Private schools and charity status
Another Tribunal Ruling places further pressure on Commission
Better guidance required
Under Labour’s 2006 Charities Act fee-paying schools are no longer automatically entitled to charitable status. They must prove they provide public benefit,which is fair enough.
The Charity Commission issued guidance seeking to show schools and other fee-paying charities how they could meet the new requirement. The guidance subsequently issued by the Commission was not, by common consent, an unalloyed success as the sector, seeking clarity, found none in the guidance . It left the sector confused while the Commission, concurrently, managed to convey the impression that it favoured the granting of what is termed ‘Direct’ benefit – ie scholarships and bursaries –over other forms of ‘ Indirect’ benefit- pupils of local state schools benefiting through shared teachers, teaching materials and facilities (particularly teaching facilities) .Bursaries tend to favour the few rather than the many, and seem to encourage private schools to cherry pick outstanding pupils from state schools, damaging them in the process-an odd manifestation, one would have thought, of ‘public benefit’.
The ISC sought a court judgement challenging the Commissions guidance. In a judgement published in October, the ISC claimed a partial victory as the tribunal said parts of the Commissions guidance were “erroneous” and should therefore be rewritten, in agreement with the ISC. It also found that no single test of benefit is possible; hence those seeking a silver bullet solution would end up disappointed. But, as expected, the two sides failed to agree a new wording, resulting in a further court judgement held last week. In the latest ruling, just published, judges told the commission to withdraw “the relevant parts of the guidance… [or] we will make a quashing order”.
It means that though schools are technically still bound by the public benefit rules – the regulator must issue fresh guidance telling them how to comply. It amounts to a pretty severe rap over the knuckles for the Commission.
The relationship between the ISC and Commission is now very poor indeed with the ISC accusing the Commission of not working with it to formulate new wording for the guidance but instead – “ trying to rewrite history” . It has previously accused the Commission of making up the law as it went along.
The ISC said of the latest judgement, “We trust that this ruling will now persuade the Commission to discharge its duty to hundreds of thousands of charity trustees to produce clear and accurate guidance. After all, the Commission has a public benefit objective, not a public relations objective.” Ouch!
The Daily Telegraph in a Leader on 7 December called for the removal of the Commissions head, Dame Suzy Leather, regarding her as an obstacle to reform. She has close links to the Labour party, which has made her a particular target for Tories.