Editorial: Upper Tribunal reasserts primacy of charity trustees

Its decision on private schools and public benefit accepts some but by no means all of the case made by the Independent Schools Council, says Stephen Cook

Stephen Cook, editor
Stephen Cook, editor

When both sides are claiming victory, you can be pretty sure that the battle was something of a stalemate. And so it was with the Upper Tribunal's decision on fee-charging charitable schools and public benefit last week.

The Independent Schools Council immediately asserted that the ruling had overturned and discredited the Charity Commission's guidance on the subject. It focused on extracts that described parts of the guidance as obscure or wrong.

Hard on its heels came the commission, welcoming the fact that the tribunal had agreed with its interpretation of the law "on the key issues", while accepting that some parts of the guidance did not explain the law clearly enough. Can they both be right? The answer, as is often the case in this complex area of charity law, seems to be: yes - up to a point.

The decision's strongest criticism comes in connection with parts of the guidance that say the opportunity to benefit must not be unreasonably restricted by the ability to afford fees, and that people in poverty must not be excluded from the opportunity to benefit.

These parts are criticised mainly because of their suggestion that a fee-charging school provides public benefit only if the provision it makes for the poor is reasonable, as defined by the commission: the tribunal insists that what constitutes a reasonable level of provision is a matter for the trustees of the charity.

But the decision also makes it clear that, as a matter of principle, no charity can entirely exclude the poor from its benefits. This is a blow for the ISC, which argued that school trustees could, if they chose, decide not to make any provision for the poor on the grounds that, among other things, the school was, by its existence, already giving benefit to a sufficient section of the public.

The strongest overall theme is that power is shifted back to trustees, and the role of the commission scaled down to some extent, in decisions about the provision of public benefit.

Read analysis about the decision

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