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The Independent Schools Council has applied for judicial review of the Charity Commission’s ruling on how charities are required to show a public benefit.
The Attorney General is planning to refer the case to the Upper Tribunal, where it would be expected to be heard by High Court judges specialising in charity and trusts law. The Upper Tribunal will be able to provide a ruling on the interpretation of the law relating to public benefit which may be used in later decisions by the Charity Commission and other bodies. No date has yet been fixed for the hearing.
The decision under challenge is that, in order to be considered charitable, fee paying schools now need to demonstrate that they provide a public benefit through means-tested assisted places or other services to their local community above and beyond providing education to their fee-paying pupils. The schools are claiming that this is a misinterpretation of the Charities Act 2006 and that their provision of education provides a public benefit on its own.
The proposal to refer the case to the Upper Tribunal is also significant. If the case were not referred to this higher tribunal, it would be heard in the less specialised Administrative Court, which could only have ruled whether the Charity Commission’s decision was right or wrong in the case in question. It could not have made a wider ruling on future interpretation of the law. The move indicates the importance that is being attached to the new public benefit test and the Charity Commission’s related decisions relating to fee-paying schools and other fee paying charities such as care homes which used to be assumed to be charitable without any need to pass the public benefit test.
Many operators of schools and care homes registered each as charities will be surprised that a challenge has not been made sooner.
We will provide further information when a date for the hearing is confirmed. For further information please contact charles.tetlow@devonshires.co.uk
