@AELPUK statement regarding legal advice on Cabinet Office guidance PPN 02/20

Following careful consideration by its Board, the Association of Employment and Learning Providers (AELP) has decided that it will not pursue legal action against the Department for Education in relation to Procurement Policy Note 02/20: Supplier relief due to COVID-19, published by the Cabinet Office on 20 March 2020.

After considering the reply dated 14 May 2020 from the Government Legal Department (GLD) on the legal advice which AELP received in April, AELP’s lawyers are clear that the only action now would be seeking a judicial review.  The AELP Board believes that such action would come at a significant cost; a positive result would be to review the process but there would still be no guarantee of substantial support from the DfE for suppliers even after that.  This would also take time, to a point where it might be too late for many AELP members.

Although AELP will not be pursuing a legal resolution of this matter, copies of the letters between the AELP’s lawyers and the GLD will be made available to members or groups of members if they feel that they want to pursue further themselves.

AELP’s lawyers have indicated to AELP that the GLD’s response does not make a case for defending the DfE’s position on the application of PPN 02/20.  The AELP Board feels strongly the letter is simply one of rebuttal and it avoids addressing the key issues such as the legal agreement between the Education and Skills Funding Agency and a provider for levy-funded apprenticeships constituting a contract.  The Labour Party’s shadow education team has also written to the Secretary of State, Gavin Williamson, calling for the government to abandon its “very flimsy case” for excluding levy-funded apprenticeships from the DfE’s supplier relief scheme.

Last week, in response to the Commons Education Select Committee chair Robert Halfon, the Prime Minister said that he "totally agreed" that apprenticeships would play a "huge part in getting people back on to the jobs market and getting them into work and we will look at anything to help people". 

Over the weekend, reports indicated that the Chancellor will announce a new Budget in early July that will provide funds to retrain workers who are laid off when furloughing ends. 

In both cases, AELP’s view is that the government must make the connection between maximising the number of training opportunities and ensuring that the country’s training infrastructure is at maximum capacity to help create those opportunities. 

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Therefore it is imperative that the DfE extends its relief scheme as soon as possible to cover providers of levy-funded apprenticeships because many of these providers are active in the delivery of other employment and skills programmes which could have a very positive impact in terms of supporting the economic recovery.

Association of Employment and Learning Providers - 01 June 2020

AELP previously sought legal advice in respect of training provider support

The Board of the Association of Employment and Learning Providers met on Tuesday 21st April and, as part of the agenda, considered the contents of the letter dated 17 April 2020 sent by the Apprenticeships and Skills Minister to all MPs in England on the Department for Education’s intention to provide support for apprenticeships and adult education.

The minister’s letter made it clear that the proposed support would only be available to providers in respect of apprenticeships offered by non-levy paying employers where providers hold ‘a direct contract’ with the Education and Skills Funding Agency (ESFA).  It specifically states that support will not “apply in relation to apprenticeships funded from employer digital accounts where the contractual relationship is between the employer and the provider”, i.e. in respect of apprenticeships offered by levy paying employers.  In AELP’s view, this statement ignores the fact that the levy is a tax as defined by the Finance Act 2016.

Taking into account legal advice already sought by individual AELP members, the Board unanimously agreed that levy funded providers also have a direct contract with the ESFA and so the DfE’s grounds for excluding relief for them were not justified.  Therefore the Board instructed AELP’s secretariat to immediately seek formal legal advice on whether the Department is still failing to comply with the Cabinet Office guidance to which the minister’s letter refers.

More details about financial support for non-levy apprenticeships and AEB expected by the end of this week: @AELPUK responds to @GillianKeegan’s letter of 17 April 2020 to all MPs on #apprenticeships and #AEB Following the DfE statement dated 17 April… https://t.co/MkbNMfWQlv pic.twitter.com/mKQGXbdZ0U

— FE News - The #FutureofEducation News Channel (@FENews) April 21, 2020

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