interim chief executive of Oak, said that Oak was “in discussions” with BESA and the Publishers’ Association and that they had “highlighted some potential long-term risks that they think might damage” the commercial edtech and publishing market in the UK.

But Mr Hood said that, while he thought the “damage to those markets could have been a risk”, the ALB had now put “some mitigations in place” - although he admitted that there “is more we can do in that space based on that helpful feedback and suggestions to further mitigate that risk”.

Today, Ms Wright refuted these claims, saying BESA is not aware of “mitigating factors” that have been “put in place to prevent damage to teacher autonomy and the curriculum resource market” as claimed by the ALB last week.

Instead, Ms Wright said “the curriculum procurement model selected and announced by the DfE as the operating model for Oak on 30 August” was “the most damaging and extreme of the possible scenarios originally outlined by the DfE earlier in the summer”.

Jonathan Dando, director of school support at Oak, said the organisation “continued to have conversations with Caroline and her team about Oak’s proposals in those meetings, in which it had set out significant mitigations to protect teacher autonomy and support the resources market”.

‘Oak will always be entirely optional’

Detailing those mitigation measures, he said: “Oak’s content is - and always will be - entirely optional and fully adaptable. Schools must always decide what’s right for them. This commitment is protected in our founding document.

“Our curriculum content will be created independently of government. They will have no say in what topics we pick, how it’s structured or how lessons are designed. This, too, is protected in our founding documents.

“To support the market, we are proposing an open procurement where significant new money will go directly to schools, publishers and other organisations to share and create resources. Alongside this curriculum offer, we’ve proposed sharing and signposting to a wide range of other providers, which will likely exceed 80 different curricula options.”

Mr Dando added that the organisation “won’t lose sight of putting the needs of schools and teachers first” and that over two years since Oak was established, “the resources market has continued to be valued by teachers, and only 0.3 per cent of teachers use Oak exclusively”.

“We’re committed to monitoring this and supporting the market through a range of measures, including taking an open approach to our platform and content.

“We’re also currently in a period of market engagement and listening to views around what more is needed. We’re looking forward to responding to the good and constructive feedback we’ve had once that period ends.”