The Charity Commission should consider any detriment or harm caused by fee-charging schools when deciding whether they provide public benefit, according to the advisory body the Education Review Group.
The ERG, a body set up to advise the Charity Commission on public benefit in the education sector, has become a party to the forthcoming charity tribunal hearing on private schools and public benefit.
At the hearing in May, the tribunal will consider an application by the Independent Schools Council for a judicial review of the commission’s guidance on how fee-charging schools can demonstrate that they provide public benefit.
The hearing will also consider a reference from Dominic Grieve, the Attorney-General, which asks it to clarify how the public benefit test applies to fee-charging schools.
The evidence and witness statement the ERG has submitted to the tribunal, which sets out the facts it will rely on during the hearing and the line of argument it will take, says the Charity Commission’s principles for assessing public benefit include "benefits must be balanced against any detriment or harm".
"We note that this principle was not applied by the Charity Commission to independent schools," the document says. "We consider that it is applicable to them and that it should now be applied to them.
"Private schools have significant ‘disbenefits’ to society: for example, by removing able and committed pupils from the state sector and by being one of the most significant barriers to social mobility," it says.
"For this reason, they cannot show public benefit by pointing to debatable or nebulous wider benefits, such as saving money for the state or providing well-educated pupils."
The ERG statement says it supports the commission’s principles for assessing public benefit, which include "the opportunity to benefit must not be unreasonably restricted by ability to pay any fees charged" and "people in poverty must not be excluded from the opportunity to benefit".
It says each charitable private school should have to prove individually that it "is operated to meet a charitable purpose", but does not state explicitly whether the ERG believes the commission should set thresholds for the level of bursaries or other benefits that would be required to prove a public benefit.
Some independent schools have called for levels to be set, and the Attorney-General’s reference seeks clarification of this.
The ISC declined to show Third Sector a copy of the evidence it has provided to the tribunal.