A judicial review into the decision to snub colleges from this summer’s 5.5 per cent school teacher pay award has been launched, FE Week has learned.
The legal challenge was filed by the Sixth Form Colleges Association in a bid to “redress the imbalance” ministers created.
The body, which speaks for 80 members but is fighting for all 200-odd colleges in England, will claim the government’s decision to award £1.2 billion to schools to increase pay in 2024/25 but not their counterparts in colleges was unlawful and irrational.
SFCA will challenge ministers’ defence that the government is not responsible for setting pay in colleges, namely because FE is outside the scope of the School Teacher Pay Review Body, and could not afford to include colleges in the funding.
A key argument will be that academies were counted in the settlement even though they, like colleges, are not in the remit of the pay review body.
The action comes as sixth-form college teachers prepare to hold three days of strikes over the fiasco, led by the National Education Union.
SFCA chief executive Bill Watkin (pictured right) said: “SFCA has been working hard to reach a satisfactory solution in this matter but we took the decision to seek a judicial review on the basis we had been left with no choice.
“This is not a course of action that we embarked on lightly, and it is one we have tried to keep confidential.”
An email from the association to members, seen by FE Week, said there was “emphatic and unanimous support for bringing a claim for judicial review” during a meeting of its council on October 10.
FE Week understands the case was officially filed on October 25 and the government’s lawyers must provide a response by Wednesday. At that point, unless SFCA is satisfied by the nature of the response, the claim will be laid before a judge, who will rule after a process that can take months.
‘Farcical situation’
On July 29 chancellor Rachel Reeves accepted the School Teachers’ Review Body’s recommendation of a 5.5 per cent pay rise for school staff, equivalent to an increase of over £2,500 for the average teacher.
To help fund this the government handed out £1.2 billion in additional cash to schools, starting from September 1. Colleges were offered no funding for pay and fear the already large £9,000 pay gap between their staff and schools will be exacerbated.
Education secretary Bridget Phillipson (pictured left) and her team of ministers’ excuse has been that colleges are not in scope of the pay review body’s remit and the government therefore does not decide pay in further education settings.
Despite this, academy schools and 16-to-19 academies, which are also not in the scope of the pay review body, were included in the £1.2 billion settlement. The pay-rise funding is also for support staff, who, again, are not part of the pay review body.
It has led to what the NEU called a “farcical situation” where staff in England’s 40 sixth-form colleges that converted to academy status benefit from the 5.5 per cent pay award but 40 autonomous sixth-form colleges do not.
On top of this, sixth-form colleges along with general FE colleges were reclassified as public sector institutions by the government in November 2022, imposing a series of strict controls around borrowing, governance and other areas, similar to what schools have to abide by.
Reeves did announce an additional £300 million for FE at last month’s budget, but the funding isn’t expected to kick in until the start of the new financial year in April and is likely to fund projected demographic increases in 16-to-19 students.
SFCA told members it had hoped the government would take the opportunity to also fund the pay rise in colleges “without losing face” but has found “no choice but to press ahead” with the judicial review.
It added: “Both schools and colleges deliver a state-funded education to young people, and sit in the public sector. There is no logical reason to distinguish between them.”
Watkin told FE Week that colleges need an “urgent solution” and “simply cannot wait for the spending review” to see if their institutions are offered new funding for pay.
The next steps for the judicial review, likely to cost tens of thousands of pounds, include gaining formal permission from a judge to move towards a hearing.
The DfE declined to comment.
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