Three organisations have launched a joint legal challenge against the government’s decision to establish Oak National Academy as a publicly funded arm’s-length body.

The judicial review proceedings are being taken by the British Educational Suppliers Association (BESA), the Publishers Association and the Society of Authors with the NEU teaching union also participating in the claim as an “interested party”.

The three organisations announced today that a formal judicial review claim has been lodged this week.

Tes revealed previously that both BESA and Publishers Association had sent the Department for Education a “letter before claim”, informing the department that they were considering seeking a judicial review over what they believed are unlawful actions.

Caroline Wright, director general of BESA, said the “establishment of a new curriculum body poses an existential risk to the future viability of the sector which, in its current form, will result in an erosion of teacher choice over how to deliver the national curriculum”.

“Launching a legal challenge of the new curriculum body is the sector’s option of last resort. We have tried to engage with the Department for Education over its creation of its new curriculum body for months, but they have refused any meaningful mitigations that would protect competition within the market.”

Dan Conway, chief executive of the Publishers Association, said: “At every step of this process we have sought dialogue and compromise, and this development is a last resort that we very much wanted to avoid.”

Mr Conway said his organisation and others felt there was “no remaining course of action other than to challenge the Department for Education’s plans via judicial review”.

“The government’s plans for Oak will be an unprecedented and unevidenced intervention that will cause irreparable damage to the education sector as we know it.”

Nicola Solomon, chief executive of the Society of Authors, said: “If we don’t act now, educators will be left with one set of state-approved online resources, which will threaten diversity and choice, remove financial incentives and damage the healthy competition which is at the heart of educational publishing.”

Ms Solomon added that this would be likely to result in a “weaker overall pool of resources, greater challenges for teachers and a negative impact on students’ learning”.

Kevin Courtney, joint general secretary of the NEU, said: “Converting Oak from an emergency response to Covid to a permanent part of government is a decision with ominous implications. Without consultation or parliamentary debate, the government has taken a long stride towards directing the detail of teachers’ work.

“Unless its actions are challenged, what is now presented as an optional resource will soon become the norm in schools. The government should recognise its limits: it does not have the capacity, the imagination and the understanding to intervene in this way.” 

Last month, Tes revealed that BESA had asked the department to withdraw funding for Oak, which was relaunched as a new arm’s-length curriculum resources body in September. 

Oak is set to receive £43 million in funding over the next three years, with plans to spend £8 million on purchasing new lesson resources.

Earlier this month, the long-awaited government business case for Oak was published by the Cabinet Office, with the document claiming that there were two “main curriculum problems” in England’s schools: “weaknesses in curriculum design and delivery, as reported by Ofsted; and excessive teacher workload associated with curriculum planning”.

A spokesperson for Oak National Academy said: “It is disappointing they have chosen to go ahead with legal action, not least because schools and teachers deserve more, not less, support. This action is essentially an attempt to block free, high-quality resources for teachers that want them.

“We know that 32,000 teachers use Oak every week and a third of all teachers in the country have used it recently. What’s more, over half say that Oak helps them save valuable time and reduces pressure on their workload. 

“Oak has a clear purpose to work alongside the commercial market to improve the quality of curriculum materials that support teachers and pupils. It is extremely disappointing to see commercial providers seeking to prevent us from doing so.”

The DfE has been approached for comment.