Against the backdrop of an accelerated academy programme and calls from many, including former schools minister Lord Adonis, for independent schools to examine their consciences and step up to the plate (in the case of academies, as sponsors),  it is not surprising that many fee-paying schools are concerned as to what they should be doing to ‘justify’ their charitable status. This article explores whether this is the right question to be asking and what approach trustees should be taking in the increasingly complex political and ideological environment.

The starting point may be to recognise that, as creatures of long evolved statute and case law, charities are not obliged to (and nor should they) bend to the political will of the day but must exercise independent judgment as to how best they might flourish in the particular climate. Reassuringly, the Upper Tribunal in the Independent Schools Council (ISC) case for judicial review of the Charity Commission’s public benefit guidance relating to education and fee charging confirmed that how a charity achieves its objects is a matter for the trustees’ discretion in the context of their own particular circumstances. Whilst this discretion is subject to the caveat that any school which excludes the ‘poor’ in practice on a permanent basis would not be acting properly within its objects it is clear that there is no “one size fits all” approach to be adopted.  Although the Tribunal considered some de minimis level of benefit at least must be provided, this is a low threshold which may be crossed in a myriad of ways including, not least, the extensive bursary programmes historically offered by such institutions.

The Commission’s draft revised guidance, consulted on in 2012, included a section on how to make provision for people who cannot afford the full fees. Although William Shawcross, the Commission’s new Chairman has reportedly signalled a sea change in the Commission’s stance, recognising the Commission cannot define the public benefit each school is giving, if the published guidance includes this section, it should be approached with caution. Any school’s beneficiary class will inevitably be a class wider than those who can afford full fees, but that is not to say that every independent school should rush off in search of suitable academy partnerships or work their way through a tick box exercise. Each school must consider the scope of its own charitable objects to determine the parameters within which it may act and then decide how best to provide educational benefits to those falling within its own beneficiary class.

The perceived political pressure on independent schools can be magnified by the ongoing public benefit debate. For example a survey conducted for the University and College Union in 2009 suggested that 56% of the public wanted private schools to lose their charitable status and the Treasury to spend the £100m it would allegedly receive as a result on improving education for the neediest in society. This overly simplistic view, and the implication that charitable status is something which can be bestowed or removed at will, is one to be resisted.  As Lord Hodgson commented in opening his review of the Charities Act 2006 (“Trusted and Independent: Giving charity back to charities” – July 2012 at Para 1.1) the oldest charity in England is believed to be King’s School, Canterbury, established in 597: independent schools have long been central to the concept of charity in this country. As the Upper Tribunal confirmed in the ISC case, independent schools are charities because of what they were established to do not because of what they do (ISC v Charity Commission, UKUT 421 (TCC) at para 191).

Independent schools should consider sponsorship only if it coincides with furthering their own charitable aims.

This article was originally produced for the 'Independent Education Today' in March 2013.