Trustees of fee-charging schools are "not expected to do the impossible" and would have their individual circumstances taken into account when their public benefit is assessed, the Charity Commission has told a court.
Robert Pearce QC, the commission's barrister, made the comment during the Upper Tribunal hearing on the commission's public benefit guidance at the Royal Courts of Justice on Friday.
He said: "Sometimes, trustees feel they can't offer any assistance to those who can't afford the fees."The trustees are not expected to do the impossible. The law and guidance allows them to adjust to a change of circumstances."
Talking about the commission's approach to assessing the public benefit of private schools, Pearce said: "It's not a case of taking a snapshot. They've got to look at a significant period of time and any difficulties they may have."
Pearce said the commission would look not only at how many people unable to afford the fees were benefiting from a fee-charging school, but also at those whom trustees were attempting to help – "not just those who actually do benefit", he said.
Mr Justice Warren, the lead judge in the case, said it was difficult to see how a fee-charging school that gave fee assistance to 10 per cent of its pupils would be charitable if a school that gave no such assistance would not.
He described a case from 1967, in which a trust that funded a school was refused charitable status because 90 per cent of its beneficiaries were linked to a company called Metal Box.
The judge told Pearce: "At the moment, I haven't grasped why there's a difference between that case and this, and it is absolutely central to your case."
The case is expected to conclude on Wednesday.