• In the case of Independent Schools Council v Charity Commission 2012 ch 214, it was held that it was for the trustees of independent schools to determine how those schools are to be ran as charitable trusts.

Facts of the Case

  • In this case, the court needed to assess an application for judicial review by the claimant council (ISC) in relation to guidance issued by the defendant Commission on the public benefit requirement contained in the Charities Act 2006 s.2 and s.3.
  • The Attorney General was also required to determine a refence regarding the operation of charity law in relation to independent schools.

Issues in Independent Schools Council v Charity Commission 2012 ch 214

  • The guidance by the Commission focussed on two stated principles of public benefit relating to Equity and Trust law: there must be an identifiable benefit and that benefit had to be to the public or a section of the public.
  • Charity trustees were to have regard to the guidance when exercising their powers and duties. The ISC, an organisation representing over 1,200 schools, considered the Commission’s guidance to be erroneous and over-prescriptive and claimed that it should not usurp the function of the school trustees in determining how the purposes of a charity should be furthered.
  • It sought an order quashing the parts of the guidance which provided that, where benefit was to a section of the public, the opportunity to benefit was not to be restricted by ability to pay fees.

Held by Upper Tier Tax Tribunal  

  • Independent fee-paying schools held to be charitable if they do the minimum required to allow access to no fee-payers.

Judgment

  • Here, fee paying schools may fall under the heading of the advancement of education if the benefit requirement can satisfy those non fee payers.
  • A trust for the advancement of education was not necessarily for the public benefit, even if it was directed to a sufficiently wide section of the community. The terms of a particular trust had to be considered on a case-by-case basis.
  • The provision of mainstream education in the schools concerned in the instant application was for the public benefit in the first sense. Whether that public benefit was outweighed by disbenefits arising from the charging of fees required a balancing exercise and in the instant case the material before the court had not displaced the conclusion that the nature of the education provided was for the public benefit (paras 94-113). However, the further question was whether the class of beneficiaries, those able to afford the fees, was a sufficient section of the community.
  • A charitable organisation which in practice excluded poor people remained a charity; what it had to do was to make some provision for the poor to pass the de minimishurdle and to provide more than a token benefit. On that basis, the guidance stating that a person’s exclusion because of an inability to pay would not have aims that were for the public benefit was wrong.
  • If the guidance should not be read in that way, it was ambiguous and confusing and should be clarified. The guidance stating that there was a practical requirement that people who could not afford to pay had to be able to benefit in some other material way was obscure and problematic. The guidance required a level of benefit which the Commission considered to be reasonable and which went beyond that which was necessary. However, that was not a requirement. Although it was necessary that there be more than a token benefit, once that low threshold was reached, what the trustees decided to do in the running of a school was entirely up to them, subject to acting within the range within which trustees could properly act. That was entirely different from imposing on trustees anyone else’s view about what was reasonable. In some circumstances, it might be that the trustees would be acting properly if they provided a quite modest benefit for the poor in excess of the de minimis level. The public benefit requirement would then be fulfilled.
  • The principle that the opportunity to a section of the public to benefit had not to be unreasonably restricted by an ability to pay fees, and that people in poverty had not to be excluded, was wrong.
  • “Our Decision will not, we know, give the parties the clarity for which they were hoping. It will satisfy neither side of the political debate. But political debates must have political conclusions, and it should not be expected of the judicial process that it should resolve the conflict between deeply held views. We venture to think, however, that the political issue is not really about whether private schools should be charities as understood in legal terms but whether they should have the benefit of the fiscal advantages which Parliament has seen right to grant to charities. It is for Parliament to grapple with this issue. It is quite separate from the issues which have dogged the many committees which have, over the years, addressed reform of charity law but have never been able to come up with a definition of charity of more use than the concept which has developed through case law.” [260]

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