An important court case began in the High Court last week when the Independent Schools Council launched its bid to overturn guidance about what fee paying schools should do to justify charitable status.
A dispute about charitable status 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 then asked the Charity Commission
to explain what that would mean in practice. The Commission drew up a new "public benefit test" which ruled that people in poverty should not be excluded from these ‘charities’ services, that their benefits should be made available to a ‘sufficient’ section of the population, be quantifiable and reported on annually.
Many schools assumed that increasing the number of bursaries would tick this box, others barely changed and in 2009, the Charity Commission put a sample five schools to the test. Two failed because they provided too few bursaries, prompting the Independent Schools Council, which oversees around a thousand private charity schools, to request leave to judicially review the Charity Commission’s guidance.
The ISC case rests on the argument that charitable private schools already educate a ‘sufficiently wide’ section of the public to a very high standard. Because they don't explicitly bar entry to anyone (technically anyone can apply ) their activities should be judged automatically 'charitable', even though most parents could not afford fees that might equal the average net earnings of some families.
At the Local Schools Network, we believe that fee paying schools offering smaller class sizes, access to the top universities, high level networks and strings to pull should not be subsidised by the rest of us unconditionally. Many actually provide a public “disbenefit”; they divide young people by race, class and family income, act as a break on social cohesion as well as social mobility.
Bursaries, many of which do not fully cover the fees and are often offered to siblings, families of alumni and staff, should not provide cover for charitable status. Most are linked to academically selective tests more likely to favour the impoverished middle classes than the socially excluded poor, while also depriving many state schools of the academic mix they need to do well,
The blanket removal of charitable status is a more complicated legal process than many assume and there are no signs that any political party will be changing charity law in the near future. However the bar set by the Charity Commission could be even higher. The Education Review Group
, which I support, has been given permission to intervene in the case next week. Its submission
suggests that, rather than turfing out the Charity Commission’s guidance, we should require more exacting eligibility criteria for bursaries (I favour focussing them on those pupils most at risk of exclusion), partnerships that make a quantifiable impact on the performance of local state schools and their most needy, rather than most able, pupils and more rigorous methods of measuring that impact. Please help by letting us know what, if anything, the fee-paying schools do to help the least well off pupils in your local community