Two fee-charging schools that initially failed the public benefit test passed it later without needing to raise their fees, according to a new report from the Charity Commission.
One of the objections to the regulator's public benefit guidance by the Independent Schools Council has been that it is likely to force schools to charge higher fees to fund more bursaries.
The implication of the commission report is that this is not necessarily the case. A judicial review of the guidance, requested by the ISC, is to be heard by the charity tribunal in May.
The report, Emerging Findings, summarises the commission’s second round of public benefit assessments, which covered arts, leisure and recreation charities.
It also discusses the first round of public benefit tests, which looked at the public benefit provided by independent schools and care homes.
It says the two private schools that initially failed to show they provided a public benefit, St Anselm’s School Trust in Derbyshire and Highfield Priory School in Lancashire, later passed the public benefit test with plans that did not involve increasing fees.
"In both cases, the schools produced plans which included offering new or additional bursary assistance, financed by fundraising, together with increasing the other educational benefits they provide in the local community," the report says.
"Neither of the schools’ plans was based on a need to increase fees in order to make these changes."
The report says the schools passed the public benefit test with programmes that included working with local communities and state schools as well as offering bursaries.
It says fee-charging charities should be innovative in finding ways to make sure those who cannot afford the fees can benefit from their work.
"Whilst providing free or subsidised access is an obvious way of providing opportunities to benefit for people who cannot afford the fees, what matters is that the opportunity to benefit for people who cannot afford the fees is, overall (when taken together with any other significant opportunities to benefit that do not involve providing free or subsidised access), more than minimal or tokenistic or occurring by chance," it says.
"It does not mean that all people who cannot afford the fees must actually benefit. What is important is that they must not be excluded from the opportunity to benefit, whether or not they actually choose to do so."
The report says the commission’s public benefit assessments took account of information provided by the charities, reports by other regulators, direct feedback provided by audiences and participants and "independent reviews from verifiable sources".
One of the commission’s guidelines for assessing public benefit says it will also consider any "detriment or harm" caused by a charity.
The report says that in practice this guideline was implemented using measures including "a preliminary review of the Charity Commission’s data and case files", and consideration of recent media reports relating to the charity.
The regulator concluded that it would not be a "proportionate use of our resources" to conduct a more detailed investigation into detriment or harm, the report says.