The Scottish Council for Voluntary Organisations has said that fee-paying schools should not have charitable status, and that a test which allows them to do so is not working.
The comments were made in SCVO’s response to a consultation by OSCR, the Scottish Charity Regulator, on the draft charity test guidance, which has now closed.
SCVO has said it wants to see the Scottish government undertake a full review of the Charities and Trustee Investment (Scotland) Act 2005, as there are “clearly still some problems with the charity test”.
In reviewing the section in the guidance on public benefit, private benefit, undue restrictions and disbenefit, SCVO wrote: “A primary concern with OSCR’s application of the charity test is the issue with the charitable status of some fee-paying schools and the interpretation of the ‘undue restrictions’ test that has been applied.”
The undue restrictions test says that a charity cannot provide public benefit if the section of the public it serves is too small - particularly if it is restricted to those with the ability to pay high fees.
SCVO went on to say that given the “median proportion of available income spent on means-tested bursaries by fee-paying schools covered in OSCR’s recent report was 6.1 per cent, many people will be unconvinced that this can be considered sufficient mitigation of undue restriction.”
SCVO said it welcomes OSCR’s commitment to “maintain a higher vigilance with regard to fee-paying schools”. But it said it does not believe "that the charity test as it stands is working if it allows schools of this type to have charitable status”.
The umbrella body for voluntary organisations in Scotland added that it appreciates that this is “a complex issue with implications beyond fee-paying schools”, such as Gordonstoun School (pictured), but that the work of the Scottish Parliament’s Public Petitions Committee needs to go further in addressing this issue.
In December 2014, a summary report produced by OSCR on fee-charging schools which reviewed the status of 52 of them found that ten had failed the charity test. OSCR concluded that fee-paying schools are at a “high risk” of failing the charity test.
Definition of sport
SCVO mentioned another concern raised to them by the Scottish Sports Association, referring to the definition of the advancement of public participation in sport.
The Association said it was concerned that OSCR's definition of what is meant by sport is different to the definition that the national sports councils adhere to. In the draft guidance sport must involve both “physical skill and exertion”, which would limit sports, including shooting, where there is little exertion but significant physical skill involved.
SCVO praised the new guidance for being more accessible, in particular the introduction of a “web specific version” which is navigable on mobile devices and “provides access to specific information more quickly”. It also said that the “plain language adopted throughout the document makes it easier to understand”.
SCVO added that it would be beneficial if the guidance contained more diagrams or flow charts to illustrate processes such as the various elements that make up the charity test, but commended its use of numerous case studies.
OSCR plans to publish the updated version of its charity test guidance in the summer of this year.
