INDEPENDENT SCHOOLS COUNCIL GOES TO LAW OVER PUBLIC BENEFIT
Legal case will test Charity Commissions stance
The dispute about charitable status of private schools has been simmering for several years. The 2006 Charities Act removed the presumption that all charities providing education also automatically provide public benefit. The then (Labour) government swiftly offloaded the task of explaining what that meant in practice to the Charity Commission, which was required to issue statutory guidance.
The Commission’s new public benefit test ruled that people in poverty should not be excluded from the services of these “charities”; that their benefits should be made available to a “sufficient” section of the population, be quantifiable and reported on annually.
Many believe that the Commission has handled the issue poorly. On the one hand it has left the independent sector confused about what they have to do, specifically to satisfy the public benefit criterion. On the other hand they have been dropping hints that increasing bursaries might be viewed sympathetically. This has been interpreted by the independent sector as the Commission not being prepared to give sufficient weight to other activities undertaken by schools which have a charitable purpose. Nearly all independent schools, after all, undertake a range of charitable activities-whether in sharing teachers or facilities or through various community links and activities and local school partnerships. A handful (not enough according to Lord Adonis and Anthony Seldon-see Times 11 May) are even directly supporting Academies, in what is seen by those involved as a mutually beneficial arrangement .Meanwhile state heads are miffed because they feel that awarding more bursaries will serve to encourage the independent sector to cream skim their best pupils. It seems that nobody is happy.
In 2009, the Charity Commission put a sample five schools to the test. Two failed the test because they provided too few bursaries. Far from clarifying the situation this caused greater confusion and uncertainty. How many bursaries is a small school for instance supposed to award? With tight margins some might be forced out of business (and the taxpayer would then have to pick up the tab). The Independent Schools Council was given leave to judicially review the commission’s guidance.
This case has now started.. The ISC argues that there should be return to the pre-2006 status quo because charitable private schools already educate a “sufficiently wide” section of the public to a very high standard while not explicitly barring entry to anyone else.
Michael Gove, when he was Shadow Education Secretary, seemed to suggest that he would help knock heads together to relieve the impasse if in power, but has kept out of the fray so far , probably to await the findings of the legal case. ISC lawyers seem to think that the Commission has been making it up as it goes along. This is hardly helped by the fact that the Chair of the Commission is seen as uncomfortably close to the Labour party. The ISC however has its own problems with a number of schools unhappy with its structure and the services it provides. A failure to win this legal case will add to its problems. One weakness of the sector is that it speaks with several voices.,represented by a number of organisations that dont seem to agree on much which has served to reduce the sectors political clout.
This is, of course, just one stage in a long running battle that has a political dimension as the left want the independent schools to lose their charitable status which they believe would make the sector ultimately wither on the vine.
What would be more likely to happen is that smaller schools would largely disappear and those that are left would become even more expensive, and so more exclusive and would shrink from ‘expensive’ engagement with local state schools. Who, one wonders, would benefit from that? Over to the Charity Commission on that one..