The Charity Commission is planning to resist pressure to tell charitable independent schools what level of bursaries they should give in order to demonstrate that they provide sufficient public benefit to justify their charitable status.
This is made clear in evidence the watchdog has submitted in advance to the charity tribunal, which in May will consider an application by the Independent Schools Council for a judicial review of the Charity Commission’s guidance on how fee-charging schools can demonstrate they provide public benefit.
It will also consider a reference from Dominic Grieve, the Attorney-General, which asks it to clarify how the public benefit test applies to fee-charging schools.
Some independent schools have called for the commission to indicate the level of bursaries they should provide in order to meet the public benefit requirement. The Attorney-General's reference also seeks clarification of this.
But the commission's advance evidence to the tribunal says it "does not wish to prescribe minimum or maximum thresholds for the amount of means-tested fee assistance that should be provided by charitable schools in general, or by any particular school".
The document also says "the extent to which any charitable school should provide means-tested fee assistance is a matter to be decided by its charity trustees in accordance with the general law, which includes a duty to have regard to the commission’s guidance".
It says fee-charging schools can pass the public benefit test without offering any bursaries to those who cannot afford the fees.
"The commission considers that, in the case of a charitable school which offered no means-tested fee assistance, other opportunities to benefit would have to be robust, effective and extensive," the evidence says.
"However, the commission considers that such other opportunities to benefit could in principle count on their own."
The document says the commission will consider all opportunities to benefit from the activities provided by a private school.
"The commission’s position is that the question of whether the trustees of a charitable school are administering it so as to provide public benefit is answered taking all opportunities to benefit into account," it says.
However, it is unclear whether these opportunities must be related to education, because the next sentence points the tribunal to the statement in the commission’s guidance on public benefit that refers to "the totality of the benefits arising from carrying out its aims".
A commission spokeswoman said she was unable to provide a clarification of whether it would consider non-educational benefits provided by private schools when assessing their public benefit, because any clarification would have to be provided during the hearing rather than before it.
The evidence will be the basis on which the Charity Commission makes its argument at the tribunal hearing in May, and will be published in full on the charity tribunal’s website before the hearing begins.
The ISC declined to show Third Sector a copy of the evidence it has provided to the tribunal.