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Schools' High Court challenge to public benefit guidance transfers to Charity Tribunal

Governance | Tania Mason | 8 Oct 2010

The High Court has transferred the Independent Schools Council’s challenge to the Charity Commission’s interpretation of the law on public benefit, to the Charity Tribunal, to be heard alongside the Attorney-General’s reference on the matter.

The ISC had launched judicial review proceedings against the Commission’s public benefit guidance back in February, but in the meantime the Attorney-General made a reference on related questions of public benefit to the Charity Tribunal. This is expected to be heard within a few weeks and may, according to charity lawyers, result in the public benefit guidance having to be rewritten.

Yesterday in the High Court the ISC argued for its judicial review to be allowed to go ahead, and all parties agreed that if it is to go ahead, it should be heard in the Tribunal alongside the Attorney’s reference.

Mr Justice Sales ruled that the ISC’s claim should be heard, and that it had the potential to add to the scope of the arguments arising out of the reference.

Matthew Burgess, ISC deputy chief executive, said: “Our schools have had to wait a long time, but the court has finally confirmed today that ISC’s central contention – that the Charity Commission’s guidance on public benefit is legally flawed – is robust and should receive a full hearing.”

In a statement, Farrer & Co, who was one of the law firms representing the ISC, said the decision should be welcomed by schools and charities generally, as “it will provide the best opportunity to get a definitive view and comprehensive ruling on the true meaning of public benefit, particularly in the context of fee-charging charities”.

The Charity Commission said: "We accept, like any public body, that the way in which we carry out our statutory responsibilities is subject to legal challenge.

"In preparing all our guidance on public benefit, the Commission was at all times diligent in consulting charities and others affected, and in making clear the process we had followed.  We set out our legal reasoning clearly and carefully alongside our guidance.  We stand by our approach and the legal analysis which underpins it, and we are confident that the Commission has acted reasonably and followed due process."

 

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