Robert Pearce QC told the hearing in the Upper Tribunal (Tax and Chancery) yesterday: "The commission’s programme of public benefit assessments is now at an end. "Irrespective of the outcome of this case, the commission intends to review the guidance in the light of its experience of its use."
He said the commission had to adopt a pragmatic approach to public benefit by private schools. "The trustees of a school have to charge fees to run the school, so most places go to those who can pay the fees," he said. "However, if they administer it solely for the class of fee-paying children, it is not operating for the public benefit."
He said the Independent Schools Council’s claim earlier in the hearing that the commission’s approach to public benefit had led it to "micro-manage" trustees’ decisions was "the opposite of the truth".
"Trustees simply cannot be told in advance what they should do [to provide a public benefit]," he said. "Like all trustees, they should make up their own minds. It is not a criticism of the law or the guidance that it doesn’t provide them with a one-size-fits-all guide to the decisions they have to make.
"The suggestion that the commission micro-manages trustees is the opposite of the truth."
The National Council for Voluntary Organisations and the Education Review Group, which have joined as interveners in the case, also made their submissions yesterday. The NCVO’s barrister, Francesca Quint, said: "The commission’s guidance on public benefit could be clearer, so the proposal that it should be reviewed after this week is welcomed."
David Lawson, speaking on behalf of the Education Review Group, said the ISC’s argument that those who could afford an independent school’s fees represented a sufficient section of the public to be a public benefit "leads to the risk of an absurd conclusion".
Lawson also said the commission had taken a "principle-based approach" to assessing public benefit, and it would be difficult to argue that this was the wrong approach.