24th October 2011

Charity Law: New decision on Private Schools

OSCR regulates charities in Scotland and one of its functions is to determine whether charities continue to meet the charity test.  As charitable status brings tax benefits, an important part of the charity test is that charities can demonstrate that their activities have public benefit.  

OSCR in Scotland and the Charities Commission in England and Wales have for some time been looking into whether private schools deserve charitable status.  OSCR has already issued directions to private schools such as St. Leonards in St.Andrews and Merchistons in Edinburgh that they need to widen their public benefit.  More directions have been issued south of the border.

In England and Wales, the Independent Schools Council, representing 1,260 schools, has taken the Charities Commissioner to court challenging the way that it applies the public benefit test.  A tribunal decision of 14 October 2011 has confirmed that there is too much emphasis on bursaries for poorer children and there is a need to examine the wider charitable work that schools are involved in.   

New guidance is expected shortly as to whether this approach will be followed in Scotland or whether the focus will remain on public access to school places.

Sarah Winter
Senior Solicitor

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