Private schools contest 'vague' charity rules

Independent schools say the law is difficult for trustees to assess what they can and cannot do

The independent schools sector has accused the Charity Commission of introducing "vague, uncertain, legally flawed" new rules on charitable status.

The commission brought in a new public benefit guidance test to assess whether schools are sufficiently charitable and adequately help the less well-off.

The 2006 Charities Act means they no longer have automatic charitable status and must prove their benefit.

The Independent Schools Council (ISC) is challenging the law at a tribunal.

Charitable status brings tax benefits to independent schools believed to be worth more than £100m a year. Since April 2008 they have had to prove that they provide a public benefit in exchange foe that tax-fre status.

But independent schools say that they are offering means-tested bursaries worth over £200m a year.

'Vague and uncertain'

The ISC was successful in its bid for a judicial review last year and the Charities Tribunal hearing - taking place at the Upper Tribunal at London's High Court - is expected to last more than a week.

The organisation, representing 1,260 schools, says the guidance is too narrow, and does not take into account all the charitable work that schools are involved in.

Nigel Giffin QC, appearing for the ISC on Tuesday, said: "We say the test of whether you have done what is reasonable or appropriate in the circumstances is so vague and so uncertain that it leaves [school] trustees wholly unable to say with a reasonable degree of certainty what they must or must not do in order to avoid any breach of trust."

As a consequence, he said, the commission "gets pulled in to second-guessing and micro-managing trustees' decisions about how to carry out their duties and run the charity".

Mr Giffin continued: "The ISC has not brought these proceedings because it thinks that widening access to independent charitable schools is a bad thing or an unimportant thing.

"It is the position of my clients that widening access is an important and valuable thing.

"The [ISC] evidence sets out in some detail the very considerable lengths the sector, taken as a whole, already goes to to widen access and engage in partnership activities.

"The practical problem that concerns many of its members is that, because of the commission's approach to what is a strict legal requirement, it has become very difficult - impossible even - for the trustees to know what they can or cannot do."