Tribunal decision responses: Case is 'ultimately political' and 'not a victory for ISC'

Karl Wilding, head of research at NCVO

Tribunal decision responses: Case is 'ultimately political' and 'not a victory for ISC'4

Governance | Tania Mason | 14 Oct 2011

The Upper Tribunal’s judgment in the public benefit case should not be seen as a victory for the Independent Schools Council, some sector commentators have said.

Karl Wilding (pictured), the NCVO’s head of research, said the real winners in the case are “charities and the public”.

Karl Wilding told that the claim of victory by the lawyers representing the Independent Schools Council is misplaced, because the true picture of the verdict is much more nuanced. The NCVO was an intervener in the case.

‘More clarity’

Wilding said: “Charities have won because they now have clarity about what to do on public benefit, and the public have won because this reinforces the fundamental principle that public benefit is what charity is about.”

“It’s also useful for charities because we now have concrete examples, in paragraph 196 of the judgment, of what you have to do to enable those that cannot afford the fees, to benefit from the service.”

He advised any charity that charges fees or is considering doing so, to read the judgment carefully. “The sector is struggling, and more and more organisations are moving to a fee-paying model,” he said. “Trustees now have a proper framework for making decisions.”

‘No clarity’

But law firm Stone King lamented the fact that the verdict “does not deliver the absolute clarification of charity law that many, including we at Stone King, had hoped for”.

Partner Jonathan Burchfield said: “We must first say that we do not regard this judgment as a ‘victory for the ISC’ in quite the way that some have already suggested.

“There is much in the judgment that supports the Charity Commission’s interpretation of the law and recognises the difficult role it was given by the Charities Act 2006. However, it is clear that the Commission’s guidance will need to be rewritten and to be less prescriptive than has been the case.”

He went on: “The Tribunal was at pains to emphasise that its decision will not please any of the parties.  There can ultimately be no clarity on all the questions arising without a political conclusion to what is a political debate - namely, whether independent schools should have the benefit of the fiscal advantages available to charities, not whether they are, legally, charities.”

‘A missed opportunity’

The Education Review Group, the other intervener in the hearing, described the decision as a “missed opportunity”.  It pointed out that the Tribunal described as “astonishing” the level of luxury provided by some schools and said it would have liked the Tribunal to go further in stating what schools should and should not do to prove they provide public benefit.

18 Oct 2011

I think the exchange above typifies the problem with this debate. People want the Charity Commission, and now the courts, to rule on the moral issue of whether an independent school deserves to be a charity. Neither of them has the power to do that, only parliament, so instead of blaming the participants and bemoaning the current state of affaries concentrate on lobbying MPs.

Stephen Lulsley
Independent Commentator and Consultant
17 Oct 2011

In my view, no fee-paying school should be allowed charitable status. If a fee-paying school wishes to offer free scholarships out of its profits, to exceptional pupils from underprivileged backgrounds, so be it, but why woudl they need to have charitable status to do so?

17 Oct 2011
Response to [Stephen Lulsley]

Could I rephrase your response
"In my view, no fee-paying opera should be allowed charitable status. If a fee-paying opera wishes to offer cheap tickets out of its profits, to [selected people] so be it, but why would they need to have charitable status to do so?"

Why is it so much worse for a charity to charge middle class parents for their education than to charge middle class toffs to visit the opera and still get charitable status?

Or what about care homes (charging for residential care like private companies do) or the National Trust (charging rich middle class visitors to see posh houses - like private owners do)

PS For the avoidance of doubt, I have no connection to any educational charity charging or otherwise!

Stephen Lulsley
Independent Commentator and Consultant
20 Oct 2011
Response to [GA]

Replying to GA, I think you miss my point. Most private schools are a business and have no charitable purposes whatsoever, so why are they allowed charitable status?

While many were set up by ancient guilds and more latterly by philanthropists in the 19th century, seeking to provide equal opportunity for the poor and disadvantaged, it seems to me that very few seem to now offer free scholarships and the like to those unable to pay.

40 years ago, my wife and her sister were both awarded free scholarships to an arts educational school in recognition of their exceptional talent. They both went on (my wife in particular) to signifIcant careers in the performing arts. This same school, which retains its charitable status, it seems no longer offers such scholarships/bursaries to any significant level if at all and is a significant profit making business.

For the record, I would also question opera houses and care homes having charitable status unless both were providing services and access to all including those who could not afford either otherwise.

As far as the National Trust is concerned, it is a totally different case. The NT may not be the most egalitarian organisation in the country and as a member, I disagree with much that it does. However, to suggest that it is only there to "charge rich middle class visitors to see posh houses - like private owners do" is patently untrue and ridiculous. Such houses are part of our history and national fabric; also, what about the miles and lies of coast and land which are being preserved for us all, rich and poor, to enjoy free of charge?


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