Awarding organisations launch T-level legal challenge in pre-action letter to DfE

Battle lines have officially been drawn by the Federation of Awarding Bodies, after it outlined its intention to launch a judicial review of the government’s T-level implementation plans.

The legal action began with a letter sent to the Department for Education and the Institute for Apprenticeships yesterday setting out FAB’s grounds, following a unanimous decision by the federation’s board.

FE Week understands the judicial review will challenge on three areas: irrational (timescales), unreasonable (lack of proper engagement on the single provider model) and unfair (has a disproportionate impact on the awarding sector).

It comes after FAB chief executive Tom Bewick first revealed to FE Week that the organisation was considering a legal challenge following market engagement events with the DfE last month, which left awarding organisations (AOs) fuming.

It is highly regrettable that we feel the need to take these steps

“It is highly regrettable that we feel the need to take these steps. It seems the government is simply not willing to listen to a chorus of concerns about its T-level implementation plans,” said Paul Eeles, the chair of the FAB board.

“FAB is advancing several grounds of legal challenge to the approach being taken by the DfE (and IfA) to the ‘wave 1’ T-level procurement process.

“The rationale for the timescales being pursued by the DfE (and IfA) does not add up. It is unclear whether these bodies even have the powers they need to act as they intend.

“Further, the ongoing uncertainty around numerous matters that are essential to bid preparation will make it impossible for some AOs to participate in the procurement process, will dissuade other AOs from participating, and will significantly disadvantage those AOs that do decide to participate.

“The single-provider model has, moreover, been adopted without proper stakeholder engagement, regardless of the duties owed by the DfE (and IfA), and irrespective of the serious implications for the sector.”

Mr Eeles continued: “Ultimately, our concerns come down to the future job prospects of the 30,000 learners who will be invited to enrol in the first wave of the T-level programme.

“We can’t afford a rushed process that could result in a whole generation of people being let down in the same way that those who took 14-19 diplomas were prior to 2010.

“Of course we are four-square behind the government in wanting to introduce a genuinely world-class technical qualification. But the desire to meet a politically driven timescale of September 2020 should not come at the expense of the capacity of the education and awarding system to respond adequately.”

The proposed legal action comes after AOs wanting to deliver the new qualifications were left enraged at “market engagement” events last month, over the commercial terms to which they will have to agree.

They believe, among other things, that their ownership of the content they will have developed will be limited.

We can’t afford a rushed process that could result in a whole generation of people being let down

“Other proposed aspects of the ‘wave 1’ procurement process (including around co-branding and intellectual property rights) remain unresolved and may well give rise to further concerns,” Mr Eeles said today.

“These are being kept under review.”

The debate over rushed timescales has raged on in recent weeks.

Ofqual’s four-week consultation on T-levels at the end of term was branded “ridiculous” by Meg Hillier, chair of the Public Accounts Committee.

She added that Ofqual’s short-turnaround consultation proves there is a “rush to deliver a government policy, regardless of whether it works, and that is not sensible”.

And just yesterday skills minister Anne Milton made the national papers after admitting that as a parent she would tell her children to “leave it a year” before studying a brand new qualification like T-levels.

It all follows a rare ministerial direction from the education secretary in May, when Damian Hinds refused his own permanent secretary’s request to delay the initial rollout of T-levels until 2021.

Mr Eeles said his organisation “stands ready to engage in constructive talks with the government about ways it could improve its T-level implementation plans”.

The letter is the first step in the judicial review process. The government will typically now have 14 days to respond.