Independent schools must do more than educate those who can afford their fees in order to retain their charitable status, the Upper Tribunal has decided
Attorney General v Charity Commission and Independent Schools Council [2011] UKUT 421 (TCC) dealt with the meaning of “public benefit”. The case was referred to the Upper Tribunal after the Independent Schools Council argued in the High Court that private schools are charities because they provide education, regardless of whether people can afford their fees.
The tribunal noted that provision at the luxury end of the market was “astonishing” with facilities such as stables, beagling packs and nine-hole golf courses. “Stringent examination” was needed to see if these schools delivered public benefit, it said. This judgment was down to the trustees of the school.
However, education lawyers have criticised the judgment over its lack of clarity.
Paul Ridge, partner at Bindmans, which acted for the Education Review Group, comments: “The difficulty with the decision is that the court will not draw a firm line as to what a school should and should not do.
“The court points out that one per cent of funds allocated for poor pupils would simply not be sufficient. Similarly it would be hard to say that if 10% of funds were used for poor pupils, that this would not be enough, but where the line is to be drawn remains unclear.”
Gerry Morrison, associate at Rollits, says: “The ruling is welcome in terms of clarifying that it is the governors who have the power and flexibility to decide how their charitable independent school should meet the public benefit requirements because it does not provide stringent rules (each school is different and schools should therefore be assessed individually).
“However, this still leaves matters open to interpretation.”
