At a hearing on public benefit before the Public Administration Select Committee last week, Dame Suzi Leather, chair of the commission, said independent schools would be judged case by case on whether they satisfy the new public benefit test, introduced by the 2006 Charities Act.
"I don't see us going down this 'it's got to be 5 per cent or 10 per cent or three people' route," she said. "Every situation is going to be different."
In its draft consultation on public benefit, published in March, the commission said independent charitable schools that charge high fees would have to prove they are providing educational benefits to the wider public if they want to continue to be charities.
This would include, for example, providing free or subsidised places, or partnering with local state schools.
It had been expected that, in its final guidance, to be published in October, the regulator would clarify how many of these activities independent schools would have to undertake.
But Leather said: "I don't think that we are in a position to set overall thresholds for the sector."
The commission's draft guidance on public benefit proposed that charitable private schools would have to do more to keep their charitable status than simply allow local clubs to occasionally use their facilities. It stated that "people on low incomes must be able to benefit" from charities, including those that charge fees.
During the consultation period, the NCVO urged the commission not to water down these proposals (Third Sector, 30 May). The consultation period ended on 6 June.