The chair and chief executive of the Charity Commission have written a letter to stakeholders and MPs defending the regulator's decision to fail two out of the five independent schools it investigated during its recent public benefit assessment exercise.
Last month the commission announced that Highfield Priory School in Preston and St Anselm's School in Derbyshire did not provide enough means-tested bursaries to allow poor children to derive benefit from their activities.
A number of newspaper comment writers responded by accusing the commission – and chair Dame Suzi Leather in particular – of carrying out a Government policy of antagonism towards independent schools.
The commission's letter, signed by Leather and Andrew Hind, chief executive of the commission, says: "Some of the coverage has been somewhat misleading, so we wanted to give our key stakeholders some information and the opportunity to ask any questions you may have."
It points out that the assessment exercise also looked at five religious charities and three care homes, and that the public benefit requirement arises from the 2006 Charities Act. "After hundreds of hours of debate, Parliament decided that the best way to help charities adapt to this new level playing field was through the independent charity regulator," it says.
The public benefit test is "very close to what the public expect from charities", according to Leather and Hind. They say: "Many polls have shown that the public have a very straightforward view of what charity is all about, and that is providing for people in need. This is the primary role of the Charity Commission as a regulator – to maintain public trust and confidence in charity.
"The Charity Commission has a long history of making decisions independently, transparently and impartially, based on the legal framework within which we are required to operate. That is exactly what we are doing now."
James Sinclair Taylor, head of charities at law firm Russell-Cooke, welcomed the letter and said the criticism of the commission was predictable after politicians' failure to define public benefit in the Charities Act had unfairly tossed the "political hot potato" to the regulator.
"Despite the shouts of those affected by the ruling, I am not at all sure that the general public would have much sympathy with schools where the amount of bursary and other fee support to those facing hardship was below 1 per cent," he said.
But Nicola Evans, a senior associate at Bircham Dyson Bell, described the commission's approach as extraordinary. She said: "It is using public money, not to make a formal briefing to Parliament in accordance with its constitution, but apparently as a knee-jerk reaction to some adverse media coverage. This defensive reaction smacks of a regulator that has lost touch with its true stakeholders and is suffering from mission drift."
Ros Harwood, head of charities and independent schools at Dickinson Dees, said the commission's letter could open it up to further questioning about public benefit, which could have an impact on its resources. She said: "I would have thought that if the commission had confidence in its guidance, it would not need to write this letter of self-justification."