Rosamund McCarthy: The Charity Commission might be guilty of procrastination but not unlawful action

The watchdog's public benefit guidance should be supported, says our columnist

Rosamund McCarthy
Rosamund McCarthy

The judicial review of the Charity Commission's guidance on public benefit is not a sideshow.

It is important that everyone understands what is at stake. The issue - a bit oversimplified - is whether charitable schools that charge high fees have a legal duty to help people who can't afford them. The commission says they have. Some independent schools argue that facilitating wider access is not essential. The outcome will have implications for the public benefit guidance as a whole.

One of the key public benefit principles in the guidance is that "people in poverty must not be excluded from the opportunity to benefit". That accords with basic principles of charity law, but some charity lawyers do not agree that it applies to education. Their view is that the commission's emphasis on helping those in poverty is unlawful and even politically motivated.

If the commission loses the case, some will cast doubt on its competence as a whole. This would be wholly unjustified. In drawing up the public benefit guidance, the commission acted fairly and squarely within its powers. It would have been preferable for the Charities Act 2006 to be clearer - seldom has Parliament left a regulator in such a difficult position. But I consider that the commission has not acted illegally.

Even without the permitted gloss of modern circumstances, case law suggests that trustees of a school have a duty to use their resources as effectively as possible in charity law terms. Trustees should not endlessly improve their facilities, for example, if the same resources could be used to help a larger group. Schools with a hallmark of excellence might say that, to some degree, the duty to benefit poorer people creates a difficult balancing act. They are right, but it is a balancing act that charity trustees are required to engage in.

As a charity lawyer, I often have run-ins with the commission. When they get it wrong, I say so. But in this case I believe we should support the guidance it has produced. About concerns that the commission is politically motivated, I can only say that I have never experienced that. On occasion, there is obfuscation, procrastination, wrong-headedness - but not political prejudice. We should not let the media onslaught about this against the commission continue unchallenged.

And if charitable schools do not have any legal duty to help those living in poverty, it would be a very perverse world.

Rosamund McCarthy writes in a personal capacity.

- Rosamund McCarthy is a partner in law firm Bates Wells & Braithwaite.

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