Independent Schools Council Judicial Review and Attorney General Reference
What the proceedings are about
There are two sets of proceedings currently before the Upper Tribunal. The crux of the issue in both proceedings centres upon what charities charging high fees must do in order to meet the public benefit requirement.
The Independent Schools Council has brought judicial review proceedings challenging (i) the lawfulness of the Charity Commission’s ‘top level’ guidance on public benefit, and its sub sector guidance on public benefit and fee charging and (ii) the way it has applied that guidance when carrying out its public benefit assessments.
In September the Attorney General made a reference to the First Tier Tribunal (Charity) asking a series of questions about how the public benefit requirement applies in the context of fee-charging independent schools.
The Attorney General’s Reference has been “fast-tracked” to the Upper Tribunal and the ISC judicial review claim has been transferred to the Upper Tribunal so that both sets of proceedings can be heard together.
Why NCVO is intervening
Both sets of proceedings raise important issues of principle, which affect not only independent schools but all fee-charging charities and potentially the sector as a whole. In the interest of its 8,700 members, NCVO believes it is important for the Tribunal to consider the wider potential ramifications that any decisions it makes in these proceedings could have on other fee-charging charities and the charitable sector as a whole.
Given its long-standing involvement and experience in the public benefit debate, NCVO hopes to be able to assist the Tribunal in determining the effect that the recent legislative changes have had in legal and practical terms on the issue of whether an organisation exists for public benefit.
What NCVO hopes will emerge from these proceedings are clear guidelines about what charities (and their trustees) need to do in order to meet the public benefit requirements.
NCVO’s position on public benefit
NCVO believes that to maintain public trust and confidence in the “charity brand” it is important that there is a level playing field whereby all charities must demonstrate that they exist for public benefit.
As stated in our response to the Strategy Unit report in December 2002, NCVO is not interested in attempting to ensure the inclusion or exclusion of particular types of organisations from charitable status. However, we do consider that all organisations which benefit from charitable status should be able to demonstrate that they provide public benefit and that they therefore meet a test of public character.
NCVO’s witness statement in detail
NCVO supports and indeed takes issue with both parties’ cases in different respects.
NCVO thinks the over-arching principles the Charity Commission has identified in its guidance are correct: namely that every charity must be able to demonstrate that it provides identifiable benefits to the public or a sufficient section of the public. NCVO agrees that if a charity charges high fees and confines the benefits it delivers to those who can afford the fees this could call into question whether it provides benefits to a sufficient section of the public.
However NCVO considers the Charity Commission’s guidance lacks clarity in some respects. NCVO agrees with the ISC that there appears to be a mis-match between what is said in the Charity Commission’s guidance and the way in which the Commission has applied the Guidance in its public benefit assessments. In particular the Commission appears to have placed an undue emphasis on means-tested bursaries or subsidies as the principal way of delivering public benefit and conversely accorded too little importance to other forms of benefit.
Read NCVO's full witness statement.
For all press inquiries please contact Mandy Murphy in NCVO’s press office on 07714 243 942 or email mandy.murphy@ncvo-vol.org.uk.
The National Council for Voluntary Organisations (NCVO) www.ncvo-vol.org.uk is the umbrella body for the voluntary sector in England, with sister councils in Wales, Scotland and Northern Ireland. NCVO has over 8,400 members, ranging from large national bodies to community groups, volunteer centres, and development agencies working at a local level. With over 280,000 staff and over 13 million volunteers working for our members, we represent and support almost half the voluntary sector workforce.
