Independent Schools Council considers legal challenge on public benefit

Charity Commission 'wrong to discount up to £4bn savings to public purse'

The Independent Schools Council is considering a legal challenge to the Charity Commission's verdicts that two out of the five fee-charging schools it assessed recently do not provide enough public benefit to justify their charitable status.

It is also considering a High Court challenge to the commission's interpretation of the 2006 Charities Act, according to its chief executive David Lyscom in an interview in today's Guardian newspaper.

Last month the commission announced that Highfield Priory School and St Anselm's School did not provide enough means-tested bursaries to allow poor children to derive benefit from their activities.

It gave the schools three months to "confirm their intention to address these matters" and a further nine months to agree a plan with the commission.

The commission also claimed its verdicts were not open to legal challenge at this point because it had not used any of its statutory powers.

A commission spokeswoman said that, in telling the failed schools that they must agree a plan, the commission was acting in furtherance of its general objectives and functions, indicating actions that were necessary for them to meet the public benefit requirement.

She said: "In theory, if the charities fail to undertake the required actions - and in no case is this actually anticipated - then further consideration would be given here to the use of the commission's regulatory powers. A decision to use those powers, depending on the detail, may well result in the right for an appropriate party to bring the matter before the Charity Tribunal."

Lyscom told The Guardian that the ISC was considering a High Court challenge to the commission's interpretation of the 2006 Charities Act. His deputy, Matthew Burgess, told the paper that the options also included taking the cases of the individual schools to the Charity Tribunal.

Lyscom said: "There is the potential to test this in the courts. That's a major and expensive step to take. So at the moment we're not saying we'll definitely do it, but it is an option we may have to consider."

He said the commission was wrong to discount from its public benefit assessment the £3bn to £4bn a year he claimed independent schools saved the taxpayer by taking children out of the state education system.

He said: "The commission asks what these schools are doing for the poor. The answer is the poor are not paying as much tax as they otherwise would, therefore they are less poor than they would be if our schools didn't exist."

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