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Independent schools and the public benefit requirement

October 17th, 2011 by Rachel Kamm

The Upper Tribunal has promulgated its decision in two cases (heard together) about the public benefit requirement for educational charities. The judgment runs to 116 pages.

The Upper Tribunal identified the key issues as follows. First, “what the governing instrument of a school (where such an instrument exists at all) needs to provide in order for the school to be capable of being a charity“. Secondly,  ”what a school actually needs to do to be seen as operating for the public benefit“.

The Upper Tribunal found that a trust which expressly excluded the poor from benefit could not be a charity. Charitable independent schools, like any other charity, must (in return for the privileges of charitable status) operate for the public benefit. This meant that they must run their charity to ensure that the poor could benefit in a way that was more than minimal or tokenistic. Once  that threshold was reached, what the trustees decided to do in the running of the school was a matter for them, subject to acting within the range within which trustees can properly act. When it came to considering whether a school which was a charity was operating for the public benefit in accordance with its charitable purposes, the primary focus had to be on the direct benefits which it provided. Scholarships or other forms of direct assistance to students were therefore important. Account could also be taken of other direct benefits, such as arrangements under which students from local state schools could attend classes in subjects not otherwise readily available to them and the sharing of teachers or teaching facilities with local state schools. Account could also be taken of a school making available (whether on the internet or otherwise) teaching materials used in the school and of making available to state schools facilities such as playing fields, sports halls, swimming pools or sports grounds. It concluded that the Charity Commission’s guidance needed to be corrected.

The procedural background to the case highlights the various ways in which issues can reach the Upper Tribunal. One case was a judicial review claim, brought in the Administrative Court by the Independent Schools Council challenging the Charity Commission’s guidance on the public benefit (see our previous post on the topic). When Mr Justice Sales granted permission, he also transferred the JR application to the Tax and Chancery Chamber of the Upper Tribunal. The second set of proceedings was a reference by the Attorney General under the Charities Act 1993, asking the Upper Tribunal to decide certain questions about the operation of charity law in relation to a hypothetical independent school. The Independent Schools Council and Charity Commission were joined as parties to the Attorney General’s reference and it was heard together with the JR application. The National Council for Voluntary Organisations and individuals acting on behalf of the Education Review Group intervened in the JR application and were permitted to make representations in the Attorney General’s reference.

Nigel Giffin QC appeared for the Independent Schools Council.

Non-maintained special schools

July 13th, 2011 by Edward Capewell

The Education (Non-maintained special schools) (England) Regulations 2011 (SI 2011/1627) were laid before Parliament on 8th July 2011 and will come into force on 1st September 2011. They are intended to align the requirements for non-maintained special schools with those for maintained special schools and they consolidate with amendments previous regulations from 1999. Notable effects of this SI include:

- Providing proprietors of such schools with an appeal to the First-tier tribunal against certain decisions of the Secretary of State (to withdraw approval etc.). Previously only judicial review was available

- Making provision for sixth-formers to withdraw from attending acts of religious worship. This aligns non-maintained schools with maintained schools.

- Removal of the requirement (previously in the 1999 regulations) for a non-maintained special school to provide a copy of its prospectus to the Secretary of State

You can read the regulations here and the explanatory memorandum here, both on the government’s helpfully tidied-up legislation.gov.uk website.

Review of private school charity rules

September 30th, 2010 by Rachel Kamm

There are news reports that the Attorney General has ordered the Charities Tribunal to review Charity Commission guidance for private schools on demonstrating the provision of a public benefit (which is essential in order to qualify for charitable status). This follows the Independent Schools Council’s pending application for judicial review, challenging the lawfulness of the Charity Commission’s guidance. The issue is whether the guidance places too great an emphasis on financial assistance by way of bursuries.