The Office of the Scottish Charity Regulator will continue to "maintain a higher level of vigilance" over the public benefit provided by fee-charging schools, according to a report on its review of 52 charitable private schools.
Since 2006, the OSCR has reviewed the charitable status of 52 private schools in Scotland, asking whether their fee and bursary structures meant they provided benefit to only a section of the community rather than the public as a whole.
Of these schools, 40 met the test for charitable status; 10 failed it initially, but then passed after complying with a direction from the OSCR to improve their support to those unable to afford the fees.
Fernhill has encountered financial difficulties, so the OSCR review has been paused while the school appoints new trustees and changes its governance structure. Struthers is subject to a separate OSCR inquiry into an unrelated matter.
A spokesman for the regulator said he could not give any further details about the inquiry, but said both schools continued to operate and would have their reviews resumed in due course.
The report says that the rate of failure justifies the OSCR's initial assessment that there was a high risk of private schools not providing sufficient public benefit.
It says: "It is therefore reasonable for OSCR to continue to maintain a higher level of vigilance concerning the compliance of this group of charities."
The OSCR will now work with some of the schools that it says need to improve the quality of their trustee annual reports, in particular by reporting on the public benefit they provide. It will also identify selected schools – prioritising those that have failed the charity test in the past or where other issues emerged in the review – for specific monitoring under the new annual reporting regime, due to be introduced next year.
John Edward, director of the Scottish Council of Independent Schools, said: "This concise report should be essential reading for all those who seek to pass comment on the independent sector. It details the long and often difficult process for schools to meet a test that was designed, legislated for and implemented in the Scottish parliament."
The report says the OSCR now aims to consult on a new draft of its guidance Meeting the Charity Test – which contains the principles used in the school reviews – at some point in early 2015.