The Independent Schools Council’s application for a judicial review of the Charity Commission’s public benefit guidance will be heard in the charity tribunal, alongside a series of questions about the guidance that have been submitted by the Attorney General, Dominic Grieve.
At a High Court hearing last week, the ISC’s application for a judicial review of the commission’s guidance was approved, and the case was transferred to the Upper Tribunal (Tax and Chancery).
If the tribunal rules in favour of the ISC, the commission could have to rewrite its guidance on public benefit and fee-charging charities.
Last month, the Attorney General filed a series of questions about the commission’s guidance with the charity tribunal. The case is expected to be transferred straight to the Upper Tribunal.
The Attorney General outlined a series of hypothetical situations in which independent schools make various attempts to pass the commission’s public benefit test, asking which of those scenarios would satisfy the commission that charity law had been observed.
Matthew Burgess, deputy chief executive of the ISC, said he decided to continue with the judicial review application alongside the Attorney General’s reference because, if it was successful, it would allow the court to quash the guidance. Grieve’s intervention would not have this effect, he said.
Burgess said he did not agree with the questions posed by the Attorney General because they related to specific situations, rather than the principles of charity law.
A statement from the commission said: "In preparing all our guidance on public benefit, the commission was at all times diligent in consulting charities and others affected and in making clear the process we had followed.
"We stand by our approach and the legal analysis that underpins it and we are confident that the commission has acted reasonably and followed due process."